England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE MAURICE KAY)

		Royal Courts of Justice Strand London, WC2 Thursday, 7th November 2002

1. LORD JUSTICE WALLER: This appeal raises matters of some importance. It is also urgent that a decision is taken, so urgent indeed that, although Maurice Kay J only gave his decision on 4th November this year, the Court of Appeal has found time to deal with the appeal today. It is necessary that we should give our judgments today.
2. An overview I can take directly from the judgment of Maurice Kay J. Maurice Kay J said:

"1. S is charged with the murder. The trial is listed to commence on 19 November, having been put back a week because of these judicial review proceedings. J is presently a remand prisoner at [a prison].

2. The major, but not the only, evidence against J is contained in five witness statements made to police officers by B between 20 June and 1 July. They include evidence of admissions and about clothing. B and J have been living together for six or seven years. She has three children, of whom her former husband is the natural father. There is a fourth child, of whom J is the natural father. In her third witness statement, dated 23 June, B recounted the admissions attributed to J and explained their absence from her earlier statements in part by reference to 'fear for myself and my children.'

3. On 2 August B made a sixth statement in which she stated:

'In my previous statements I have told the police what I was told by J at the time we spoke. I am unable to say that what J told me is in fact the truth. I would like to add that J was very paranoid and he would keep repeating to me 'This was for the tapes'. By this I believe he meant that the police had the phone bugged as well as the house.

I have now given this matter a great deal of thought and I have come to the decision that I now wish to withdraw my statements. I believe that this is the right thing to do and it is my own decision.

I have not been put under any pressure or threatened in any way to come to this decision.

Whilst J has been in prison I have visited him and we have now decided to get married. This is not a recent decision. We had in fact decided to marry prior to these recent events occurring.'

This reference to a decision to marry would not have come as a total surprise to the Prosecution, because on 19 July a member of the Prison Chaplaincy Team had written to the Crown Prosecution Service with the information that J had indicated that he wished to apply to the Director for permission to marry B.

Notwithstanding the terms of the witness statement of 2 August, the prosecution propose to call B to give evidence at the trial. The statement does not suggest that the contents of the earlier statements were untrue. At the moment, she is a competent and compellable witness. On the other hand, if she and J were to marry before the trial, or the material part of it, she would cease to be a compellable witness, by reason of section 80 of the Police and Criminal Evidence Act 1984 (as amended by the Youth Justice and Criminal Evidence Act 1999). The non-compellability of a spouse has a much longer history than that. It was considered by the House of Lords in Hoskyn v Metropolitan Police Commissioner [1979] AC 474, where it was applied in relation to a marriage which had taken place only two days before the trial of the husband (albeit in relation to an offence of violence against the woman herself in circumstances which have now been made the subject of exceptional provision by section 80(2A) and 3 of the 1984 Act, as amended).

5. Having been alerted to the proposed marriage, the CPS has made representations to the Director of the Prison and to the Registrar General for Births, Deaths and Marriages in an attempt to persuade them to refuse to allow the marriage to take place until after the trial. The positions of the Director and of the Registrar General are the subject of statutory provisions in the Marriage Act 1949 (as amended). I shall refer to the statutory framework in a moment. In the event, the Director and the Registrar decided not to accede to the CPS's representations and it is those decisions which the CPS now seeks to challenge by way of judicial review. On 18 October McCombe J gave directions that the application for permission should be adjourned for an oral hearing and that any substantive hearing should take place on the same occasion.

6. In a nutshell, the central issue before me is: Does the Registrar General or the Director have any power to prevent the proposed marriage from taking place until after the criminal trial?"

Obviously the CPS were the party seeking judicial review. The Registrar General and the Director, separately represented, resisted. In addition, J and B as the parties wishing to get married joined as interested parties to support the argument of the Registrar General and the Director.

3. In essence, what the judge decided was that, although the statutory duty on the Registrar General to issue any necessary certificate was apparently absolute, by implication there was a public policy exception, and that that public policy exception applied in this case so as to require the Registrar General not to issue a certificate until after the conclusion of the trial. He granted relief in favour of the CPS against the Registrar General. As far as the Director was concerned, he took the view that it was sufficient if the public policy exception operated at the Registrar General level and thus refused relief against the Director.
4. The Registrar General and the interested parties appealed the decision granting the CPS relief and the CPS appealed the decision not to grant relief against the Director. Until one reaches the nub of the arguments as to whether public policy should require the Registrar General or the Director to act in a way which delays the marriage of these two persons, there is much common ground. It is thus possible again to borrow from the judge' judgment those aspects that set the scene for that argument.

