INTROAt the current time the law relating to spousal compellability seems to be in an extremely unsatisfactory point, and has been so for a considerable amount of time. In her article Brabyn highlights a number of points the legislature and judiciary have had to consider and balance in their decisions whilst forming the law. Here I will examine the current status of the law, review commentaries on it from various quarters and how the law may come to develop in the future.DEVELOPMENT Brief run through, initial case law position of a spouse being lacking competence when it came to testifying against their significant other/other party of the relationship - (SO) with just a few exceptions. Will note the three branches of spousal compellability compellability as a prosecution witness, a defence witness and where both spouse and SO are co-accused. In relation to being compelled for as a witness for the defence, the situation is rather cut and dry, and in keeping with the general rules of evidence if the spouse has evidence than can be used for the defence, (s)he can be compelled to give evidence. The other two branches however, are more problematic. One of the key aspects of the law in relation to spusal compellability for the prosecution came from PACE 1984 following Hoskyn. Brief recap of Hoskyn focusing on the error the HL found the trial judge had made and the subsequent quashing of the conviction, meaning the HL was happy to maintain the status quo. Important to note the criticism the HL received due to this decision, and the notable judgement of Lord Edmund-Davies . The majority judgements showed an inherent weakness/injustice in the law, severely limiting the ability to prosecute in various situations, particularly in cases involving domestic violence, where an abused spouse is extremely unlikely to testify against their SO due to fear of reprisals/the psychology of abusive relationships.The criticism of Hoskyn did however have an impact, and was taken into account by Parliament when drafting PACE 1984, particularly s.80(3). However, the law could be argued to have largely upheld the status quo, by maintaining the general marital privilege, and only providing three exceptions ; in respect of violent offences against the spouse/an under 16 year old, a sexual assault against an under 16 year old, or in the cases of inchoate liability re: the above offences. CRITICISM OF THE CURRENT LAW A number of issues are readily apparent. Firstly, there are more practical issues in relation to the drafting of the law. For example, the notable absence in s.80(3)(a) of sexual offences against the spouse being compellable, this is an borderline shameful oversight in the legislation. At the time of drafting marital rape was still not viewed as a criminal offence, and as such there would be no reason to have provisions relating sexual offences in this section. However as the archaic law was finally changed, this item of legislation is woefully out of date and leaves the potential of being used to protect potential rapist/sexual offenders in marriage.Secondly there is the arbitrary line in the sand the legislation draws by having the compellability of the spouse end upon the (alleged?) victims 16th birthday. There is no reason that could justify this distinction, as there is no sudden change in a victims vulnerability or fortitude at the stroke of midnight on their birthday. The deeper problem however, is that it only provides a very narrow band of protection, not taking into account mental or physical disability, mental age or old age. The law could be improved by extending this exception to particularly vulnerable persons on a broader spectrum.Another practical problem is referenced, indirectly in the case of R v Pearce 2002 (brief case facts cohabitees, not married, murder witness.). Here the Court of appeal argued that the Article 8 ECHR rights do not call for an extension of the marital privilege to unmarried, but long-term co-habiting couples, a key reason being that the extension fo the privilege would place severe limitations on the ability of the criminal justice system to function. It is clear then that the CA recognises that the privilege limits the justice system, why is it that the limitation created by the amrital exception is somehow acceptable? (Go on to stretch the proposition logically if unfair/wrong to have the justice system create disharmony by necessitating spousal testimony, why not stop police investigations, might the police investigating ones spouse cause awkward/unwanted questions to be asked over the Sunday roast? Possibly refer to/attack Brabyns comment re: the spouse being at risk f physical harm from the family if their SO is liable to threaten/harm their wife, might they do the same of the wife questions their innocence?)There are also the moral questions that arise from this. First, there is the fundamental question of why should the law hold the rights of a married couple as sacrosanct, and clearly superior to the rights of potential victims to receive justice for wrongs done to them. Brabyns arguments that the law should remain as it is to promote marriage/to prevent or slow the institutions continuing decline seems to argue that the enforcement of the criminal law (or arguably the handicapping of the enforcement of the criminal law) should be used as a tool of social engineering. It should be argued that the in, as Brabyn refers to a liberal democratic state public and personal freedoms should be respected, as such the law is unjust in the unfair and unjust privilege it gives to married couple for two reasons. First, in that there is no reason why a married couple should be viewed as more important or worthy to society to be treated specially and secondly, there is no reason for the institute of marriage should be viewed as more important than the functioning of the criminal justice system.

There is other problem with the law is what seems to be the judiciarys attempts to undermine it by (most likely incorrectly) using s.119 of the CJA, as seen in the cases of R v BA and R v L. In both these situations the marital privilege was overwritten by the CJA s.119 provision that llows the inclusion of hearsay evidence for the interests of justice. This raises a number of issues. First, that the judiciary seems, clearly to be against the current law, presumably seeing it as unjust, and being in line with the views expressed in Lord Edmund-Davies dissenting judgement. S.119 should not be applicable here, and it is likely that should a case come before the Supreme Court the cases will be overruled, and the correct action of criticising the law and requesting Parliament review it will be taken.The second issue that arises is due to the wording of the legislation, read as written, it could be argued that the preservation of the sanctity and harmony of marriage is held in higher regard by statute than the interests of justice.Law can also be criticised for leaving the choice of whether to testify or not in the hands of the spouse. If a spouse is legally compelled, under threat of imprisonment to testify in court, they really have no choice, the current situation however, is that in the vast majority of cases, it is for the wife to decide where they would do anything for love but [they} wont [remain silent][footnoteRef:1]. Surely putting the wife at greater risk of being pressured to remain silent, or as Brabyn refers to, be threatened. [1: I would do anything for love Meatloaf, Bat out of Hell 2: Back into hell]