Spousal Compellability? Support for Marriage or Complete Myth
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Evaluate R v Pearce  1 Cr App R 39 and the wider law on spousal compellability.
All witnesses who are competent are also compellable1, unless one considers the compellability of spouses. Whilst married partners are compellable to testify on behalf of their spouse2, no such universal compellability arises for the prosecution. The testimonial privilege was once an undefeatable rule of the common law3 unless it involved violence against the other spouse4. Arguably, the …show more content…
Therefore, under the current position of the law, harmony is assumed simply by virtue of a marital contract34. This blind approach to marital harmony has the unsatisfactory consequence of protecting wholly sham marriages35
Next, the court in Pearce was invited to consider the breadth of testimonial privilege in relation to family members; Kennedy LJ was arguably more dismissive of this extension stating that the arguments were even weaker36. In reference to the arguments already made, such an assertion is incorrect. The court’s evident favourability of objective verification in regards to the marital contract is equally applicable to family members, who can be ascertained as objectively through marriage or consanguinity.
Furthermore, the rationales aforementioned37 which underpin the spousal privilege are also equally applicable. This justification is arguably arbitrary and the reasoning compounded by Kennedy LJ arguably fails to provide any further persuasive argument against the extension. However, whilst the judgement is lacking in its clarity, it is important to note that any extension of the testimonial privilege is beyond the powers of the court and will require statutory intervention38.
Next, whilst the introduction of the three compellable offences in S.80(3)39; offences of domestic violence against the spouse40, violent or sexual offences committed against children under the age of sixteen41 and inchoate offences of a similar nature42