The Statutory Framework

5. I read paragraphs 7 to 9 of the judgment of Maurice Kay J:

"Although the law of England and Wales used not to allow marriages to take place in prison (as opposed to the marriages of prisoners given temporary release for that purpose), the Opinions of the European Commission of Human Rights in Hamer v UK (1979) 24 DR 5 and Draper v UK (1980) 24 DR 72 were to the effect that that position was not compatible with Article 12 of the European Convention on Human Rights which provides:

'Men and women of marriageable age have the right to marry and found a family, according to the national laws governing the exercise of this right.'

This led to the amendment of the Marriage Act 1949 by the Marriage Act 1983. The relevant parts of the 1949 Act in its amended form are to be found in Part 111 which is headed 'Marriage under Superintendent Registrar's Certificate'. By section 26, certain types of marriages may be solemnised on the authority of two certificates of a superintendent registrar. They include (section 26(1)(dd)):

'the marriage... of a person who is house-bound or is a detained person at the place where he or she usually resides.'

Where, as in the present case, the two persons have not resided in the same registration district for the previous seven days, notice has to be given by each of them to the superintendent registrars of their respective registration districts (section 27). Certain information has to be provided in those notices and, where the relevant person is a detained person, section 27A(3) provides that:

'each notice of marriage required by section 27 ... shall be accompanied by a statement made in the prescribed form by the responsible authority not more than twentyone days before the date on which notice of the marriage is given under section 27 -

(a) identifying the establishment where the person is detained; and

(b) stating that the responsible authority has no objection to that establishment being specified in the notice of marriage as the place where the marriage is to be solemnised.'.

It is the Director of the prison who represents 'the responsible authority' for that purpose in the present case."

Decisions under challenge.

6. I now read paragraph 10:

"10. So far as the Director is concerned, he took advice from his Area Manager who said:

'Whilst it is true that the ... Director must give consent for a prisoner to marry, legal advice received suggests that this is more a traditional administrative procedure than one which could actually stand up to a legal challenge if delivered negatively. I would suggest it is for the CPS to seek some kind of injunction ...

The Director copied this to the CPS, adding:

'I was unsure as to the extent of my ability to deny him marriage, which has been reinforced by the Area Manager. ...'.

On 5 and 23 September, the Director made statements in the prescribed form under section 27A indicating that he had no objection. On 11 and 24 September AB and SJ gave notice to the respective superintendent registrars, enclosing the Director's statement of non-objection. The CPS caveats were referred to the Registrar General by the superintendent registrars and, in due course, the Registrar General decided that the caveats

'do not disclose grounds which would obstruct the issue of the superintendent registrars' certificate for the marriage.'"

7. The authorities that provide the foundation for the public policy argument are also referred to by Maurice Kay J in uncontroversial terms. I read paragraphs 12 to 14 of the judgment:

"It is common ground between the CPS and the Registrar General that (1) the duty imposed on a superintendent registrar by section 31(2) is in the form of an absolute duty ('... shall issue ...), but that (2) there are circumstances in which such an absolute duty may be subject to implied limitations based upon public policy. This common ground derives from two authorities, R v Secretary of State for the Home Department, ex parte Puttick [1981] QB 767 and R v Registrar General, ex parte Smith [1991] 2 QB 393. Puttick concerned a German woman who came to this country with a false identity and who later married an English man on the basis of perjured and forged material which she furnished to the Registrar General. Eventually, after her true identity had been revealed, she applied for British citizenship pursuant to section 6(2) of the British Nationality Act 1948. Section 6(2) provided that a woman in her position, viz one married to a British citizen:

'... shall be entitled ... to be registered'

as a British citizen. The Secretary of State accepted the validity of the marriage but refused registration on public policy grounds. Mrs Puttick applied for judicial review but was unsuccessful. Donaldson LJ, drawing on R v Chief National Insurance Commissioner, ex parte Connor [1981] QB 758, stated this principle (at p 773G):

'... statutory duties which are in terms absolute may nevertheless be subject to implied limitations based upon principles of public policy accepted by the courts at the time when the Act is passed.'

