Case No: 2012/01497/C5
Neutral Citation Number: [2012] EWCA Crim 1529
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT BLACKFRIARS
MR RECORDER MARRIN QC

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 11/07/2012
Before :

PRESIDENT OF THE QUEEN'S BENCH DIVISION
MR JUSTICE COLLINS
and
MR JUSTICE SINGH
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Between :

	Regina	Appellant	
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	BA	Respondent	

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G Gelbart (instructed by Crown Prosecution Service) for the Appellant
R Cohen for the Respondent

Hearing date : 27 June 2012
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Judgment
President of the Queen's Bench Division : 
1.	The issue in this prosecution appeal against a terminating ruling relates to the ambit of s.80 of the Police and Criminal Evidence Act 1984 which specifies the circumstances in which a wife may be compelled to give evidence against her husband.  It is necessary first to set out the background circumstances.
The background circumstances
2.	The wife had been married to the husband for 15 years and had three children.  There was a history of domestic violence.  The husband had been cautioned for assault and subsequently convicted for assault in April 2011.
3.	It was the Crown’s case that on 7 June 2011 there was argument between the husband and the wife.  The husband became angry and the wife locked herself in the children’s bedroom.  The husband shouted that he was going to burn the house down with the children in it.  The wife heard him go into the kitchen, press the portable gas igniter and walk out of the flat.  When she left the bedroom she found both hobs and the oven had been turned on.  She made a statement setting out these matters.
4.	The husband was charged with an offence under s.2(a) of the Criminal Damage Act 1971, one of the two offences created by s.2 which provides:
“A person who without lawful excuse makes to another a threat, intending that that other would fear it would be carried out, -
(a) to destroy or damage any property belonging to that other or a third person; or
(b) to destroy or damage his own property in a way which he knows is likely to endanger the life of that other or a third person;
shall be guilty of an offence.”
5.	The indictment was in the following terms:
“Statement of offence
Threatening to destroy or damage property, contrary to section 2(a)  of the Criminal Damage Act 1971.
Particulars of offence
[The husband] on the 7th day of June 2011, without lawful excuse, made to [the wife] a threat to destroy or damage property, namely her flat ….., intending that [the wife] would fear that the threat would be carried out.”
6.	When the case came on before Mr Recorder Marrin QC at the Crown Court at Blackfriars, the wife would not give evidence voluntarily.  He was asked to rule whether she was a compellable witness under s.80(2A)(b) of the Police and Criminal Evidence Act 1984.  Subsections (2A) and (3) provide as follows:
“(2A) In any proceedings the spouse or civil partner or a person charged in the proceedings shall …. be compellable –
…..
(b) to give evidence for the prosecution but only in respect of any specified offence with which any person is charged in the proceedings.
(3) In relation to the spouse or civil partner of a person charged in any proceedings an offence is a specified offence for the purposes of subsection (2A) above if –
(a) it involves an assault on, or injury or a threat of injury to, the spouse or civil partner or a person who was at the material time under the age of 16;
(c) it consists of attempting or conspiring to commit, or of aiding, abetting, counselling, procuring or inciting the commission of, an offence falling within paragraph (a) or (b) above.”
7.	The Recorder ruled that the offence with which the husband was charged was not a specified offence within the meaning of s.2A(3) and therefore the wife was not a compellable witness.  That was treated as a terminating ruling.  An application was made for leave to appeal to this court, but the Recorder refused leave.  The Crown subsequently applied for leave to appeal to this court.  At the hearing of the appeal we granted leave to appeal but dismissed the appeal for reasons to be given later.  These are our reasons.
The issue
8.	The question in the appeal is whether the offence under s.2(a) of the Criminal Damage Act 1971 as charged  “involved an assault on, or an injury or threat to” the wife or children.  S.2 of that Act, as we have set out, draws a distinction between the offence with which the husband in this case was charged, namely the offence under s.2(a) which on its face is an offence purely related to damage to property and the offence under s.2(b) where the offence contains an element of endangerment to life.  It is clear that the offence under s.2(b) by reason of the very elements of the offence is a specified offence, but is the offence as charged under s.2(a)?
9.	The contrasting arguments are succinctly set out at paragraph F4.14 of Blackstone’s Criminal Practice (2012):
“It is unclear, and as yet undecided, whether the ‘involvement’ must be legal (as a matter of legal definition the offence charged requires an assault on, or injury or a threat of injury to, one of the types of person described in s.80(3)(a)) or can be factual (as a matter of legal definition the offence charged does not require an assault on or injury or a threat of injury to one of the types of such person but in fact it did involve, or is alleged to have involved, an assault on or injury or a threat of injury to one of the types of such person).”
10.	Mr Gelbart in elegant and clear submissions on behalf of the Crown put forward the second interpretation whereas Mr Cohen contended that the first interpretation was the correct one.
The authorities
