Court of Appeal: Unmarried partners can be compelled to give evidence

About this case:

• Citation:
  [2019] IECA 2
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

Stating that there could be absolutely no doubt that the reference to “spouse” meant only a married spouse, Mr Justice George Birmingham, President of the Court of Appeal said arguments to the contrary were for the Oireachtas to consider, not the Courts.

Background

In relation to murder in County Tipperary, JC and MC were persons of interests, and along with their brother, James C, they were charged with attempting to pervert the course of justice in 2012.

MA and JC had been in a relationship since 2010, she was the mother of his two children and was pregnant at the time of the trial. MA had given a witness statement implicating JC with having asked her to lie about a significant matter, giving MC an alibi.

KF and MC had been in a relationship for 7 years and was the mother of his 7-month-old son at the time of the trial. KF had provided a statement which the prosecution proposed to rely on against MC – she had stated that she picked up MC along with another man at a relevant roadside location at a particularly relevant time and was asked by MC not to tell Gardaí about it.

Circuit Court

On the third day of the trial, MA was called as a prosecution witness – she was asked whether JC had said anything about the murder or the deceased and responded “no, not that I can remember anyway”. MA continued to answer questions in the same way. The jury was asked to withdraw and Counsel for the prosecution indicated that he wished to make an application pursuant to s. 16 of the Criminal Justice Act 2006.

Before MA was about to be recalled to the witness box, Senior Counsel for JC indicated that he had an objection to the evidence of MA on the basis that she was not a compellable witness given that she was the partner of the accused, the mother of his children and they had been together more than three years.

Counsel for JC said that he was objecting to her evidence and referred to s. 21 of the Criminal Evidence Act 1992, and Senior Counsel for MC indicated that he was taking a similar position.

The Circuit Court Judge ruled “[i]f this application was not made in the context of a s. 16 application, the situation might perhaps be different: but in the circumstances, I am deeming the evidence of MA and KF inadmissible”.

The consequence of that ruling was that two days later, the Judge directed the jury to return verdicts of not guilty against JC and MC.

Court of Appeal

The DPP initiated a with prejudice appeal seeking a number of reliefs, including orders:

• Determining that the Circuit Court had erroneously excluded compelling evidence
• Quashing the acquittals
• Directing that JC and MC be retried

By the time the appeal was listed before the Court of Appeal, MA and JC had been married, as had KF and MC. As such, the DPP accepted that there could be no reality to ordering a retrial.

There was however an issue about the extent to which the other evidence had actually been adduced at trial, and the DPP proceeded with a without prejudice appeal.

The Circuit Court Judge who had presided over the trial summed up the rationale for the exclusion as down to “…‘the changing landscape’, the fact that non-marital relationships are recognised across such a broad sphere now in our law and in public life, and generally, that I felt that this was something which was, in effect, encompassed in the Criminal Evidence Act.”

Mr Justice Birmingham considered Van Der Keijden v. The Netherlands [2012] ECHR 588 which considered testimonial privilege, which in the Netherlands provided for “spouses” and for “registered partners”, but not for those in a de facto relationship. The majority of the Grand Chamber found that there had been no violation of Article 8 ECHR, and while accepting that compelling the applicant to give evidence in criminal proceedings against her partner interfered with the applicant’s right to respect for family life, such interference was found to be “necessary” under Article 8(2) in circumstances where there had been a failure to have the partnership registered.

Mr Justice Birmingham said that it was significant that the Oireachtas, in the in the context of the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 – which he commented was an extremely detailed statute – did not amend the Criminal Evidence Act 1992. He said that the 2010 Act was so comprehensive that it was inherently improbable that the Criminal Evidence Act 1992 was inadvertently overlooked.

As such, there could be absolutely no doubt that the reference to a “spouse” in the Criminal Evidence Act 1992 means only a married spouse. Any arguments to the contrary were for the legislature, not for the Court.

In those circumstances, Mr Justice Birmingham said that there were not any other relationships, apart from a spousal relationship established by marriage, amenable to the non-compellability provisions of the Criminal Evidence Act 1992.

• by Seosamh Gráinséir for Irish Legal News