A recent case has concluded by saying that unmarried partners must testify against each other and cannot opt-out of appearing before the court. In the case of JC v MC, the Gardai charged the two brothers, the eponymous JC and MC, with attempting to pervert the course of justice, (they also charged the brother’s other sibling James A). Of interest, in this case, the books of evidence listed two witnesses, MA and KF. MA had been in a relationship with JC since 2010 and had two children with him. She had also given a statement implicating that JC had asked her to lie in her statement so that MC might have an alibi. Meanwhile, KF had been in a 7-year relationship with MC and had given birth to his infant son only seven months ago. Her statement detailed how she had picked up MC from a location at a relevant time and later MC had told her not to mention this to the Gardai.
At first instance, senior counsel for JC objected to having MA as a witness, citing that she had been in a relationship with him for more than three years. Thus, her evidence was inadmissible under s.21 of the Criminal Evidence Act 1992. Counsel for MC took a similar stance. As a result, both the accused brothers were acquitted. However, the DPP intervened. She lodged a without prejudice appeals to the Court of Appeal.
In its judgment, the Court of Appeal noted that several sources outlined differing approaches as to whether long-term partners could be called as witnesses. The book ‘Evidence at Criminal Trials’ stated that the 1992 Act indicated that a spouse could be called as a competent witness by either the prosecution or the defence, provided they were not one also accused of a joint crime.
However, they could not be compelled to testify. The same book theorised that this only related to those in official marriages and could not apply to anyone in a common law marriage or cohabiting with one another. A European Court of Human Rights case, Der Keijden v. The Netherlands said that instituting this rule would require courts to examine every cohabiting couple on a case by case basis. The Court reached a conclusion by identifying that nothing in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act 2010 definitively said that cohabitants could not testify against one another. Neither had the Oireachtas reflected any of the relevant statutes to accommodate this. Thus, the court decided that only married spouses could be deemed inadmissible as witnesses. Therefore the brothers JC and MC may face a retrial.
By Daniel Forde – Law Editor