In applying the principle, he said (at p 775H):

'... Parliament can never have intended that a woman should be entitled to claim registration as a citizen ... on the basis of a marriage achieved only on the basis of serious crime ... the commission of the crime of perjury and forgery formed the foundation of her marriage ... and ... disentitled her to rely upon the right which she would otherwise have had to claim registration as a citizen. ...'.

Forbes J added (at p 778A) that, despite the mandatory terms of the statute, the Home Secretary was 'competent to refuse to register'.

Puttick was applied in Smith, upon which Mr Gordon QC, on behalf of the CPS, places heavy reliance. The applicant in that case was detained in Broadmoor, having been convicted of murder in 1977 and of manslaughter in 1980. He suffered from serious mental instability and psychosis The second killing was of a fellow prisoner whom he believed to be his adoptive mother. From Broadmoor he applied to the Registrar General for access to his birth records. The relevant statutory provision was section 51(1) of the Adoption Act 1976:

'... the Registrar shall on an application made ... by an adopted person ... who has attained the age of 18 ... supply to that person ... such information as is necessary to enable that person to obtain a certified copy of the record of his birth.'

The Registrar General procured an independent medical report, took counsel's opinion and refused to supply the requested information 'on public policy grounds'. The applicant's application for judicial review failed in the Divisional Court and the Court of Appeal. The judgments in the Court of Appeal have been the subject of rival submissions in the present case. It is therefore necessary to quote from them.

Sir Stephen Brown referred to submissions which had been made by counsel as amicus curiae and which were based on Puttick and Connor. The submissions were to the effect that those authorities showed that public policy required that no person should profit from his own serious crime; that if the court would interpret a statute so as to prevent grave crime being rewarded, a fortiori it should interpret statutes in a way which will prevent grave crime from being committed; that the court is the guardian of public policy; and that it would be an 'affront to public conscience' to allow the natural mother to be placed at serious risk. The President accepted these submissions, adding (at p401F):

'It is clear that the facts ... are wholly exceptional. I do not believe that Parliament intended to provide an absolute right to the relevant information 'come what may'.

Staughton LJ considered (at p403E-H) that.

'a principle that statutory duties, although apparently absolute, will not be enforced if performance of them would enable a person to commit serious crime or to cause serious harm is fraught with difficulty ... Nevertheless, I am persuaded that some such principle exists.'.

After further discussion, he stated (at p404C):

'For present purposes, it is sufficient to hold that a statutory duty is not to be enforced if there is a significant risk that to do so would facilitate crime resulting in danger to life. Parliament is presumed not to have intended that, unless it has said so in plain terms. That is as far as I would go in this case. Even so, I fear that other cases may require elucidation.'

The third member of the court, McCowan LJ, put it this way (at p405C):

'... the correct formulation of the public policy in this context is that the adopted person will not be permitted to exercise his right ... if there is current and justified apprehension of a significant risk that he might in the future use the information obtained to commit a serious crime.'

He added (at p406A):

'What Parliament must be taken to have intended is that [the Registrar General] should obey public policy as found by the court to exist at the time the matter comes before it. It is not for the Registrar General to weigh up the public interest as against the interests and wishes of the applicant. It is for her only to discover the facts and for the court, as guardian of public policy, to decide whether the Registrar General is justified in withholding the information from the applicant.'"

8. Maurice Kay J was persuaded that the Registrar was bound to recognise two aspects of public policy. First -- this appears in paragraph 16 of his judgment -- he concluded that a court, faced with a review of the decision made pursuant to an ostensibly absolute statutory duty may, indeed, subject that decision to a public policy limitation based on an apprehended significant risk that it will facilitate the commission of a serious crime, such as the perverting or attempted perverting of the course of justice. The second he put in these terms at the end of paragraph 17 of the judgment:

"In my judgment, the court ought to recognise public policy in relation to an apprehended significant risk that a positive decision will facilitate the avoidance of liability for a serious crime."

