R v Gould [1968] 2 QB 65 – Case Summary

In The Court Of Appeal Criminal Division

Judges : Lord Justice Diplock, Mr. Justice Widgery And Mr. Justice Blain

Mr. M. Walker appeared on behalf of the Appellant during Argument, and Mr. H. Groves appeared during Judgment only.

Mr. E. Crowther appeared on behalf of the Crown.

LORD JUSTICE DIPLOCK: On the 22nd March 1967 the appellant was arraigned at Inner London Sessions on a charge of bigamy, and in the absence of his counsel, who was late in arriving at the Court, he pleaded guilty to that offence. His counsel when he arrived sought leave of the Deputy Chairman to withdraw that plea, because he wished to advance the defence that at the time of his second marriage he held honestly and reasonably the mistaken belief that a Decree Absolute dissolving his previous marriage had been granted. The learned Deputy Chairman, taking the view that even if that were established it would not amount to a defence, refused to allow the plea of guilty to be withdrawn and, accordingly, the appellant was convicted and sentenced to a conditional discharge.

The question of law in this appeal is whether on a charge of bigamy under Section 57 of the Offences Against the Person Act, 1861, a defendant’s honest belief upon reasonable grounds that at the time of his second marriage his former marriage had been dissolved is a good defence to the charge. In R. v. Wheat (1921 2 King’s Bench 119) the Court of Criminal Appeal decided that it was not. The learned Deputy Chairman rightly regarded himself as bound by that decision. But we are not.

In its criminal jurisdiction, which it has inherited from the Court of Criminal Appeal, the Court of Appeal does not apply the doctrine of stare decisis with the same rigidity as in its civil jurisdiction. If upon due consideration we were to be of opinion that the law had been either misapplied or misunderstood in an earlier decision of this Court or its predecessor the Court of Criminal Appeal we should be entitled to depart from the view as to the law expressed in the earlier decision notwithstanding that the case could not be brought within any of the exceptions laid down in Young v. Bristol Aeroplane Company Limited (1944 King’s Bench 718) as justifying the Court of Appeal in refusing to follow one of its own decisions in a civil case (R. v. Taylor 1950 2 King’s Bench 368). A fortiori we are bound to give effect to the law as we think it is if the previous decision to the contrary effect is one of which the ratio decidendi conflicts with that of other decisions of this Court or its predecessors of co-ordinate jurisdiction.

The offence of bigamy is a statutory offence.

The enacting words, which are absolute in their terms, set out the three elements in the offence: (a) A married person; (b) going through the form or ceremony of marriage with another person; (c) during the life of his or her spouse.

The circumstances referred to in the first two parts of the proviso relate to element (b) and element (c) respectively and are true exceptions, that is to say, but for the proviso they would fall within the enacting words which precede it, but the second two parts which refer to cases where the former marriage has been dissolved or declared void at the time of the second marriage are not exceptions. They subtract nothing from and add nothing to the enacting words, for a person whose former marriage has been dissolved or avoided is no longer a married person and element (a) in the offence is absent. As a matter of legislative history they are survivals from somewhat similar provisions in the original Act of James I (1 James I Chapter 11) which first made bigamy a felony. What is now the third part of the proviso applied then to divorce a mensa et thoro and was a true exception, for that kind of divorce pronounced by the Ecclesiastical Court did not dissolve a marriage; but what is now the fourth even at that date was not an exception from the enacting words for a person whose former marriage had been declared absolutely void by the Ecclesiastical Courts was no longer married. But in 1603, when the jurisdiction of the Ecclesiastical Courts was still in the realm of political controversy and statutory draftsmanship in its infancy, it may well have been prudent to state expressly what the consequences of decrees of the Ecclesiastical Courts should be as respects the newly created felony. In 1861, which was four years after the transfer to the Court for Matrimonial Causes of the former matrimonial jurisdiction of the Ecclesiastical Courts and the grant to that Court of what was then a novel jurisdiction to grant divorce a vinculo, the draftsman of the Offences against the Person Act may have thought it prudent to include in the proviso provisions corresponding to those in the Act of James I and its successor, 9 George IV Chapter 31 Section 22, lest their omission might give rise to the suggestion that the words “being married” in the enacting part of the Section wore intended to cover cases where the former marriage had been dissolved or declared void by a decree of the Court for Matrimonial Causes. At any rate, we cannot find any other plausible reason for the inclusion of these two provisions in the proviso.

