England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		22nd January 2016

1. LORD JUSTICE McCOMBE: On 20th November 2014, in the Crown Court at Portsmouth, after a trial before Her Honour Judge Munro QC and a jury, the applicant was convicted of two offences: conspiracy to handle stolen goods and conspiracy to transfer and convert criminal property. On 2nd January 2015 the applicant was sentenced to four years' imprisonment on each count to be served concurrently; that is, a total sentence of four years' imprisonment.
2. His application for an extension of time of two months and 18 days in which to apply for leave to appeal against conviction has been referred to the full court by the single judge. That has apparently been explained in a letter from the applicant's solicitors, which we have not seen, in which it is asserted that the application was originally sent by post to the Crown Court within the time limit but does not seem to have arrived at its destination. We see no reason to doubt that statement from the solicitors and we grant an extension of time accordingly.
3. The facts underlying the charges (which we have outlined) and the convictions do not now matter greatly. The prosecution was brought on the basis that the applicant and one of his co-accused, a lady called Joanna Lazarska, with whom the applicant lived, had in some manner acquired a large number of cosmetic products of a well-known manufacture and had traded in them for commercial gain. Products of this type were discovered on 16th April 2013 on the search of a home that they shared in Southsea with their children. The goods were worth some £430,000 and proved to be stolen goods.
4. There were other co-accused with whom the applicant and Lazarska had had dealings in the course of their trade who were indicted for offences of conspiracy to transfer and convert criminal property or similar substantive offences in relation to such goods.
5. As we have said, the applicant and Lazarska, it was alleged, lived together as domestic partners and seem to have had children together. They were neither married, nor could they be civil partners. However, it was asserted, and was accepted by the Crown, that they lived together in a relationship akin to marriage. Thus, it is argued that the applicant was entitled to be acquitted of the offences of which he was convicted by virtue of being in effect a "spouse" entitled to the benefit of section 2(2) of the Criminal Law Act 1977, or by virtue of that section when read in the light of the Human Rights Act 1998 and Article 8 and 14 of the European Convention on Human Rights and Fundamental Freedoms.
6. Section 2(2) of the 1977 Act reads as follows:

"(2) A person shall not by virtue of section 1 above be guilty of conspiracy to commit any offence or offences if the only other person or persons with whom he agrees are (both initially and at all times during the currency of the agreement) persons of any one or more of the following descriptions, that is to say -

(a) his spouse;

(b) a person under the age of criminal responsibility; and

(c) an intended victim of that offence or of each of those offences.

7. In other words, it said that if the applicant and the co-accused had either been married or civil partners, neither could have been guilty of conspiring with the other. Thus, if the applicant is not entitled to rely upon the section as a defence to the charges of conspiracy levelled against him and his partner, he would suffer an impermissible infringement of his rights under Article 8 of the European Convention, which reads as follows:

"1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

8. Further, it is argued that there would be an infringement of the applicant's rights under Article 14 when read together in the context of Article 8. This is said to arise because spouses and civil partners have the benefit of the defence, but, as partners of the opposite sex, the applicant and his co-accused were not entitled to enter into such a partnership.
9. These are, of course, novel points. When we first considered the papers we were inclined to think that the applicant was in some difficulty in advancing that point before this court in the absence of evidence having been adduced in detail as to the nature of the relationship when the matter was before the Crown Court. However, Mr Parish, for the Crown, very fairly concedes for the purpose of this application that the relevant relationship was one akin to marriage for present purposes. We take that matter therefore no further.
10. Setting out the procedural background further, however, there was opposition to a substitution of a new indictment for different procedural grounds, with which we are not now concerned, when the matter was in the Crown Court. In the course of this exercise, as we understand it, Mr Norie-Miller says, and Mr Parish for the Crown agrees, the issue with regard to section 2(2) "was raised, albeit briefly". Mr Norie-Miller says that the judge made a "concise ruling" on the point by saying "they are not married, nor in a civil partnership". We have seen no transcript of this exchange. Mr Parish says that while the section was mentioned, the judge was not invited to rule on the matter and did not do so. The case proceeded and it is clear that no attempt was made at any later stage of the trial to revive the section 2(2) issue at any later stage.
11. Mr Parish takes the preliminary objection that it is an abuse of process for the applicant now to try to raise a point which was effectively dead and buried before the trial in substance proceeded in the Crown Court.
12. We do see that it is highly objectionable that a matter of this sort should be raised at such a late stage without the matter having been fully canvassed and argued in the Crown Court. However, we do not say any more as to Mr Parish's preliminary point as to whether or not we should rule out, at the threshold, the point that Mr Norie-Miller wishes to take. We can see that, as a dry point of law, if the section clearly afforded a defence to the applicant, justice would require this court to permit the point to be raised, and we will therefore proceed to consider it on its merits. We turn to that point, although, as this is an application only for leave and not a full appeal, we shall not do so extensively.
13. In our judgment, it is clear that the applicant is not entitled to the benefit of section 2(2) as presently drawn simply because of its express terms: it employs the ordinary English words and refers to "spouse" or "civil partner". Those are well understood words, referring to persons who are either married or have entered into a formal civil partnership. Reference, with respect to Mr Norie-Miller, to the British Columbian legislation which he quoted in his helpful written materials do not advance that point any further.
14. Moreover, the question of interpretation which he seeks to advance as such, in our judgment, cannot be truly advanced in the way that it was in cases such as Fitzpatrick v Sterling Housing Association [2001] 1 AC 27 and Ghaidan v Godin-Mendoza [2004] UKHL 30, in view of the fact that Parliament has expressly added the status of civil partner to the immunity conferred by section 2 of the 1977 Act.
15. However, in our judgment, for present purposes of the criminal law, we would on this application be obliged to follow the decision of this court in the case of Pearce [2002] 1 Cr App R 39 at page 551 (we do not refer to the less helpful case number reference as "case 39", which is never of any help). In that case it was held that the unmarried partner of an accused person was a compellable witness in a prosecution against him, whereas a spouse married to the accused, with certain exceptions, was not. The court held that this position was not altered by reference to Article 8 of the Convention in that context. Kennedy LJ, in giving the judgment of the court, at pages 555 to 556 said this:

