Bala & Ors, R v

For the spousal exception to criminal conspiracy in section 2(2) of the Criminal Law Act 1977, a spouse is a husband, wife or civil partner in a marriage or civil partnership recognised by English law. An actually polygamous marriage which is void in English law because a party was domiciled in England and Wales does not satisfy that description.

The exception is not confined to monogamous marriages where an actually polygamous foreign marriage is valid and recognised by English law. A previous acquittal of an alleged co-conspirator is ordinarily irrelevant at a later trial. It is exceptional for it to be admitted, and the later jury must decide the case on the evidence before it.

Dr Bala and Mrs Bala-Tonglele had entered an actually polygamous marriage in Nigeria while Dr Bala remained married to another woman. At their first trial at Canterbury Crown Court, they were convicted on a closed conspiracy count to facilitate breaches of immigration law. The trial judge ruled that their marriage was void in English law and that they could not rely on the spousal exception in section 2(2) of the Criminal Law Act 1977.

At a retrial on a separate conspiracy count, Dr Bala, Mrs Bala-Tonglele and Mr Ekwugha were convicted. They challenged, among other matters, the exclusion of evidence that former co-accused had been acquitted at the first trial. The principal issues were the meaning of “spouse” in section 2(2), the relevance of domicile, and the relevance of earlier acquittals at a conspiracy retrial.

1. The court dismissed the appeals and renewed applications. The convictions were safe.

2. Section 2(2) of the Criminal Law Act 1977 applies only where the alleged conspirators are spouses under a marriage, or civil partners under a civil partnership, recognised by English law. Dr Bala’s marriage to Mrs Bala-Tonglele was actually polygamous and, because he was domiciled in England and Wales when it was entered, was void under section 11(d) of the Matrimonial Causes Act 1973. They were therefore not spouses for the statutory exception.

3. Domicile is a mixed question of fact and law. Dr Bala’s domicile of origin was Nigeria, but the evidence of his residence, business, family life and intentions justified the conclusion that he had acquired a domicile of choice in the United Kingdom by 1997. The judge was entitled not to leave the issue to the jury, and the Court of Appeal independently concluded that the conviction was safe.

4. An earlier acquittal of a possible co-conspirator is ordinarily irrelevant at a later trial. Section 5(8) of the Criminal Law Act 1977, reflecting DPP v Shannon [1975] AC 717, provides a limited exception where the later conviction is inconsistent with the acquittal. No such inconsistency arose. The prosecution did not need to prove that the applicants had conspired with the former co-accused, because the jury could and did find that the three applicants conspired with each other.

5. Although unnecessary to the result, the court stated that section 2(2)(a) would extend to a spouse in an actually polygamous marriage that was valid where celebrated and recognised as valid in English law. It also gave guidance that, where evidence of a prior acquittal is exceptionally admitted, the jury should be told its precise relevance and should not decide guilt by reference to any alleged “probable role” of the acquitted person.

• Court of Appeal (Criminal Division) — dismissed the appeals and renewed applications in [2016] EWCA Crim 560.
• Crown Court at Canterbury — at the first trial, convicted Dr Bala and Mrs Bala-Tonglele on the closed conspiracy count and other counts; at the retrial, convicted Dr Bala, Mrs Bala-Tonglele and Mr Ekwugha on a further conspiracy count.