Court of Appeal, Criminal Division

Published May 14, 2008

Regina v L (Evidence of wife)

Before Lord Phillips of Worth Matravers, Lord Chief Justice, Mr Justice Bean and Mr Justice Wilkie

Reasons May 7, 2008

There was no requirement to tell a wife that she was not a compellable witness against her husband before interviewing her about a crime of which her husband was suspected.

The Court of Appeal, Criminal Division, so held in a reserved judgment, giving reasons for dismissing, on April 16, 2008, an appeal by L against his conviction at Mold Crown Court (Judge Merfyn Hughes, QC and a jury) on October 25, 2007, on five counts of indecent assault and four counts of rape.

Mr John Philpotts, assigned by the Registrar of Criminal Appeals, for the appellant; Mr Karl Scholz for the Crown.

THE LORD CHIEF JUSTICE, giving the judgment of the court, said that while the appellant was in custody, the police had approached his wife and she had made a short statement.

At trial the prosecution had called the wife as a witness. However, the judge had ruled that she was not a compellable witness against her husband, under section 80 of the Police and Criminal Evidence Act 1984, and the wife had declined to give evidence.

The prosecution had then applied to admit the wife’s statement to the police under section 114 of the Criminal Justice Act 2003 and the judge had ruled that he had power to do so and that it was in the interest of justice that he should do so.

Should the police have told the wife that she could not be compelled to give evidence against her husband before taking a statement?

The appellant submitted that where the police would be obliged to caution a husband before taking a statement from him, they should tell his wife that she could not be compelled to give evidence against her husband before taking a statement.

Their Lordships could see no basis for such a requirement. The need to caution a suspect arose from the fundamental principle that a person could not be required to give evidence that might incriminate himself. The policy against compelling a wife to give evidence against her husband was not the same.

To caution a wife before taking evidence from her could inhibit the investigation of crime. The policy that prevented a wife from giving evidence against her husband did not require such a limitation upon the powers of investigation of the police to be implied.

Accordingly, there was no requirement to tell a wife that she was not a compellable witness against her husband before interviewing her about a crime of which her husband was suspected.

Having said that, it did not follow that there might not be circumstances in which the police would be well advised to make it plain to a wife that she need not make a statement that implicated her husband.

If a question was raised as to whether it was in accordance with the interests of justice to admit a wife’s statement, the prosecution’s hand was likely to be strengthened if it could show that the wife made her statement voluntarily, having been expressly informed that she was under no obligation to make it.

Should the wife’s statement have been excluded automatically or as a matter of discretion?

The appellant submitted that it was tantamount to compelling a wife to give evidence against her husband if, when she refused to testify orally, her statement was adduced as hearsay evidence, so that to adduce evidence in such circumstances offended against the spirit, if not the letter, of section 80 of the 1984 Act.

However, compelling a wife to give evidence was not the same thing as permitting another witness to give evidence of a voluntary statement made by the wife in the past. Thus section 80 did not pose a legal bar to the admission of such evidence.

Nevertheless, it could well be objectionable if the police took a witness statement from a wife, intending to call her to give evidence, and then sought to place it in evidence when the wife stated that she did not wish to give evidence against her husband.

There was an obvious paradox in excusing the wife from giving evidence, but then placing before the jury in the form of a hearsay statement the very evidence that she did not wish to give. In any such case, whether it was just to admit the statement had to depend upon the facts.

In the present circumstances, their Lordships could see no injustice in admitting the statement.

Solicitors: Crown Prosecution Service, Wrexham.

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