| CRIME — Evidence — Admissibility — Non-compellable wife refusing to give evidence at husband’s trial — Wife’s previous statement to police admitted — Whether properly admitted — Whether police having duty to warn wife that non-compellable before taking statement — Police and Criminal Evidence Act 1984 (c 60), s 80 — Criminal Justice Act 2003 (c 44), s 114
R v L [2008] EWCA Crim 973; [2008] WLR (D) 142
CA: Lord Phillips of Worth Matravers CJ, Bean and Wilkie JJ: 7 May 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. A statement obtained from the wife in such circumstances could be admitted in evidence at the husband’s trial even though the wife refused to give evidence against her husband, provided that that did not lead to any injustice.
The Court of Appeal, Criminal Division, so held in giving reasons for dismissing, on 16 April 2008, an appeal by L against his conviction at the Crown Court at Mold before Judge Hughes QC and a jury on 25 October 2007 on five counts of indecent assault and four counts of rape.
LORD PHILLIPS OF WORTH MATRAVERS CJ, 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, pursuant to s 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 under s 114 of the Criminal Justice Act 2003. The judge had ruled that he had power to admit the statement under s 114 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 from her? 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. 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. However, 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 they 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 automatically excluded or excluded as a matter of discretion? 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 s 80 of the 1984 Act 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 or not it was just to admit the statement must depend upon the facts. In the present circumstances, there was no injustice in admitting the statement.
|
