The general presumption of competence and compellability applies to a former co-defendant subsequently pleading guilty.

Two defendants, D and G, both under 16 years were charged with robbery, respectively of a 13-year-old and an 11-year-old. In the case of D but not of G the testimony of the alleged victims was to be given under the provisions of the then prevailing s21(5)
YJCEA 1999. This provided for a mandatory presumption that, in cases of sexual or other violent offences, the evidence of non-defendant witnesses under the age of 17 should be given by live television link. This was granted by the judge in the case of D but not by the judge in the case of G after hearing the defence argument that the presumption breached Art 6. The Crown applied for judicial review. It was appealed to the House of Lords.

The House unanimously held that the court had no power to disapply the presumption. There was no breach of Art 6 in applying SMDs for vulnerable non-defendant witness. Article 6(3)(d) did not give the defendant a right to a face-to-face confrontation with his accuser. Nothing in the 1999 Act prevented the court using its inherent powers to assist the defendant to give the best evidence possible.

The appellants, who had not testified at trial, appealed on the grounds that the trial judge had not given a proper direction on the application of s35 CJPOA 1994. They argued that the discretion to draw adverse inferences should only apply in exceptional cases.

The Court of Appeal rejected the arguments put. It specified, however, that the jury should be carefully directed on the uses to be made of the defendant’s failure to testify.

The former wife of a council planning officer testified at his trial that he had corruptly received free petrol in return for favours. At the time of the alleged offences the two were married and she would have been incompetent as a witness against him. The law had been changed in 1986 to make a former spouse competent as a witness against his or her ex-spouse. The court held that the provision should not have been applied retrospectively.

Once a marriage is legally terminated a former spouse or civil partner is competent to testify about matters which occurred while the marriage existed.

The appeal turned on whether the second wife of a Moslem defendant whose first wife was alive at the time of marriage was both competent and compellable as a witness against him.

The position of a woman who had gone through a valid form of marriage which was of no effect in English law was no different from that of a woman who had not been through a ceremony at all or whose marriage was void because it was bigamous.

The defendant’s long-term unmarried partner made statements which were prejudicial to him. At trial she gave answers which were inconsistent with her statements and was cross examined by the prosecutor as a hostile witness. His appeal on the grounds that the ECHR required his partner be treated as if she were his wife was dismissed.

The rules on the compellability of spouses do not apply to a cohabitee with whom the accused had not formed a marriage or civil partnership.

Wife gave evidence as a prosecution witness at husband’s trial without sufficiently appreciating her right to refuse to testify against him.

Once a spouse elects to give evidence, provided he or she has had the right of refusal clearly explained by the trial judge, he or she is to be treated as any other witness. Here the conviction was overturned. Note that in R v L (2009) Lord Phillips stated that neither law nor policy required that police inform a spouse of a right not to make a statement or give evidence against the defendant before taking a statement from the spouse.