Report No. 69

IV. Limitations-Third Person Not Privileged

64.15. The above points bring out the scope of the section. Attention must now be drawn to an important limitation provided in the section. The section does not present the communication from being proved by the evidence of a third person. Thus, for example, a letter written by the accused to his wife and found in the search of her house has been held to be admissible, notwithstanding the terms of this section. The result is that a document in the hands of a third party, even though it contains communications between spouses, is admissible in evidence given by the third party1.

1. Queen Empress v. Dopoghue, 1899 ILR 22 Mad 1 (3).

64.15A. Position in England before 1968.-

In England, it had been held before 1968,1 that a third person can give evidence of a conversation which he has heard between a husband and wife2. We shall later offer our comments on this limitation.3

1. Halsbury's, 3rd Edn., p. 422, para. 758, footnote (a), and the cases cited there.

2. As to the English position in this respect after 1968, see below.

3. See infra.

V. Privilege Distinct from Testimonial Immunity

64.16. The privilege in regard to marital communications is distinct from any immunity that may be recognised by a particular legal system regarding testimonial compulsion against a spouse. The two may overlap, but one could conceive of cases where, while there is no testimonial immunity„ yet there is a reason for claiming the privilege in relation to the marital communications. The privilege is confined to the mutual communications of the spouses. The immunity applies to their very act of giving testimony against the spouse. Wigmore on Evidence1 gives the history of the privilege, in a passage which, while expounding the rationale of the privilege, also discusses the distinction between privilege and incompetence.

"The privilege for communications between husband and wife is apparently, in time of origin, the second of such privileges to be enforced at common law, and yet the last to be definitely recognised and distinguished. In the second half of the 1600s an instance of its application is found; and yet the explicit statement of the privilege, as a distinct one from any other rule, did not come in England until the statutory reforms of the Common law procedure Act, just as the second half of the 1800s was beginning. The explanation of the paradox is that until that time the present privilege for communications between husband and wife had not been plainly separated from the other privileges of husband and wife not to testify to any facts against the other.

This latter privilege was fully established by the end of the 1600s. But among the various reasons advanced for its support was the policy of protecting domestic confidence by prohibiting their mutual disclosures. In other words, the true policy of the present privilege was perceived, and yet it was not enforced in the shape of any rule distinct from the old-established privilege of each one to testify against the other as a party or interested in the suit. That the two are distinct is plain; for the privilege not to testify against the other is order in the respect that it 'excludes testimony to any adverse facts even though they have been learnt wholly apart from marital confidence, and is narrower in the respect that it applies only to testimony in its tenor and adverse to a party to the cause or to one in an equivalent position.".

1. Wigmore, (1901-1905), Vol. 4, pp. 3257-3258 cited in Shelton v. Tyler, (1939) 1 All ER 827 (838).

VI. English Law-The Statutory Provisions

64.17. The position under the present statutory provisions in England may now be stated. First, as to criminal cases, section 1(di of the Criminal Evidence Act, 1898, provides as follows:-1

"No husband shall be compelled to disclose any communication made to him by his wife during the marriage, and no wife shall be compelled to disclose any communication made to her by her husband during the marriage."

1 For history of the section, see Rumoing v. D.P.P., (1968) 3 All ER 256.

64.18. There was an identical provision in section 3 of the Evidence (Amendment) Act, 1863, applicable to all proceedings. But, as to civil proceedings, this was repealed by the Civil Evidence Act, 1968.1

1. Sections 16(3) and 18(5), Civil Evidence Act, 1968, (English).

64.19. English Act of 1968.-

Section 16(3) of the Act of 1968 is as follows:

"16(3). Section 3 of the Evidence (Amendment) Act, 1853 (which provides that a husband or wife shall not be compellable to disclose) any communication made to him or her by his or her spouse during the marriage) shall cease to have effect except in relation to criminal proceedings."

64.20. It should be noted, however, that the discretion of the Court is saved under section 18(5)-

"18(5). Nothing in this Act shall prejudice-

(a) any power of a court, in any legal proceedings, to exclude evidence (whether by preventing questions from being put or otherwise) at its discretion; or

(b) the operation of any agreement (whenever made) between the parties to any legal proceedings as to the evidence which is to be admissible (whether generally or for any particular purpose) in those proceedings."

64.21. Position in England.-

The present position in England1 is that in a criminal case "no husband shall be compellable to disclose any communication made to him by his wife during the marriage, and no wife shall be compellable to disclose any communication made to her by her husband during the marriage."2

In civil cases there is no privilege but there is a discretion vested in the Court.

1. See "English Law", infra.

2. Section 1(d), Criminal Evidence Act, 1898, (supra).

VII. English Common Law

64.22. We have so far dealt with the statutory provisions in England. The question whether, apart from statutes, there was a privilege at common law may now be discussed briefly.