11.	Although the issue is a matter of statutory construction, it is first necessary to refer to two authorities where this court has construed very similar wording in s.32 and s.32A of the Criminal Justice Act 1988 which, at the time the cases were decided, governed circumstances in which a child could give evidence by pre-recorded video or be cross-examined by videolink.  The 1988 Act permitted the evidence to be given in such a way in relation to:
“… an offence which involves an assault on or injury or threat of injury to a person.”
12.	In R v Robert Paul Lee [1996] 2 Cr App R 266, the defendant was charged with arson, being reckless as to whether life was endangered.  It was contended on his behalf that the section did not apply as the defendant did not intend or threaten injury.  The decision of the court was expressed in these terms:
“In our judgment, an offence involves a threat of injury within the meaning of section 32(2) if its circumstances are such that injury to a person is a real possibility. It is not necessary, in our view, that the threat of injury to another person referred to in the subsection should be made directly by the offender. It is the consequences of the offender's activity, which viewed objectively, must present the threat. If they do, then the unlawful activity, the commission of the offence, involves a threat of injury within the meaning of the subsection.
On the facts of this case, we are abundantly satisfied that to do what the appellant did, plainly created a threat of injury to Daniel, and the offence, likewise, created that danger. It was the circumstances of the offence which were operative, as opposed to the intention, the mental element of the offender.”
13.	It seems to us clear, looking at the judgment as a whole, that the court decided two questions.  First that there was a threat which could be assessed by reference to the objective facts.  Second that the offence with which the defendant was charged involved the threat of injury to the child.  That the second issue was so decided is clear from the point of law of general public importance which it was asked to certify and did so in terms:
“Is the offence of arson being reckless as to whether life is endangered … an offence which involves a threat of injury to a person for the purposes of s.32 ….”
It is plain, it seems to us from the nature of the certified question, that the second issue the court must have been considering was whether the offence itself fell within s.32 and not whether the circumstances of the particular offence fell within that section.  Our interpretation of the judgment is supported by the helpful note written by Professor Di Birch in [1996] Crim LR 413.  She identified the second question in these terms:
“Must the threat or risk be one which is required by the definition of the offence to be proved or is it sufficient that the evidence adduced to prove the offence reveals that a risk of injury was present?”
She thought the court had the former in mind.  She concluded her note by saying:
“As the risk of injury may be an element in many offences, including dangerous driving and aggravated vehicle taking, the net would be widely cast even without the variant described above in relation to arson.  With it the possibilities are endless.”
14.	In the second decision, R v McAndrew-Bingham [1999] 2 Cr App R 293, the defendant was charged with two offences of attempted child abduction.  The submission was made that as on the evidence there was no assault or injury or threat of injury, it was not permissible to give the evidence by videolink.  The court concluded:
“In our judgment, the issue in the present case is significantly different from that which arose in Lee and it is not necessary for us to decide whether the offence referred to in section 32(2) means simply the nature of the offence charged in the indictment or whether the Court should also have regard to the evidence supporting the charge in the particular case. We should add, however, that we are strongly inclined to the former view. Each count in the indictment contains Particulars as well as a Statement of the Offence. These should be sufficient to enable the necessary classification to be made. If the offence is properly charged, then the evidence supporting it should reflect its nature rather than some other kind of offence. Moreover, when the offence charged is conspiracy or attempt, the evidence in a particular case may not demonstrate what the specific or completed offence might have been.
The question therefore is whether the offence of child abduction under section 2 of the 1984 Act is an offence of the kind referred to in section 32(2). It is an offence which may be committed without the use of physical force or even the threat of it, for example when the child freely consents to go with the offender. The effect of section 2, and maybe the parliamentary intention also, is to make the taker of the child guilty of a criminal offence whether or not the child did consent and regardless of whether force or the threat of force was involved. Still less does it depend on whether there was a risk of injury, physical or mental, to the child or to the person from whose lawful control the child is taken. But it is equally clear that the offence may involve the use or the threat of force and the risk of injury to the child or some other person. In some cases it does; in others, it may not.”
15.	In both of these decisions, this court, although not deciding the point, has favoured interpretation of “involvement” by reference to the nature of the offence and not the nature of the evidence to be adduced.
Our conclusion
16.	We approach the issue first by giving section 80(2A) and (3) of the 1980 Act a broad and purposive approach.  The policy behind this section was considered by this court in R v L [2008] 2 Cr App R 243 at paragraphs 27 to 29.  The traditional common law rule had been to consider the issue in terms of the wife giving evidence.  A wife was regarded as not merely not compellable to give evidence but not even competent, as it was considered that there was a sufficient identity of interest between husband and wife and because “to allow her to give evidence would give rise to discord and to perjury and would be, to ordinary people, repugnant”.  There was, however, an interest in the due conviction of the guilty.  It was the latter interest to which Parliament gave much greater weight when it modernised the law and curtailed the restrictions on spouses giving evidence by enacting s.35 of the Youth and Criminal Evidence Act 1999 and by the amendments it effected to s.80 of the 1984 Act.
