The Court of Appeal has ruled that the non-compellability provisions in the Criminal Evidence Act 1992 apply only to a spouse established by marriage, not to an unmarried partner.
The ruling arose from a without prejudice appeal by the Director of Public Prosecutions after a Circuit Court trial judge excluded evidence from two long-term partners of accused men. The judge then directed the jury to find both men not guilty of attempting to pervert the course of justice.
The judgment said the charges followed a murder in County Tipperary on 17 October 2017. The respondents, identified as JC and MC, were brothers. The prosecution’s witness list included MA, JC’s partner and the mother of his children, and KF, who was in a long-term relationship with MC and had a young child with him.
According to the judgment, MA had given a statement alleging JC asked her to lie about a significant matter in a way that would give MC an alibi. KF’s statement said she picked up MC and another man at a relevant roadside location and that MC asked her not to tell Gardaí about the pickup.
During the trial, MA’s answers prompted the prosecution to seek to rely on section 16 of the Criminal Justice Act 2006. Defence counsel then objected to MA’s evidence, arguing she was not compellable under section 21 of the Criminal Evidence Act 1992. Counsel for MC took a similar position. The trial judge ruled that the evidence of both MA and KF was inadmissible. Two days later, on 25 February 2016, the judge directed acquittals.
The DPP initially sought orders including the quashing of the acquittals and retrials. The case proceeded as a without prejudice appeal after it emerged that both witnesses had married their partners, meaning a retrial was not a practical possibility, and an issue arose about what other evidence had been heard. The Court of Appeal assigned lawyers to argue in support of the acquittals.
The Court of Appeal said the 1992 Act’s reference to a “spouse” means a married spouse. It considered arguments for extending the protection to long-term partners or civil partners, but said those were matters for the Oireachtas. It answered in the negative the question of whether any relationship other than a marriage-based spousal relationship could fall within the Act’s non-compellability provisions.
The judgment determines that legal question. It does not record an order quashing the acquittals or directing retrials.