64.23. It was believed to be an old rule of the common law1 that any communications between husband and wife during coverture were inviolable.2 The rule was not even limited to communications of a strictly confidential nature, and it applied even after the death of one party to the marriage3 or after the dissolution of the marriage.4

1. (1938) 86 LJ 359.

2. O'Conner v. Marjori Banks, (1842) 6 Jur 609.

3. Doker v. Rasler, 1824 Ry&M 198: 171 ER 992.

4. Monroe v. Twisleton, (1802) 170 ER 250.

64.24. Communications during marriage.-

A controversy, however, arose in 1939 on the question. In Shanton v. Tyler, (1939) 1 All ER 827 (CA), Simonds, J., in the trial court, had held that a widow need not disclose communications between her and her late husband. His decision, which followed a few earlier cases, was based on the view that at common law such communications were privileged, and that section 2 of the Evidence Amendment Act, 1853, did not, in any way modify that rule.

64.25. In the Court of Appeal, however, Sir Wilfrid Greene, M.R., in his judgment, distinguishing between "competence" and "privilege" in the rules of evidence, held that there was no common law rule of privilege protecting marital communications as such, as distinct from the general testimonial incompetence of the spouses. Because the wife was immune from testifying against her spouse, the need for privilege was not felt. But Greene, M.R., emphasised that there was no privilege is addition, to the immunity of a spouse.

64.26. It would appear that before 1853, because of testimonial incompetence, the question could not arise in England in the form of a privilege. The decisions before 1853 were concerned with the incompetence of spouses to give evidence for or against the other. This was the view of Greene, M.R.

64.27. In 1853, the privilege did find its way to the state book. The rule was recommended by the Second Report of the Common Law Commissioners of 1853, which recommended that "all communications between them (husbands and wives) should be held to be privileged," and it was enacted as the Evidence Act, 1853, section 3. That section provided that "No husband shall be compellable to disclose any communication made to him by his wife during the marriage, and no wife shall be compellable to disclose any communication made to her by her husband during the marriage."

64.28. The decision of the Court1 of Appeal did not escape criticism. In the case cited above, the Court of Appeal construed those words to mean that the privilege given by the section is not to continue after the marriage has come to an end. On this judgment of the Court of Appeal, the Law Journal wrote:2 "Although this may, in the present case, be a proper result, we do not feel that as a general principle it is altogether a satisfactory one, and we doubt whether it can have been the intention of the Legislature."

1. Shanton v. Tyler, supra.

2. 87 LI 173.

64.29. Even after this decision, the matter proved to be controversial. The late Sir William Holdsworth wrote in the Law Quarterly Review1, a note strongly criticising the judgment of the Court of Appeal on historical grounds.

1. Holdsworth in 56 LQR 137.

64.30. Communication between husband and wife intercepted by stranger-Admissibility.-

The controversy again made itself manifest in 1962. In Rumping v. Director of Public Prosecutions, (1962) 3 WLR 763 the House of Lords gave detailed consideration to the rules relating to the admissibility of communications between husband and wife. The appellant, Rumping, had been convicted of the murder of a young woman. Part of the evidence against him admitted at his trial was a letter written by him to his wife shortly after the killing, which virtually amounted to a confession by him to her of the murder. The letter was never, in fact, received by his wife, as he had entrusted the delivery of it to a friend who after Rumping's arrest handed the letter unopened to the police. Rumping appealed against his conviction on the ground that the letter should not have been admitted in evidence against him.

64.31. For the appellant, Rumping, it was argued that there was a broad common law rule, quite apart from statute, which rendered inadmissible all communications between husband and wife intended to be confidential. The Court of Criminal Appeal rejected the appeal on the narrow ground that even if there existed the broad common law rule contended for, there was no justification for regarding the rule as applicable to an intended communication which never reached the spouse for whom it was intended and which could be proved by a witness other than that spouse. Rumping appealed to the House of Lords.1

1. See note in (1963) 30 Australian LJ 459.

64.32. The House of Lords rejected the appeal (Viscount Radcliffe dissenting), on the broad ground that except for certain statutory provisions there was no rule of law nor any requirement of public policy which prevented the admission in evidence of communications between husband and wife.

64.33. In this dissenting opinion, Viscount Radcliffe made on examination of certain early authorities and deduced that is was a fundamental policy of the common law-although nowhere made explicit-to treat all communications between spouses during coverture as sacrosanct, in the sense that they could not be the subject of disclosure in court. In his view, the policy was not "confined merely to securing that the spouses themselves do not become the agents of disclosure by appearing as witnesses", but "goes further and for reasons of public policy protects the marital confidence as such, in whatever form it is sought to expose them as material for evidence".

64.34. We shall have occasion to refer again to Viscount Radcliffe's speech. For the present, it is enough to state that while scholars and others in England are not agreed on the question of the separate existence of the privilege at common law, the matter is now regulated beyond doubt by a statutory provision.1

1. See, "Statutory provision in England", supra.

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