Spousal protection should go beyond 'nuclear family' definition, lawyers argue
The protection to not testify against one’s spouse should extend beyond society’s 1992 definition of the “nuclear family”, lawyers have told the Court of Appeal.
The case concerns a Circuit Court ruling on whether two women could be compelled to give evidence against their partners, with whom they were in ongoing relationships but were not married at the time.
Both men had been charged with a single count each of attempting to pervert the course of justice in 2012. The effective evidence against them, as alleged, was to be found in statements made by their partners, which were sought to be admitted under 16 of the Criminal Justice Act 2006. The men’s details cannot be published as they were acquitted by direction of the trial judge.
At trial, defence lawyers successfully challenged the admissibility of the evidence on the basis that the women were in ongoing relationships with the accused and, as such, they couldn't be compelled to testify against them.
It was submitted that although the women were not spouses within the meaning of the Criminal Evidence Act 1992, they were in ongoing relationships and should be regarded as same.
The Court of Appeal heard that there would have been no doubt about what the word “spouse” meant in 1992, but since then, it had not been defined.
Counsel for one of the acquitted men, Philip Sheahan SC, said it was "absurd" to think that spousal protection did not extend beyond the definition of the “nuclear family” in 1992.
Counsel for the other acquitted man, Paddy McCarthy SC, said there was one definition of marriage in 1992 but “we’ve come a long distance” since then.
In the Circuit Court, Judge Thomas Teehan ruled that the evidence of the two mens' partners was inadmissible. He accordingly directed the jury to acquit the two accused.
The Director of Public Prosecutions has moved to appeal the men's acquittals under Section 23 of the Criminal Procedure Act 2010
The appeal was originally moved “with prejudice”. However, the men had since married their partners - "happily so," according to one of their barristers - and a retrial will not now arise. The case was thus advanced "without prejudice" on a point of law.
Generally, spouses cannot be compelled to give evidence against their partners as it forces them to choose between giving truthful evidence, thereby jeopardising their relationship, and giving unreliable evidence. The European Courts have recognised that in such a circumstance, there were two competing public interests, namely the prosecution of serious crime and the protection of family life from state interference.
Counsel for the DPP, Anthony Salmon SC, submitted that if the Circuit Court Judge's ruling was to be repeated in other trial courts "as is inevitable, it would have consequences for very many prosecutions".
Mr Sammon said the Oireachtas had numerous opportunities to extend the definition to include “girlfriends, co-habitees and civil partners” but had not done so.
President of the Court of Appeal Mr Justice George Birmingham, who sat with Mr Justice John Edwards and Mr Justice Patrick McCarthy, said the court would reserve its judgment.