The present case, however, does not fall within the proviso. The appellant’s former marriage had not been dissolved or declared void at the time of the ceremony of his second marriage. The only relevance of the proviso is the light (if any) which it throws upon the proceeding enacting words. They are, as we have already pointed out, absolute in their terms. If they are to be construed literally, a mistaken but honest and reasonable belief by the defendant in a fact which would make his act of going through the second form or ceremony of marriage lawful and innocent, would be no defence.

The question, therefore, is: Are they to be construed literally or as subject to the presumption which is usually applied to statutes creating new criminal offences that a crime is not committed if the mind of the person doing the act in question is innocent?

This question came before a Court of 14 Judges of the Queen’s Bench Division as a Crown Case Reserved in 1889 (R. v. Tolson 23 Queen’s Bench Division 168). By a majority of nine to five they held that the presumption did apply, that the offence created by the enacting words was not an absolute offence, but mens rea was an essential ingredient.

In R. v. Tolson the fact which the defendant believed, which, had it been true would have made her second marriage lawful and innocent, was that her husband by the former marriage was dead although seven years had not elapsed since last she saw him. She could not bring herself within the first exception of the proviso. She relied upon a mistaken though honest and reasonable belief that element (c) in the enacting words – viz. the continuing life of the first spouse – was absent. It is significant, in view of what was said about this decision in Wheat’s case, that the majority reached their decision in spite of and not because of the first exception in the proviso, and the minority were largely influenced in their dissent by its presence there. It is made very clear by Lord Coleridge, Chief Justice, (at pages 201/2) who was at first inclined to dissent, that their decision was based squarely upon the enacting words themselves and was that these, despite the proviso, were to be construed as subject to the general rule applicable to statutes creating serious criminal offences that mens rea is a necessary ingredient in the offence.

In Wheat’s case the defendant’s mistaken belief related to element (a). He claimed to have had at the time of his second marriage ceremony an honest and reasonable belief that his former marriage had been dissolved. The Court of Criminal Appeal, consisting of five Judges, held that this belief, had it been proved, would have been no defence. They sought to distinguish Tolson’s case upon the ground that that decision turned upon the presence of the exception relating to seven years absence as indicating that an honest belief in the death of the former spouse before the seven years had elapsed was a defence, which, but for the exception, it would not have been. But this is almost exactly the converse of the reasoning of the Judges in Tolson’s case. The Court in Wheat’s case also accepted the argument of the Attorney-General that “this exception creates or involves a presumption of death, which, unless rebutted by the prosecution, entitles the accused to an acquittal: in other words the person accused is presumed to believe under such circumstances that the former wife is dead at the time of the second marriage, and therefore has no intention of doing the act forbidden by the statute – namely marrying during the life of the former husband or wife.” But this reasoning, with great respect, does not bear analysis. The defendant has no need to rely upon any presumption of death; it is for the prosecution to prove in every case of bigamy that the former spouse was alive at the time of the second marriage. Nor does the proviso depend upon the defendant’s belief in the death of the former spouse but upon his lack of knowledge that the former spouse was alive. In the case of a young and healthy spouse who goes abroad there may be no reason whatever for believing that he or she is dead. An honest defendant may freely admit that he believed his former spouse to be alive at the time of the second marriage as long as he did not know her to be so at any time within the previous seven years. This was pointed out in terms by Mr. Justice Cave in Tolson’s case (at page 183) and was the very reasoning which persuaded Lord Coleridge, Chief Justice, that the first exception did not qualify the application to the enacting words of the general presumption that mens rea is a necessary ingredient in the offence.

