R (on the application of the Crown Prosecution Service) v Registrar General of Births, Deaths and Marriages
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE WALLER,SIR PHILIP OTTON,THE PRESIDENT |
| Judgment Date | 07 November 2002 |
| Neutral Citation | [2002] EWCA Civ 1661 |
| Docket Number | C/02/2293 |
| Court | Court of Appeal (Civil Division) |
| Date | 07 November 2002 |
: [2002] EWCA Civ 1661
Court and Reference:Court of Appeal; C/02/2293
: Butler-Sloss P, Waller LJ, Sir Philip Otton
: R Gordon QC and M Chamberlain (instructed by the CPS) for the CPS; A Foster QC and J Richards (instructed by the Solicitor for the Department of Health and the Department for Work and Pensions) for the Registrar General; R Furniss (instructed by Berrymans, Lace, Mawer) for the director of the prison; E Bartley Jones QC and L Browne (instructed by Linskills) for the prisoner.
Whether the Registrar General should have refused to allow a remand prisoner to marry a prosecution witness, and whether the prison director should have refused to allow the marriage to take place in his prison.
: J was on remand facing a charge of murder; his long-standing partner, B, was a key witness for the prosecution. J and B decided to get married; this would prevent her from being compelled to give evidence against J. Marriages in prison have been allowed since theMarriage Act 1983 amended the Marriage Act 1949; they are solemnised on certificates from the superintendent registrar for the areas where the parties reside, which must identify the place of detention and state that the prison governor or director does not object (which may be done under s. 27A of the 1949 Act); s. 31 of the 1949 Act states that the certificate shall be issued on request. J asked the prison director for permission, and he stated that he had no objection; J and B then gave notice of their intended marriage to the superintendent registrars of their respective registration districts, pointing out the lack of objection. The Crown Prosecution Service made representations to the registrars, who referred the matter to the Registrar General of Births, Death and Marriages, who decided that there were no public policy grounds which affected the duty under s. 31 of the 1949 Act to issue a certificate of marriage.
The Crown Prosecution Service challenged by judicial review the decision of the Registrar General to refuse to withhold the issue of a certificate of marriage for public policy reasons, and for similar reasons the decision of the prison director not to object on public policy grounds to the use of the prison for the marriage. An expedited hearing was held as the criminal trial was soon to commence.
On 4 November 2002 ([2003] Prison Law Reports 93), Maurice Kay J upheld the challenge to the decision of the Registrar General, holding that public policy considerations required that the certificate of marriage be withheld where it's issue might facilitate the commission of a serious crime (perverting the course of justice), or avoidance of liability for a serious crime; the decision of the prison director not to object was upheld on the basis that the public policy grounds applied only at the level of the Registrar General. The Registrar General appealed to the Court of Appeal on the basis that the judge erred in his application of public policy limitations to a statutory duty; the CPS appealed the judge's conclusion that the public policy considerations did not apply to the discretion of the prison director to object to the use of the prison for the ceremony.
:
Waller LJ1. 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 4 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 [2003] Prison Law Reports 93:
"1. … J is one of 3 men charged with the murders of P and H on 19 June 2002. The trial is listed to commence in [the] Crown Court on 19 November, having been put back a week because of these judicial review proceedings. The killings were savage and brutal. The evidence suggests that the 2 victims were tortured and battered to the head with baseball bats, after which their assailants urinated on their bodies. J is presently a remand prisoner.
2. The major, but not the only, evidence against J is contained in 5 witness statements made to police officers by Miss B between 20 June and 1 July. They include evidence of admissions and about clothing. Miss B and J have been living together for 6 or 7 years. She has 3 children aged 11, 10 and 8, of whom her former husband is the natural father. There is a 4th child, aged 4, of whom J is the natural father. In her 3rd witness statement, dated 23 June, Miss 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 Miss B made a 6th 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 2002 a member of the prison chaplaincy team had written to the Crown Prosecution Service ('the CPS') with the information that J had indicated that he wished to apply to the director of the prison for permission to marry Miss B.
4. Notwithstanding the terms of the witness statement of 2 August, the prosecution propose to call Miss 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 s. 80 of the Police and Criminal Evidence Act 1984 (as amended by s. 67(1), (3) of and paras 12 and 13 of Sched 4 to 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 Comr [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 s. 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 in an attempt to persuade them to refuse to allow the marriage to take place until after the trial. The positions of the director of the prison and of the Registrar General are the subject of statutory provisions in the Marriage Act 1949 (as amended by the Marriage Act 1983). I shall refer to the statutory framework in a moment. In the event, the director of the prison and the Registrar General 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 2002 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. He also made an order imposing restrictions on publicity until after the conclusion of the criminal trial and I confirmed those restrictions at the commencement of the hearing on 28 October.
6. In a nutshell, the central issue before me is: does the Registrar General or the director of the prison 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 of the prison, separately represented, resisted. In addition, J and Miss B as the parties wishing to get married joined as interested parties to support the argument of the Registrar General and the director of the prison."
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...
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...Kingdom (2000) 33 EHRR225..................................................... 40Isack v Clark, 1 Rolde 125 (1613) .... 153J and B, Re [2002] EWCA Civ 1661 .. 143JB v Switzerland, Application No.31827/96, 3 May 2001 .....................42Jasper v United Kingdom (2000) 30EHRR 441, [2000] Cr......
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