BA, R v

Whether an offence is a specified offence for spousal compellability under section 80 of the Police and Criminal Evidence Act 1984 depends on the legal nature of the offence charged, rather than the factual circumstances or evidence expected at trial. The word involves is broad, but the offence must itself encompass a real possibility of assault, injury or a threat of injury.

An offence under section 2(a) of the Criminal Damage Act 1971 concerns property and does not meet that condition. A spouse is therefore not compellable to give prosecution evidence on such a charge. Clear statutory language cannot be expanded merely to cure perceived anomalies; any reform is for Parliament.

The Crown appealed, with leave granted at the hearing, against a terminating ruling of Mr Recorder Marrin QC in the Crown Court at Blackfriars.

BA was charged under section 2(a) of the Criminal Damage Act 1971 with threatening to destroy or damage his wife's flat. The prosecution alleged that, during a domestic argument, he threatened to burn the home while the children were present and turned on the gas appliances. His wife declined to give evidence voluntarily.

The Recorder held that she was not compellable under section 80 of the Police and Criminal Evidence Act 1984. The issue was whether the charged property-damage offence involved an assault, injury or threat of injury within section 80(3)(a).

1. The Crown's appeal was dismissed. The Recorder was right to hold that the wife was not a compellable witness.

2. Section 80(3)(a) of the Police and Criminal Evidence Act 1984 directs attention to the nature of the offence. The court adopted a broad and purposive construction, informed by the balance between obtaining convictions and limiting compelled evidence between spouses. But that construction does not permit classification by the particular evidence expected to emerge at trial.

3. The word involves does not require assault, injury or a threat of injury to be a formal ingredient of the offence. It is sufficient that the legal nature of the offence encompasses a real possibility of one of those matters. The court approved the approach in R v Robert Paul Lee [1996] 2 Cr App R 266 and R v McAndrew-Bingham [1999] 2 Cr App R 293, while recognising that their preference for classification by the charged offence had not decided this precise issue.

4. Practical considerations reinforced that conclusion. Compellability must be ascertainable at the outset from the charge. A fact-specific approach could make the answer depend upon evidence that might not emerge as anticipated and would give section 80 an unlimited reach.

5. Section 2(a) of the Criminal Damage Act 1971 is directed to threats to property. Unlike section 2(b), it does not encompass the requisite real possibility of assault, injury or threat of injury. It was therefore not a specified offence, irrespective of the alleged domestic circumstances.

6. The court acknowledged anomalies in the statutory scheme, including the position of cohabitants and the possible admission of a spouse's statement under section 114(2) of the Criminal Justice Act 2003. It left open any reconsideration of R v Pearce [2002] 1 Cr App R 39. The clear construction of section 80 could not be altered to remove those anomalies; that was a matter for Parliament.

• Court of Appeal (Criminal Division): The Crown was granted leave to appeal at the hearing, but its appeal against the terminating ruling was dismissed: [2012] EWCA Crim 1529.
• Crown Court at Blackfriars: Mr Recorder Marrin QC ruled that the wife was not a compellable witness under section 80 of the Police and Criminal Evidence Act 1984. The ruling was treated as terminating.