IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE MAURICE KAY)
Thursday, 7th November 2002
B e f o r e :
(Dame Elizabeth Butler-Sloss)
LORD JUSTICE WALLER
SIR PHILIP OTTON
Smith Bernal Wordwave Limited 190 Fleet Street, London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR. R. FURNISS (instructed by Messrs Berrymans, Lace Mawer) appeared on behalf of the Second Defendant.
MR BARTLEY JONES AND MR L BROWNE (instructed by Julian S Linskill) appeared on behalf of the First Interested Party.
Crown Copyright ©
"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  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.
The Statutory Framework
"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.
"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.'"
"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  QB 767 and R v Registrar General, ex parte Smith  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  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.'"
"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."
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."