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Fiscal · Joined: 23 Dec 2008 Posts: 111 Location: Edinburgh

Interetsing points.

To clairfy to ScotKatz......a spousal witnesses cannot be compelled to give evidence against their husband or wife. I/e They cannot be forced to give evidence.....the same law applies for civil partners but not cohabiting unmarried couples.

I agree with Mr McKie.

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Mr Fiscal

scotkaz · Joined: 28 Aug 2008 Posts: 527

Fiscal · Joined: 23 Dec 2008 Posts: 111 Location: Edinburgh

As long as the neighbour's account of the events can be corroborated then yes...

otherwise we could all be making such allegations against our neighbours....

i/e if the neighbour phoned to say s/he heard screaming and an argument etc and the police show up and the wife (or husband) looks injured then the spouse can be questioned and detained under section 14 of the criminal procedure (scotland) act and charged if there is enough corroborated evidence to justify reporting it to the procurator fiscal.
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Mr Fiscal

W.Roughead · Joined: 25 Oct 2008 Posts: 120 Location: Scotland.

Big Wullie · Joined: 25 Apr 2007 Posts: 1149 Location: Glasgow

Fiscal

Big Wullie · Joined: 25 Apr 2007 Posts: 1149 Location: Glasgow

Angeline · Joined: 02 Oct 2008 Posts: 148

Perhaps it's just me, but doesn't this say the opposite of what fiscal was claiming? If the husband is battering the wife senseless, and the police charge him, then the wife is a compellable witness, end of story. It's only if he's committed a crime where she is not the victim that she can decline to give evidence.
If I'm understanding this correctly, then what fiscal said is not right - a wife can be required to give evidence against a husband if she is the victim.

1.2 Under the law as it stands, you can only be required to give evidence against your civil partner, husband or wife when they are accused of an offence against you. If the alleged offence has been committed (for example) against one of your children, you can refuse to give evidence without running the risk of being found in contempt of court. However, if a man and woman are living together but are not married, each can be compelled to give evidence against the other regardless of the nature of the alleged offence or the identity of the victim.

2.5 Under Section 264 of the Criminal Procedure (Scotland) Act 1995 a spouse is a competent witness in all circumstances. However, s/he is a compellable witness for the prosecution or a co-accused only where s/he is compellable at common law. In terms of the common law, a spouse is only compellable where the accused is charged with an offence against him or her.

2.6 Essentially if a spouse of an accused is the victim of the crime with which the accused is charged then their marital status is of no consequence. A spouse and an unmarried partner would be a compellable witness for the prosecution. It is only where a spouse is not the victim that he or she can decline to give evidence for the prosecution. So, for example, when the victim is a child of the couple, the spouse of the accused may be an important witness. However, s/he is not a compellable witness, whereas an unmarried partner would be.

2.7 If the spouse of an accused is called as a Crown witness, in circumstances in which s/he is not compellable against her husband or wife, s/he has the option of declining to give evidence. But if s/he elects to give evidence against the accused, s/he cannot decline to answer questions which incriminate the spouse. An unmarried partner cannot decline to give evidence in any circumstances.

http://www.scotland.gov.uk/Publications/2006/06/21135942/1
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Angeline · Joined: 02 Oct 2008 Posts: 148

Sorry, Wullie, I just noticed you said this already!

However, the opening paragraph regarding the consultation in 2006 states "This will mean that spousal partners will no longer be able to refuse to give evidence against their other half" - as I understand it, this would only apply to evidence relating to crimes against persons other than the spouse.

In the scenario outlined by fiscal, the law, at least until 2006 required spouses to give evidence against their partners, and repeal of section 264 would only (presumably) take away their right not to give evidence about other crimes?
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As long as one heart still holds on, then hope will never really be gone

Fiscal · Joined: 23 Dec 2008 Posts: 111 Location: Edinburgh

That is true, but only if she makes an allegation against him. She would need to corroboroate the testimony of another witness so to speak.

And ss264 has not been repealled
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Mr Fiscal

Big Wullie · Joined: 25 Apr 2007 Posts: 1149 Location: Glasgow

Corroboration was not the issue as I understand it the debate was Compellable witness's and whether or not a spouse can be compelled to give evidence or not.

We all understand quite clearly what Corroboration means too

You simply gave out the wrong advice___________ Spouses can be compelled to give evidence in certain circumstances.

And you profess to be a lawyer too.

The Law has changed now meaning a spouse cannot refuse to give evidence, though everyone has the right to remain silent and can refuse to answer any question under the premise that they might incriminate themselves.

Anyone who has given a statement to the police is liable and competent to be called to give evidence and their statements can be read out in open court even if they are dead.