Upon this reasoning which, with great respect, not only misinterprets the judgments in Tolson’s case but is in itself fallacious, the Court in Wheat’s case expressed their opinion that “this decision is not in conflict with the decision of the majority of the Judges in R. v. Tolson but is in accord with the principle of the judgment in R. v. Prince.” We, however, agree with Chief Justice Latham in the Australian case which we are about to cite that these two English decisions of Courts of co-ordinate jurisdiction are in conflict. Tolson’s case decides that mens rea is a necessary ingredient of the felony described in the enacting words despite their absolute terms. Wheat’s case decides the contrary. R. v. Prince, which was discussed at length in Tolson’s case was decided upon another statute which the Court held was intended to punish abduction of a girl without her father’s consent – an act which the Court regarded as mala in se; whereas the legislature in 1861 cannot be thought to have regarded the act of marrying for a second time as mala in se after a previous marriage had ceased to subsist.

In 1937 the matter came before a High Court of Australia which included Chief Justice Latham and Mr. Justice Dixon, who has earned a world-wide reputation as a common lawyer which is outstanding in the twentieth century. The decisions of the High Court of Australia even when so constituted may be persuasive only – but how persuasive they are. In Thomas v. The King (59 Commonwealth Law Reports 297) the defendant’s mistake of fact related to element (a). His former marriage was to a woman who had herself been previously married. At the time of his second marriage he believed honestly and upon reasonable grounds that his first wife’s Decree Nisi had not been made absolute at the date when he married her. Had his belief been correct, his first marriage would have been void ab initio not merely voidable; but what is important is that his mistake of fact was as to whether or not the Court had made a decree dissolving the previous marriage of his first wife. All members of the High Court regarded the case as indistinguishable in principle from Wheat’s case. The majority (Chief Justice Latham and Mr. Justice Dixon with whom Mr. Justice Rich agreed) considered Wheat’s case to be inconsistent with Tolson’s case. Chief Justice Latham said so in terms (at page 292). Mr. Justice Dixon after discussing two suggested grounds of distinction says this:-“The truth appears to be that a reluctance on the part of courts has repeatedly appeared to allow a prisoner to avail himself of a defence depending simply on his own state of knowledge and belief. The reluctance is due in great measure, if not entirely, to a mistrust of the tribunal of fact – the jury. Through a feeling that, if the law allows such a defence to be submitted to the jury, prisoners may too readily escape by deposing to conditions of mind and describing sources of information, matters upon which their evidence cannot be adequately tested and contradicted, judges have been misled into a failure steadily to adhere to principle. It is not difficult to understand such tendencies, but a lack of confidence in the ability of a tribunal correctly to estimate evidence of states of mind and the like can never be sufficient ground for excluding from inquiry the most fundamental element in a rational and humane criminal code.” Mr. Justice Starke dissented on the ground that he ought to follow Wheat’s case and that a mistake as to whether a marriage has been dissolved is a mistake of law and not of fact. This formed no part of the ratio decidendi in Wheat’s case and was disposed of, as we think unanswerably, by Mr. Justice Dixon (at pages 306-308). Mr. Justice Evatt also dissented, but on the broader ground that public policy required that a person who married again during the lifetime of another person who had been his wife did so at his own risk. He did not seek to support this by consideration of the wording of the Victorian Act which was in similar terms to the English one. No member of the Court suggested that there was any relevant distinction between a mistaken belief in a fact which if true would have the legal consequence of making the former marriage void ab initio, and one which would have the legal consequence of avoiding a voidable marriage or of dissolving a valid one. The decision of the majority was that a mistaken belief, held honestly and upon reasonable grounds, in a fact which if true would have had the legal consequence that the defendant was not married at the time of the second marriage ceremony (i.e. that element (a) in the offence was lacking) was a good defence.

In R. v. King (1964) 1 Queen’s Bench 285 the Court of Criminal Appeal in England followed the decision of the High Court of Australia. The mistake of fact there was that at the time of his former marriage the defendant’s own previous marriage to another person had not been dissolved. Had this been so the former marriage would have been void ab initio and his second marriage in respect of which he was charged with bigamy would not have been bigamous.

In this respect the case was on all fours with Thomas v. The King. The Court of Criminal Appeal, however, expressed the view not only that their own decision did not conflict with the decision in Wheat’s case, but that the Australian High Court themselves felt that Thomas v. The King was clearly distinguishable from Wheat’s case. With great respect, this latter view must have been formed per incuriam. We have already referred to the passages in the judgments of Chief Justice Latham and Mr. Justice Dixon which show the contrary.