17.	However in striking a balance between these competing interests, Parliament framed in narrow terms the circumstances in which one spouse was made a compellable witness against the other.  This is clear from subsection (2A)(b) where it is made clear that the spouse can give evidence for the prosecution, “only in respect of any specified offence”.  Thus, for example, if a spouse damaged a book belonging to the other spouse in the course of an argument and then assaulted the other spouse, the evidence would not be admissible if the spouse was charged with criminal damage but it would be admissible if charged with assault.  In determining whether an offence is a specified offence, it is therefore not surprising that the definition of a specified offence is not all embracing, given the policy of balancing the interests when modernising the law in 1999.
18.	We next turn to the language of the section.  The word “it” in subsection (3)(a) plainly refers back to the word “offence” in the opening words of subsection (3).  Although this demonstrates that the focus is upon the nature of the offence, we agree with the approach in both Lee and McAndrew-Bingham that the word “involved” can be given a broad construction within that constraint. Thus the offence itself does not have to have as one of its ingredients “an assault on or injury or threat of injury” to the spouse or person under the age of 16.  It is sufficient if the offence encompasses the real possibility of an assault or injury or threat of injury.  On the ordinary language of the provision, therefore, we can see nothing that points to a focus on anything other than the legal nature of the offence and not the specific factual circumstances in which the offence was committed.
19.	Third, there are practical considerations that support this construction.  It is essential in our view to be able to determine at the outset of the trial by reference to the nature of the offence and not the evidence which the Crown intends to call whether the spouse is a compellable witness.  If the evidence to be given about the factual circumstances of the offence could be taken into account, then it could not be determined at the outset of the trial whether the spouse was a compellable witness, as the evidence might not emerge in the way envisaged.  Furthermore, if it were possible to look at the factual circumstances of the offence, then the range of offences caught by s.80 would be infinite.  For example, if a person was charged with importing a prohibited article and the evidence of the spouse was that the other spouse had threatened to use that article to cause injury, then if that factual circumstance could be taken into account, the spouse would be a compellable witness in a trial of that offence.
20.	Looking therefore at the policy, language and practical considerations in a broad and purposive way, we consider that Parliament decided to strike the balance by reference to the nature of the offence and not by reference to the factual circumstances surrounding the offence.  The division in s.2 makes clear that the offence under s.2(a) is an offence directed at property where it cannot be said in such cases that the offence gives rise to the real possibility of an assault or injury or threat of injury.  The Recorder was therefore right to rule that the evidence of the wife was not compellable.
Postscript
21.	There can be no doubt that the provision does give rise to anomalies.  In the first place, as is clear from the decision of this court in R v Pearce [2002] 1 Cr App R 39, the restriction on the compellability of witnesses only applies to spouses and civil partners; it does not extend to a person who has been living with another person for a considerable period of time.  We leave to one side the possibility that the decision in Pearce may have to be reconsidered on a future occasion in the light of the strong interpretative obligation in s.3 of the Human Rights Act 1998.  Some at least of the reasoning of the Court (see paragraphs 11-12) was based on the decision of the House of Lords in Fitzpatrick v Sterling Housing Association Ltd. [2001] 1 AC 27, a case which was decided before the Human Rights Act came into full force in 2000 and was reconsidered by the House of Lords in Ghaidan v Godin-Mendoza [2004] 2 AC 557.  However, we did not hear argument on this and it would be inappropriate to say more.  Secondly, as was decided by this court in R v L, to which we have referred, the judge has the discretion to admit the wife’s statement under s.114(2) of the Criminal Justice Act 2003, even where the wife is not compellable (see paragraphs 34-36 of the decision).  Thirdly, there may be an anomaly in circumstances where one spouse is charged with a series of offences against another spouse as the spouse is only compellable in those that are specified offences, even though the offences may form part of the same course of abusive conduct against the other spouse.  It may be, although we need not decide the point, that the evidence of a spouse who is compelled to give evidence may not be admissible in respect of the charges which are not specified offences.
22.	These anomalies are matters for Parliament to consider.  The construction of the statute is clear.  Although we were invited by Mr Gelbart to construe the statute so as to remove these anomalies and, as he submitted, to bring it more into line with modern thinking, that is not something a court can, on the language of the statute, do.  It is for Parliament to consider whether the present restrictions contained in s.80 of the 1984 Act are apposite to contemporary society.