R v Bala & Ors

A spouse in a polygamous marriage may benefit from s.2 (2) of the Criminal Law Act 1977, provided their marriage is recognized under English law.

John Burton QC and Christopher Bertham of 3 Temple Gardens acted for the first appellant.

The first appellant, Dr Bala, entered the UK in 1982 and received British citizenship in 2001. He married his first wife Rosemary Bala in 1985 and his second wife (the second appellant) Mrs Bala-Tonglele in 1997. Both marriages were accepted by the Crown to have been lawful in Nigeria, where they took place.

Dr Bala was the director of a security company that was alleged to have improperly procured immigration documents for a number of its employees. At trial Mrs Bala-Tonglele remained the only co-conspirator on one count of the indictment.

The question arose whether the appellants could be convicted of a closed conspiracy to facilitate a breach of immigration law, having regard to Section 2(2) of the Criminal Law Act 1977 ("the 1977 Act") which provides a statutory exception to the offence of conspiracy where the two parties involved are married to each other.
The court considered Section 11 (d) of the Matrimonial Causes Act 1973 ("the 1973 Act") which states that a polygamous marriage shall be void if either party is domiciled in England and Wales at the time of the marriage.

The court also considered the development of the common law doctrine of "unity" acknowledged in Majwi v The Queen [1957] AC 126, and the refusal of the courts to apply the spousal exemption to witness compellability to partners in polygamous marriages not recognised in English law (Junaid Khan [1987] 84 CAR 45) or to long-term, unmarried couples (Pearce [2002] 1 CAR 39).


The court articulated a "bright line" principle for the purpose of Section 2(2) concluding that the term "spouse" in the 1977 Act is to be taken as a reference to a marriage or civil partnership recognised under English law. It is not a qualitative question concerning the nature of the relationship between the parties.

Dr Bala was regarded as domiciled in the UK when he married Mrs Bala-Tongleli, therefore their marriage was void in England according to Section 11(d) of the 1973 Act. However, the court accepted in principle that the polygamous marriage of a couple, both domiciled outside the UK at the relevant time, would be valid under English law.

The language of the 1977 Act is not restricted to monogamous unions. The common law, particularly Khan, has not specified that polygamous marriages could never be subject to spousal exceptions, only those regarded as invalid under English law.

After considering academic authorities and the genesis of the unity principle, the court averred that the perceived social purpose behind Section 2(2) would still be achieved by recognising more expansive notions of marriage.

The exception under Section 2(2) does apply to polygamous marriages recognised as valid under English law.

Both appeals dismissed.
Permission has been sought to appeal to the Supreme Court.


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