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Published online by Cambridge University Press: 23 January 2018
The fact that the criminal law in England and Wales continues to afford protection to spouses who conspire together to commit crime is considered by many to be an anachronism. That a person cannot be guilty of conspiracy if the only other person with whom he or she agrees is his or her spouse, is to be found in section 2 of the Criminal Law Act 1977. The origins of the rule are said to be based on biblical principles pertaining to marriage. The difficulty with that is that the concept of marriage has changed significantly over time, which raises the question of whether or not the existence of the exemption can today be justified. In R v Yilkyes Finok Bala and Others [2016] EWCA Crim 560, the Court of Appeal was faced with the question of whether or not the legislative exemption applied to those who were party to a polygamous marriage. While acknowledging that there are arguments in support of the proposition that the exemption is outmoded, the Court of Appeal nevertheless interpreted the statutory provision in such a way so as to encompass parties to a polygamous marriage recognised under English law as valid. By virtue of the Civil Partnership Act 2004, the exemption was extended to cover civil partners. The expansion of the exemption is curious in the light of prevailing attitudes towards the applicability of the exemption at all in modern times. Furthermore, other statutory provisions (relating to analogous matters) have either been enacted or repealed to reflect present-day understandings of how the issue of marriage interacts with the criminal law. Yet, for reasons which are not altogether clear, the spousal exemption vis-à-vis the criminal offence of conspiracy remains in force.
1 [2016] EWCA Crim 560; [2017] QB 430.
2 Civil Partnership Act 2004, Schedule 27, para 56.
3 (1860) LR 1 P & D 130.
4 Ibid at para 45.
5 [1957] AC 126.
6 Police and Criminal Evidence Act 1984, s 80.
7 84 Cr App R 44.
8 Ibid at para 50.
9 [2016] EWCA Crim 24.
10 Ibid at para 13.
11 Ibid at para 18.
12 Ibid at paras 22–23.
13 [2016] EWCA Crim 560 at para 55.
14 Ibid at para 67, emphasis added.
15 Ibid at para 76.
16 [1957] AC 126.
17 Ibid, p 135.
18 Ibid, p 134. See also Hawkins, W, Pleas of the Crown, eighth edition (London, 1824), vol 1, pp 448–449 Google Scholar: ‘it hath been holden, that no such prosecution is maintainable against a husband and his wife only, because they are esteemed but one person in law and presumed to have but one will’.
19 One could, of course, also use Genesis as the foundation for the acceptability of polygamous marriages and as support for the proposition that such marriages should be caught by the section 2(2)(a) exemption. In Genesis 4:19, Lamech (a descendant of Cain) takes two wives: Adah and Zillah.
20 [1954] SCR 498.
21 Ibid, p 510.
22 Ibid, pp 507–509.
23 Ibid, p 511.
24 Ibid.
25 Ibid, p 500.
26 Ibid, p 503.
27 In this regard, see Schedule 7(2) (para 27) of the Marriage (Same Sex Couples) Act 2013, which amends section 11(c) of the Matrimonial Causes Act 1973 so that the fact that a couple does not comprise a man and a woman does not make a marriage void.
28 See Ghaidan v Godin-Mendoza [2004] UKHL 30, in which the House of Lords read paragraph 2(2) of Schedule 1 to the Rent Act 1977 in such a way as to afford rights to a same-sex partner as if he had been a spouse.
29 Law Commission No 76 (17 March 1976).
30 Ibid, p 20.
31 Ibid.
32 Ibid.
33 Law Reform Commissioner (Victoria), Report No 3, Criminal Liability of Married Persons (Melbourne, June 1975).
34 Law Commission No 76, p 21.
35 R v Darwin and Darwin [2009] EWCA Crim 860.
36 J Rozenberg, ‘Defence of marital coercion used by Vicky Pryce to be abolished’, The Guardian, 17 January 2014, available at <https://www.theguardian.com/law/2014/jan/17/defence-marital-coercion-vicky-pryce-abolished>, accessed 31 August 2016.