"Mr Wood's primary submission is that we should read down the words of section 80(1) so as to make them compliant with his interpretation of the Convention, but the words are clear and are not capable of being expanded so as to embrace a relationship to which they plainly do not apply. In any event we do not accept the proposition which underlies Mr Wood's submissions in relation to this aspect of the case, namely that proper respect for family life as envisaged by Article 8 requires that a co-habitee of a defendant, whether or not married to him, should not be required to give evidence or to answer questions about a statement which he has already made. This is plainly, as Ms Joseph submits, an area where the interests of the family must be weighed against those of the community at large, and it is precisely the sort of area in which the European Court defers to the judgment of states in relation to their domestic courts. There may be much to be said for the view that with very limited exceptions all witnesses who are competent should also be compellable, and certainly the material before us does not enable us to conclude that because a concession has been made to husbands and wives proper respect for family life requires that a similar concession be made to those in the position of a husband or a wife. As Ms Joseph points out, if the concession were to be widened it is not easy to see where logically the widening should end. That objection may not be insuperable but the possibility of serious limitations being placed upon society's power to enforce the criminal law is obvious. Ms Joseph accepts that at one level the requirement that Loveina Pearce give evidence can be regarded as an interference with her rights under Article 8(1) but, she further submits, the situation is clearly within the ambit of Article 8(2). The interference is in accordance with the law and it is properly regarded as necessary in a democratic society for the prevention of crime."

16. That case finds its parallel in the jurisprudence of the European Court in the case helpfully unearthed by Mr Parish in his skeleton argument, Van der Heijden v The Netherlands [2013] 57 EHRR 13. The facts are not at all dissimilar to the case of Pearce and the European Court held that the relevant Dutch "bright line rule", if we may so call it, was unobjectionable in terms of Article 8 of the Convention.
17. While the case of Pearce was dealing with a separate statutory provision, it seems to us that the reasoning of Kennedy LJ in that case, as supported by the case of Van der Heijden, is equally applicable to the considerations that we have before us.
18. Parliament has extended the benefit of section 2 beyond spouses to civil partners, and insofar as the right to respect to private life is engaged in this context in the present case, it seems to us that the boundary drawn here would satisfy the requirements of Article 8(2) of the Convention in an area where principles of human rights law would, as we see it, afford to the state a significant margin of appreciation. It is recognised that the criminal law must be objective and certain and that "bright line rules" are sometimes required for this purpose, whereas they may not be so in some of the other areas in which relationships between men, women and between same sex partners have had to be considered, such as the cases that we have already cited.
19. We would add that we do not ignore the decision, that we have already referred to, of the House of Lords in Ghaidan (see above), in which the House decided that section 3 of the Human Rights Act 1998 required the "reading down" of paragraph 2(2) of Schedule 1 to the Rent Act 1977 to enable the surviving homosexual partner of a deceased tenant to seek to succeed to a Rent Act tenancy as if a "spouse" of a deceased tenant within the meaning of that paragraph of the schedule to the Rent Act. Thus, the House did not follow the decision in Fitzpatrick to which we have also already referred, dealing with a situation before the 1998 Act came into force.
20. In our judgment, the arguments as to justification of an interference with Article 8 rights in the Rent Act cases are significantly different from those arising in the context of the criminal law. It is for Parliament to decide what is a crime and what is not.
21. In the case of R v Jones [2006] UKHL 16 at paragraph 29, Lord Bingham of Cornhill referred to the:

"... important democratic principle in this country that it is for those representing the people of the country in Parliament, not the executive and not the judges, to decide what conduct should be treated as lying so far outside the bounds of what is acceptable in our society as to attract criminal penalties. One would need very compelling reasons for departing from that principle."

22. Parliament reviewed the position in 2004 and removed the potential inequality in giving a protection to married couples only and extended it to civil partners. In doing so it decided against any further extension to informal partnerships of either duration, whatever the gender of the partners.
23. We see no reason to extend any further than statute requires a rule of the common law that has become to be regarded as anomalous today. There are very good grounds why a court trying a charge of conspiracy should not have to inquire closely into the nature of personal relationships of alleged conspirators, infinitely variable as they are likely to be from case to case. Nor, in our judgment, should the criminal law turn upon such vagaries.
24. For those reasons, notwithstanding the very helpful submissions made by Mr Norie-Miller, and with the supplement of the written materials by Mr Parish, this application is refused.
25. LORD JUSTICE McCOMBE: Thank you very much, Mr Norie-Miller and Mr Parish.
26. MR NORIE-MILLER: My Lord, I am not sure what the position is with regard to a representation order and whether or not your Lordships would be able to grant a representation order.
27. LORD JUSTICE McCOMBE: Mr Norie-Miller, we will give you a representation order for today because this was an application which the single judge considered ought to be referred to the Full Court. Normally we do not give representation orders except where leave to appeal is granted, but, as the single judge thought the matter was worthy of argument, we grant the representation order you seek.
28. MR NORIE-MILLER: I am very grateful, my Lord, thank you.
29. LORD JUSTICE McCOMBE: Thank you all very much, very helpful.