R v Gould [1968] EWCA Crim 1

The appellant pleaded guilty to bigamy after marrying while honestly believing his previous marriage had been dissolved by Decree Absolute. The Court of Appeal held that an honest and reasonable mistaken belief in facts that would make a second marriage lawful is a valid defence to bigamy, departing from R v Wheat.

Facts

On 22nd March 1967, John Arthur Charles Gould was arraigned at Inner London Sessions on a charge of bigamy. In the absence of his counsel, who arrived late, he pleaded guilty. When counsel arrived, he sought to withdraw the plea, arguing that the defendant held an honest and reasonable mistaken belief that a Decree Absolute dissolving his previous marriage had been granted. The Deputy Chairman refused to allow withdrawal of the plea, following the authority of R v Wheat (1921), and the appellant was convicted and given a conditional discharge.

Issues

The central legal question was 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 his former marriage had been dissolved at the time of his second marriage constitutes a valid defence.

Subsidiary Issue

Whether the Court of Appeal (Criminal Division) was bound by the earlier decision in R v Wheat (1921), or whether it could depart from that precedent.

Judgment

Stare Decisis in Criminal Appeals

Lord Justice Diplock addressed the application of precedent in criminal appeals:

“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.”

Analysis of R v Tolson and R v Wheat

The Court examined the conflict between R v Tolson (1889) and R v Wheat (1921). In Tolson, a Court of 14 Judges held that mens rea was required for bigamy despite the absolute terms of the statute. The Court found that Wheat had misinterpreted this decision:

“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.”

Australian Authority

The Court drew heavily upon Thomas v The King (1937) from the High Court of Australia. Mr Justice Dixon’s observations were cited approvingly:

“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.”

Principle Applied

The Court concluded that no principled distinction could be drawn between different types of honest mistaken beliefs affecting matrimonial status:

“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.”

Implications

This case established that an honest and reasonable mistaken belief that a previous marriage has been dissolved is a valid defence to bigamy. It confirmed the flexibility of precedent in criminal appeals, allowing the Court of Appeal to depart from previous decisions where the law had been misapplied. The judgment harmonised English law with the Australian position in Thomas v The King and resolved the conflict between R v Tolson and R v Wheat in favour of requiring mens rea for bigamy offences.

Verdict: Appeal allowed and conviction quashed. The prosecution accepted that the appellant honestly believed, on reasonable grounds, that his former marriage had been dissolved at the time of his second marriage. R v Wheat was held to be wrongly decided.

Source: R v Gould [1968] EWCA Crim 1