R (Crown Prosecution Service) v Registrar General of Births, Deaths and Marriages

An apparently absolute statutory duty may be subject to an implied public-policy limitation, but the limitation must be defined narrowly and consistently with the statutory scheme.

A lawful marriage is not perverting the course of justice merely because it makes a spouse non-compellable under Police and Criminal Evidence Act 1984, section 80. Nor is a broad possibility that marriage may help an accused avoid liability enough to delay it. Parliament’s choice to preserve spousal non-compellability, together with the right to marry, is significant. A responsible authority’s statutory statement that it has no objection to a prison being named as the venue concerns the establishment and its practical suitability. It does not confer a general power to prevent or postpone marriage on public-policy grounds.

The Crown Prosecution Service sought judicial review after J, charged with murder, proposed marrying B before trial. B’s earlier statements were important prosecution evidence, but marriage would make her non-compellable under section 80 of the Police and Criminal Evidence Act 1984.

The prison Director and Registrar General declined to delay the proposed marriage. Maurice Kay J granted relief against the Registrar General on implied public-policy grounds but refused relief against the Director. The Registrar General and J and B appealed, while the CPS appealed against the refusal of relief against the Director. The central issue was whether either public authority had power to prevent or postpone the marriage until after trial.

1. Disposition. The Court of Appeal unanimously allowed the Registrar General’s appeal and dismissed the CPS appeal concerning the prison Director. The relief granted against the Registrar General was therefore set aside.
2. Implied public-policy limits. The court accepted the principle in R v Secretary of State for the Home Department, ex parte Puttick [1981] QB 767 that an apparently absolute statutory duty may be subject to implied public-policy limitations. Such a limitation may prevent a person benefiting from their own crime, but its precise ambit must be identified. R v Registrar General, ex parte Smith [1991] 2 QB 393 concerned exceptionally extreme facts involving an obvious risk of serious harm. Whether a comparable limitation could ever operate in relation to the marriage-registration duty was left open.
3. Marriage and spousal compellability. Entering into a lawful marriage, with the consequence that a spouse becomes non-compellable under section 80 of the Police and Criminal Evidence Act 1984, is not thereby perverting or attempting to pervert the course of justice. A broad limitation based on the possibility that marriage might facilitate avoidance of liability for serious crime was rejected. An accused remains entitled to defend himself by calling witnesses, cross-examining witnesses, gathering evidence and taking legitimate points on admissibility.
4. Parliamentary choice and the right to marry. Section 80 was enacted against the background of Hoskyn v Metropolitan Police Commissioner [1979] AC 474, yet Parliament retained the statutory protection even where marriage occurred shortly before trial. Taking advantage of that protection after marriage is not unlawful or contrary to public policy merely because it may be one objective of the marriage. The right to marry, recognised domestically and by article 12 of the Convention, includes the ordinary incidents of marriage.
5. The prison Director. Section 27A(3)(b) of the Marriage Act 1949 required a statement that the responsible authority had no objection to the establishment being specified as the place of solemnisation. Its scope was confined to matters such as the establishment’s convenience and availability. It did not confer a general discretion to object to or postpone the marriage on public-policy grounds.
6. Concurring observations. Sir Philip Otton agreed with the result and observed that the bona fides of a proposed marriage might be challenged at trial or in separate proceedings. He declined to formulate a general rule from the particular facts and noted that legitimate personal reasons might exist for marrying before trial.

1. Court of Appeal: In [2002] EWCA Civ 1661, the Registrar General’s appeal was allowed and the CPS appeal against the refusal of relief against the prison Director was dismissed.
2. High Court, Queen’s Bench Division: Maurice Kay J granted judicial review relief against the Registrar General on implied public-policy grounds, but refused relief against the Director.