9. He dealt with an argument which relied on article 12 of the Convention of Human Rights, the right to marry, but he concluded that simply delaying the marriage until the conclusion of the criminal trial would not infringe that right.
10. He went on to consider whether, on the facts of this case, the public policy considerations applied. His conclusions on the facts appear in paragraph 22 to 24:

The factual matrix.

If, as I have held, the public policy issues fall for consideration on the apprehension of a significant risk of the particular eventualities, it is necessary to consider the factual matrix of this case. I accept that the relationship between J and B is a long one, that it has produced a child and that J has probably treated the three older children as if they were his own. This is not a proposed marriage of convenience between virtual strangers. On the other hand, a marriage has not taken place in spite of years of opportunity. According to J, marriage has been discussed on occasions. The relationship has had its ups and downs. In recent years the relationship deteriorated and, whilst still the subject of ups and downs, 'the downs have been worse than before'. In March 2002 he says that he wanted to marry but she was hesitant and the subject was dropped. In B's first witness statement she described J as 'volatile' and stated that 'J and I have had a lot of troubles over the last six or seven weeks. We argue a lot and J has a bad drinking problem'. Neither in that nor in her next four statements did she make any reference to an intention to marry. Following his arrest and remand in custody, there was no contact between them for three weeks. Then she visited him in prison, they had (according to him) a 'very long discussion', and on the very next day he made it known to the prison authorities that he wished to apply to the Director for permission to marry in prison at the earliest opportunity. Quite what else was or may have been said is difficult to gauge. However, it is a striking feature of their respective accounts that, whereas she states in her final witness statement that they had 'in fact decided to marry prior to these events occurring', not only was mention of that absent from five earlier statements, it is also at variance with what he says in his witness statement prepared for the purpose of these proceedings. She has not made a witness statement in the proceedings and, in the circumstances which I have described, I am not prepared to grant evidential status to a letter addressed to me, part of which was faxed to this court on the morning of the hearing. However, I have had regard to the letters which she has written to J since her first visit to him in prison.

There is no evidence before me which could prove to the criminal standard that J had coerced B to make her retraction statement and to seek marriage, or that they have conspired to pervert the course of justice, or that she has independently set in train a sequence of events with the intention of perverting the course of justice. However, I attach significance to the fact that in her third witness statement B explained her failure to disclose its highly important contents in her previous statements as being 'for reasons of fear for myself and my four children'.

What does all this add up to? To my mind it engenders and justifies apprehension of a significant risk that the proposed marriage is based on a desire that J should avoid conviction and an intention that, to that end, the jury should be denied the probative evidence of B. I would expect that the same apprehension of a significant risk would arise in the mind of any superintendent registrar or Registrar General who was not persuaded that such matters were outwith his purview."

