Introduction
The law of evidence in England and Wales seeks to ensure that court proceedings are fair and that verdicts are reached based on reliable information. A key part of this framework involves rules of privilege, which allow certain communications to be kept confidential and permit some witnesses to refuse to give evidence. One of the most historically significant, yet evolving, areas of privilege concerns spouses. The traditional view was that forcing one spouse to testify against the other would be destructive to the marriage, an institution the law sought to protect. However, this principle has been significantly modified to reflect a competing public interest in the prosecution of crime, particularly serious offences that occur within a family setting. This essay will discuss the principles of spousal privilege and confidentiality, focusing on the modern rules of matrimonial privilege, the related privilege against self-incrimination, and the overarching role of the public interest. It will argue that the law has moved away from an absolute protection of marital harmony towards a more pragmatic balance, prioritising justice in serious criminal cases.
Matrimonial Privilege
Historically, the common law held that a spouse was generally incompetent to give evidence for or against their partner in criminal proceedings. This was based on the legal fiction that husband and wife were one person in law, and also on the public policy ground that forcing spousal testimony would endanger marital peace (Keane and Fortson, 2022). Over time, this absolute bar was eroded, and the current law is now primarily governed by section 80 of the Police and Criminal Evidence Act 1984 (PACE).
Section 80(1) of PACE 1984 establishes the modern starting point: in any proceedings, the spouse or civil partner of a person is competent to give evidence. This means they are permitted to testify if they choose to do so. The main privilege is found in the rules on compellability. Section 80(2) states that the spouse of a defendant is competent but not compellable to give evidence for the prosecution. This means that while a spouse can choose to testify against their partner, they cannot be forced to enter the witness box for the prosecution. This represents the modern form of matrimonial privilege; it is a privilege of the witness spouse to refuse to testify, not a right of the defendant spouse to prevent them from doing so.
However, this privilege is not absolute. The public interest in prosecuting certain types of crime has led to significant exceptions. Section 80(3) of PACE 1984 provides a list of "specified offences" where a spouse is not only competent but also compellable for the prosecution. These exceptions include:
- An offence involving an assault on, or injury or a threat of injury to, the spouse or a person who was at the material time under the age of sixteen.
- A sexual offence alleged to have been committed in respect of a person who was at the material time under the age of sixteen.
- Offences of attempting, conspiring, aiding, or abetting the above offences.
The list of specified offences in section 80(3) is exhaustive. The House of Lords confirmed in R v L [2008] UKHL 36 that courts have no power to create new exceptions or to compel a spouse to testify in cases not covered by the statutory list, even if it seems to be in the interests of justice. This provides a degree of certainty but also shows the limits of the public interest exception as defined by Parliament.
It is crucial to note that the historic privilege for marital communications, which protected the content of conversations between spouses, was explicitly abolished by section 80(9) of PACE 1984. Therefore, if a spouse is a competent and compellable witness (for instance, in a case involving a specified offence) or if they choose to testify when they are not compellable, they cannot refuse to disclose what was said between them and the defendant spouse. The privilege today is about whether the spouse has to testify at all, not about what they can be asked once in the witness box.
Self-Incrimination
The privilege against self-incrimination is a fundamental principle of English law, allowing a person to refuse to answer a question or produce a document if doing so would tend to expose them to a criminal charge. This privilege is extended in a specific way within the spousal context by PACE 1984.
While a spouse is generally not compellable for the prosecution, they are both competent and compellable for the defence, whether for their own spouse or a co-accused (s.80(2)). In this situation, a different form of privilege comes into play. Section 80(4) of PACE 1984 states that a spouse, when giving evidence for the defence, "shall not be compellable… to disclose any matter which occurred during the subsistence of the marriage or civil partnership". This sounds like a reintroduction of the old marital communications privilege, but its scope is limited. The subsection goes on to state that this protection does not apply where the witness spouse could be compelled to give evidence for the prosecution under the section 80(3) exceptions.
Therefore, the practical effect of section 80(4) is to give a spouse testifying for the defence a right to refuse to answer questions that might incriminate their defendant partner. However, this right is removed if the defendant is on trial for one of the specified offences, such as assaulting the witness spouse or a child. In those serious cases, the witness spouse, even if called by the defence, can be forced to answer questions about what happened during the marriage. This again illustrates the legislative balancing act: protecting a spouse from having to incriminate their partner is a secondary consideration when the alleged crime is one that society deems particularly serious and destructive to family life itself.
Public Interest
The concept of the public interest is central to understanding the modern law on spousal testimony. The rules in PACE 1984 are a clear example of Parliament weighing two competing public interests: the interest in protecting the institution of marriage and the interest in ensuring that those who commit serious crimes are brought to justice. The general rule of non-compellability for the prosecution in section 80(2) serves the first interest, while the exceptions in section 80(3) serve the second.
The decision to make spouses compellable witnesses in cases of domestic violence and child abuse reflects a significant shift in social and legal policy. It acknowledges that the harm caused by these crimes outweighs the traditional desire to preserve marital harmony at all costs. The abolition of the marital rape immunity in R v R [1991] UKHL 12, though a matter of substantive criminal law, is part of the same trend, demonstrating that the law will no longer treat the marital relationship as a shield for criminal wrongdoing.
Beyond the specific rules in PACE, the public interest can also defeat claims of confidentiality. While the statutory privilege for marital communications is gone, a duty of confidence might still exist between spouses in equity. However, this duty is not absolute. The courts have long held that there is "no confidence in iniquity" (Munday, 2022). This means that a person cannot rely on a duty of confidence to prevent the disclosure of information about a crime or serious wrongdoing. As seen in cases like A v B plc [2002] EWCA Civ 337, where a public interest in disclosure is established, it can override private duties of confidentiality. Therefore, if one spouse tried to use a civil action for breach of confidence to prevent the other from revealing details of a crime to the police, it is almost certain that the court would find the public interest in the investigation of that crime to be the stronger consideration. The public interest in protecting society from crime is generally held to be a more powerful justification for disclosure than the private interest in maintaining confidentiality between partners.
Conclusion
In conclusion, the law regarding spousal evidence in England and Wales has undergone a fundamental transformation. The old principle of protecting the sanctity of marriage through an absolute evidential privilege has been replaced by a more nuanced statutory framework under PACE 1984. The primary protection that remains is not a privilege over communications, but a rule that a spouse is not compellable for the prosecution in most criminal cases. However, this protection is deliberately removed by Parliament where the public interest in prosecuting serious offences, particularly those involving domestic violence and harm to children, is paramount. The specific rules relating to self-incrimination further demonstrate this legislative balancing act. Ultimately, the modern law on spousal privilege and confidentiality shows a clear policy choice: while the marital relationship is still afforded some protection, it will not be allowed to stand in the way of justice when serious crimes have been committed.
References
A v B plc [2002] EWCA Civ 337
Keane, A. and Fortson, P. (2022) The Modern Law of Evidence. 14th edn. Oxford University Press.
Munday, R. (2022) Evidence. 11th edn. Oxford University Press.
Police and Criminal Evidence Act 1984
R v L [2008] UKHL 36
R v R [1991] UKHL 12
