HUSBANDS and wives will no longer be able to refuse to give evidence against each other in court, under a planned change to the law announced by Kenny MacAskill.
The justice secretary said he intends to repeal the legislation on so-called "spousal compellability" in a move that is intended to address fears that couples are exploiting the legal loophole to avoid jail sentences.
A husband, wife or civil part
ner can currently refuse to give evidence against their other half if that person is to stand trial, except when one half of a couple has been the victim of an offence committed by their partner.
The previous Scottish Executive published a consultation paper on the issue in 2006. Following that, the SNP administration has decided to repeal Section 264 of the Criminal Procedure (Scotland) Act 1995 and Section 130 of the Civil Partnership Act 2004.
The move will mean couples, whether married or in a civil partnership, will no longer have legal protection to avoid giving evidence.
The action is intended to address concerns that the law can be exploited in cases where violence against a couple's children has taken place and the spouse is a witness.
Ministers are also concerned that the law does not currently prevent an accused from marrying the key witness for the prosecution in order to undermine the Crown's case.
A murder trial at the High Court in Paisley in 2005 collapsed when the accused, William Ferrie, married the dead man's former girlfriend prior to the trial, thus forcing the Crown to drop the case.
Mr MacAskill said: "For too long, spouses have been able to escape justice thanks to laws that mean their other half does not have to give evidence against them.
"This is not acceptable and has resulted in the past in people marrying their partners prior to trial, for example on a charge of abusing their children, just to avoid having to give evidence against them.
"Changing the law will boost protection for children and prevent couples covering up for each other… It is entirely unreasonable that where a child is assaulted or a crime committed justice is thwarted due to a marriage. That loophole needs to be closed for justice to be served.
"Marriage is an important institution and should not be a means of avoiding answering awkward questions in court."
Robert Black, professor emeritus of Scots law at Edinburgh University, said the loophole was "an anachronism".
"The policy is based on the view that marriage is so sacrosanct that the law should not ask one spouse to say anything that may incriminate the other. Today, that view either doesn't exist, or it is held by very few people."
However, a spokesman for the Law Society of Scotland said that Mr MacAskill's desire to amend the law in this area "may rest upon an over-exaggerated conception of any undesirable problems resulting from the current law".
He added: "Dworkin's maxim is appropriate in this regard – 'Hard cases make bad law'."
The full article contains 507 words and appears in The Scotsman newspaper.
