R (on the application of the Crown Prosecution Service) v Registrar General of Births, Deaths and Marriages (2024)

Judgment

:

1. This application raises a point of considerable public importance. 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 at [a prison].

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 4^th child, aged 4, of whom J is the natural father. In her 3^rd 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 6^th 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 2 days before the trial of the husband (albeit in relation to an offence of violence against the woman herself in circ*mstances 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.

The Statutory Framework

7. Although the law of England and Wales used not to allow marriages to take place in prison (as opposed to the marriages of prisoners given temporary release for that purpose), the opinions of the European Commission of Human Rights in Hamer v UK(1979) 4 EHRR 139 and Draper v UK (1980) 24 DR 72 were to the effect that that position was not compatible with Art 12 of the EuropeanConvention for the Protection of Human Rights and Fundamental Freedoms, which provides:

'Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.'

This led to the amendment of the Marriage Act 1949 by the Marriage Act 1983. The relevant parts of the 1949 Act in its amended form are to be found in Part III which is headed 'Marriage under Superintendent Registrar's Certificate'...