If there is a distinction in principle between Wheat’s case and King’s case wherein does that distinction lie and how is it to be extracted from the wording of the Section? In King’s case the Court approved and followed the direction of the Common Sergeant in Thomson’s case (1906 70 Justices of the Peace 6) of which Mr. Justice Avory had said in Wheat’s case: “we doubt if it can be supported consistently with our present decision.” This, as the Court pointed out in King’s case was obiter, but where does the distinction lie? The mistake in both cases was of the same kind: whether or not a Court of competent jurisdiction had made a decree dissolving a marriage. No-one, apart from Mr. Justice Starke, has ever suggested that this is not a mistake of fact. In both cases the fact mistakenly believed to have been true would, if true, have had the legal consequence that at the relevant time for seeing whether element (b) of the offence existed, i.e. the date of the second marriage ceremony, element (a) was absent – i.e. the defendant was not married. The legal consequences differ in one respect only, that in King’s case the defendant would never have been married to his former reputed wife, whereas in Wheat’s case he would at some time previous to the relevant time have been married to his former wife.

But what construction could be placed upon the words of the Section which would result in this distinction between the legal consequences of the supposed fact being relevant to the guilt or innocence of the honest and reasonable believer of the fact? There might perhaps be a plausible argument, based on the second part of the proviso, that the expression “being married” in the enacting words should be construed as “having been married”. This would have the effect of making the provisions of the proviso relating to dissolution and declarations of nullity of the previous marriage true exceptions to the enacting words instead of surplusage as they are if “being married” is construed in the present tense, in which grammatically it is. We doubt if in any event it would be permissible to let the tail in the proviso wag the dog in the enacting words. But even if it were the only effect would be that the fact mistakenly believed to have been true in King’s case would, if true, have made the second marriage innocent because the defendant did not come within the expression “having been married” in the enacting words, whereas the corresponding fact in Wheat’s case would, if true, have made the second marriage innocent because the defendant did come within the exception in the proviso as being a “person who at the time of such second marriage shall have been divorced from the bond of the first marriage”.’

Once it is accepted, as it has been in King’s case, that the offence is not an absolute one and that honest and reasonable belief in a fact affecting the matrimonial status of the defendant which, if true, would make his second marriage lawful and innocent can constitute a defence, there can in our view be no possible ground in justice or in reason for drawing a distinction between facts the result of which would be that he was innocent because he did not come within the enacting words at all, and facts the result of which would be that he was excluded from the enacting words by the proviso.

Given that the belief is formed honestly and upon reasonable grounds, there can be no difference on grounds of moral blameworthiness or of public policy between a mistaken belief that a Decree Absolute has been granted as in Wheat’s case and one that it has not as in King’s. Indeed, it needs little ingenuity to postulate circumstances in which the existence of a Decree Absolute would make the defendant’s first purported marriage void ab initio as the absence of a Decree Absolute would have done in King’s case and Thomas v. The King.

To draw such fine distinctions would we think, in the words of Mr. Justice Dixon, (at page 311 of the report) “lead to consequences which would not only be contrary to principle but which would be discreditable to our system of criminal law”.

We think that wheat’s case was wrongly decided. We agree with the High Court of Australia that it conflicts with Tolson’s case. In this respect we respectfully differ from the opinion expressed by the Court of Criminal Appeal in King’s case, but our decision is in conformity with the result arrived at in King’s case and those parts of the reasoning which led to that result.

The prosecution accept that the appellant at the time of the second marriage did honestly believe that his former marriage had been dissolved and that he had reasonable grounds for that belief. This appeal is, accordingly, allowed and the conviction quashed.

I should like to say how much we are indebted to Mr. Crowther and to Mr. Walker for the argument in this case, it was of great assistance to us.

MR. CROWTEER: My Lord, your Lordship will have noticed that so convinced has one been by the judgment that one has made no further application in this matter.

LORD JUSTICE DIPLOCK: Had you made one we should, of course, have granted it.