11. Finally, so far as the Registrar General is concerned, the judge's conclusions are set out in paragraph 26. His conclusion was that the Registrar General ought to have considered that the exercise of his duties might raise issues of public policy. His conclusion was that it was for the court to articulate public policy. He concluded that the certificate could not stand.
12. As regards the Director, his conclusion was that Parliament had not intended the Director to have an interventionist role in the sanctioning of marriages; that role was for the Registrar General and, furthermore, that if the court is to import public policy considerations, he held it sensible to do so at only one level. The appropriate level would be that of the Registrar General when all administrative hurdles had been overcome.
13. It is convenient to deal with the appeal against the judge's decision relating to the Registrar General first. This raises the fundamental question whether the judge was right to hold that there were public policy considerations which the Registrar was bound to take into account. One must take care, in considering public policy implications, to be sure precisely what the public policy is. There is no difficulty in understanding that Parliament may, in expressing itself as it did, ie in making a duty absolute, have intended that that duty should be exercised subject in certain circumstances to public policy considerations. There is no difficulty in understanding that the exercise of an absolute duty would be likely to be subject to the limitation that it should not be exercised so as to allow a person to benefit from his or own crime. Puttick is authority for that. It is more difficult however to articulate the precise ambit of the limitation where the public policy is said to be that an absolute duty is not to be used to facilitate the commission of a crime, which is exemplified by the case of Smith. Smith, I would suggest, was a case with very special facts, in relation to which the obviousness of the risk, that the use of the information to be supplied might lead to serious harm being inflicted on, in that case, Smith's natural mother, was such that it was possible to say that Parliament cannot have intended the absolute duty to be employed for that purpose.
14. In the instant case the judge has suggested two limitations: first, that the absolute duty should be subject to the duty not being exercisable if it would facilitate the commission of a serious crime. The crime suggested is perverting the course of justice. Second, he suggested that the absolute duty should not be performed in relation to an apprehended risk that a positive decision will facilitate the avoidance of liability for a serious crime.
15. Taking the first limitation, the first point to make is that, entering into a lawful marriage which would have the consequences of a witness not being compellable, could not be said to be perverting or attempting to pervert the course of justice. Section 80 is an important consideration at this stage of the argument. That section provides for the wife or husband not to be a compellable witness. I will come back again in a moment to consider that section and make some comments about it then. But I cannot follow how entering into a marriage, which carries with it the necessary consequence that a wife will not be compellable, could be said to be perverting the course of justice in the sense of that term in the criminal law.
16. Even if thus the first limitation were accepted, it would not in my view apply in the circumstances of this case. The question whether the principle might ever apply in the context of the Registrar General exercising an absolute duty in relation to marriage can be left to another case. I have to say that I am doubtful whether it ever would. Smith was decided on very extreme facts, where the provision of information amounted to the signing of the adoptive mother's death warrant. It is difficult to see that the exercise of the duty of the Registrar General would ever be likely to facilitate the very extreme type of consequences there envisaged. But I do not feel it necessary to decide that point.
17. As to the second way in which the judge put the limitation, that a positive decision may facilitate the avoidance of liability for a serious crime, I cannot see that any limitation can conceivably be that wide. One must remember that J has yet to be tried. He is entitled to do many things in order to defend himself. He is entitled to call witnesses, to cross-examine witnesses, to gather evidence, and take all legitimate points on the admissibility of evidence in order to defend himself. It could not be right to describe such conduct as conduct seeking to avoid liability for a serious crime. By putting the matter in that broad way it is possible to bring conduct within it, although public policy would not, I think, make it right to do so.
18. I suspect that the following approach at least helps in achieving the right answer. Pose the question, was it intended that the Registrar General should not carry out his absolute duty if the effect of the two persons getting married would be that one or other could take advantage of section 80? The answer to that question seems to me to point to the correct answer in this case. Section 80 was passed in the context of the House of Lords decision in Hoskyn and, indeed, in the context of the trenchant judgment of Lord Edmund Davies who dissented in that case. The facts of the case included the fact that the defendant had entered into the marriage only two days before the trial and after the offence had been committed. As it seems to me, it must plainly have been in Parliament's mind that some members of the public might not be happy with the thought that a wife or husband should not be a compellable witness in cases of serious violence, including murder. Despite that, Parliament chose to provide for the non-compellability of the wife in such cases. It may be that that section needs reconsideration, but it is there.
19. Furthermore, it seems to me that it is such a very obvious argument that it should not be right that somebody should be entitled to take advantage of the non-compellability provision by marrying two days before the trial and after the offence was committed, that Parliament must be taken to have had that factor in mind as well. Again, they chose to pass the section that they did. It seems to me that, simply to take advantage of section 80 once the husband and wife are married, cannot be said to be unlawful or contrary to public policy, although if the husband is in fact guilty but acquitted, obviously in one sense the husband has avoided liability for serious crime. It seems to me difficult to see how marrying when one objective may be to achieve the protection of section 80 can be said to be unlawful or contrary to public policy.
