Suski, R. v

Section 2(2) of the Criminal Law Act 1977 gives conspiracy immunity only to a person who is formally married to, or in a civil partnership with, the other alleged conspirator. It does not extend to unmarried cohabitants, however closely their relationship resembles marriage.

In the criminal-law context, that formal boundary is compatible with Article 8. Parliament may define criminal liability by an objective and certain bright-line rule. Courts should not enlarge the statutory immunity by requiring fact-sensitive inquiries into informal personal relationships.

The applicant was convicted at Portsmouth Crown Court of conspiracy to handle stolen goods and conspiracy to transfer and convert criminal property. He received concurrent sentences of four years’ imprisonment.

He applied out of time for leave to appeal against conviction. The court accepted, for the application, that he and his co-accused were unmarried opposite-sex cohabitants in a relationship akin to marriage. He contended that he should have the benefit of the spousal conspiracy immunity in section 2(2) of the Criminal Law Act 1977, either directly or under the Human Rights Act 1998 and Articles 8 and 14 of the Convention.

The central issue was whether that immunity could extend to an informal domestic partnership.

1. The court granted an extension of time, but refused leave to appeal against conviction.

2. The ordinary meaning of “spouse” and “civil partner” in section 2(2) of the Criminal Law Act 1977 was confined to formal legal statuses. An unmarried cohabitant was therefore outside the statutory immunity. The interpretative argument based on Fitzpatrick v Sterling Housing Association [2001] 1 AC 207 and Ghaidan v Godin-Mendoza [2004] UKHL could not succeed. Parliament had expressly added civil partners to the immunity without extending it to informal relationships.

3. The court treated the reasoning in Pearce [2002] 1 Cr App R 551, supported by Van der Heijden v The Netherlands [2013] 57 EHRR 13, as applicable. A formal bright-line rule differentiating married or civil-partner relationships from cohabitation could be justified under Article 8(2). Criminal law requires certainty and objectivity, and the state enjoyed a significant margin of appreciation in fixing that boundary.

4. The tenancy context of Ghaidan v Godin-Mendoza was materially different. The court also applied the constitutional principle stated in R v Jones [2006] UKHL 16: Parliament, rather than the judiciary, decides what conduct attracts criminal penalties. There were sound practical reasons not to make conspiracy liability depend on close factual inquiries into variable informal relationships.

5. Accordingly, neither the statutory immunity nor a Convention-based extension of it was available to the applicant. A representation order was granted for the hearing before the full court.

• Court of Appeal (Criminal Division): In [2016] EWCA Crim 24, the court granted an extension of time but refused the application for leave to appeal against conviction.
• Crown Court at Portsmouth: On 20 November 2014, the applicant was convicted by a jury of two conspiracy offences. On 2 January 2015, he was sentenced to concurrent terms of four years’ imprisonment.