20. The right to marry has always been a right recognised by the laws of this country long before the Human Rights Act came into force. The right of course is also enshrined in article 12 of the Convention. It has more recently been held that prisoners are not to be denied that right in the cases cited by the judge. The right, furthermore, must not be denied to B who has indeed born a child to J. It seems to me that the right of marriage carries with it the incidences of marriage, including that the wife may not be compelled to give evidence against her husband or vice versa.
21. Mr Bartley Jones, both here and below, relied on what would be anomalies if the position in this case were as found by the judge. In this case J is being held on remand, but if he were on bail he could have married and taken advantage of the section. Indeed, if he had escaped from prison he could have married and taken advantage of the section. He could have married before committing the offence with the intention of taking advantage of the section, or married shortly after the commission of the offence for the purpose of taking advantage of this section. Mr Bartley Jones suggests indeed that if J, as a remand prisoner, could have his marriage delayed until after the trial, and if that should happen, then there would be discrimination against him. He relies on article 14 of the Convention.
22. Mr Gordon's answer to that submission by Mr Bartley Jones is to broaden the basis on which he puts the submissions in a way, as I see it, that exposes the weakness of his position. On his submissions, it is not just the Registrar General, with this absolute duty, who would have a limitation on his power under section 31, but any person who could authorise or consent to a marriage, who would now have to halt the process if information was supplied that indicated that one effect would be that the wife would become non-compellable. This is a serious case, and in no way do I seek to trivialise any aspect of it. But the notion that a vicar, on being informed of the possibility that one purpose of the marriage was to enable advantage to be taken of section 80, would be under a duty to make inquiries and postpone the ceremony or the reading of the banns if it was so, seems to me to be very farfetched. Thus, in my view, in relation to the Registrar General's otherwise absolute duty, there was no public policy implication which entitled the judge to grant the relief which he did. I would allow the Registrar General's appeal.
23. That leaves the CPS's appeal against the decision relating to the Director General. Mr Gordon submitted that on this aspect he had a totally separate point. His point was that in this instance, instead of the Director being under any absolute duty, the Director was exercising his discretion. So the argument was that there was no reason why, in exercising the discretion, the Director should not be entitled to take into account public policy considerations, including the undesirability of B not being a compellable witness. At first blush, there seems some force in that submission. However, Mr Furniss answers this submission by pointing to the language of section 27A(3)(b). There are no rules or regulations relating to the exercise of the discretion by the Director. All that defines the ambit of the Director's decision is section 27A(3)(b). That section provides for the Director to supply the appropriate certificate under the Marriage Act. Under the section where the relevant person is a detained person, each notice of marriage required by section 27 of the statute should be accompanied by a statement made in the prescribed form by the responsible authority not more than 21 days before the date on which the notice of marriage is given under section 27, (a) identifying the establishment where the person is detained, and (b) stating that the responsible authority has no objection to that establishment being specified in the notice of marriage as the place where that marriage is to be solemnised. Mr Furniss submits that it would have been very easy for Parliament to have used words that would have made it clear that the Director could object to the marriage or have grounds for objecting to the marriage generally. But the wording relates to having no objection to that establishment being specified. So, he says, the limit of the matters which the Director can take into account in exercising the discretion relate to the convenience of the establishment, the availability of the establishment, and not to the public policy matters which Mr Gordon would seek to have him take into account.
24. In my view, Mr Furniss's submissions are correct. I am persuaded by them. In those circumstances, the appeal against the judge's decision relating to the Director in my view should also be dismissed.
25. SIR PHILIP OTTON: I agree that the appeal of the Registrar General should be allowed and that the appeal of the CPS should be dismissed.
26. As we are reversing the learned judge, it is appropriate to state briefly some observations of my own. It is reasonable to assume that Parliament, when it enacted the Marriage Act of 1949, was aware of the non-compellability immunity granted to a spouse by the Criminal Evidence Act 1898, which is the statutory genesis of this immunity, and when it was subsequently re-enacted by section 80 of the Police and Criminal Evidence Act and subsequently amended by the 1999 Act. If Parliament had wanted to prevent or delay persons from marrying where the effect of the marriage would be to create an immunity which would otherwise not exist, this could have been achieved by a further extension of section 31(2) to follow subpara (b).
27. I do not accept the argument that such a marriage or an agreement to enter such a marriage would per se constitute a criminal act or an act intended to pervert the course of justice. It might be possible to challenge the bona fides of the marriage, either at the trial or in separate proceedings outside the criminal process. However, a trial date could be well into the future. It may be that the parties, while recognising the effect that the marriage might create, might nevertheless have understandable and legitimate reasons for contracting the marriage before the trial. For example, if the woman was pregnant and had a strong personal desire and reasons for not wanting her child to be born out of wedlock, or where one of the parties might be suffering from terminal cancer and they wish to be married before the death. In my judgment it would be inappropriate to state any principle based on the instant case or to explore or prejudge such situations.
28. THE PRESIDENT: I agree with both judgments. The appeal of the Registrar General is therefore allowed. The appeal of the Crown Prosecution Service against the Director of Prisons is dismissed.