Section 1 of the Criminal Law Act 1977 (“the 1977 Act”) creates the statutory offence of criminal conspiracy. Section 2 (2) of the 1977 Act provides, in the relevant respects, as follows:

In the events which happened, the first appellant (“Dr Bala”) and the second appellant (“Mrs Bala-Tonglele”) were the only persons ultimately alleged to be the conspirators on one count of the indictment which they were facing: that is to say, it was a “closed” conspiracy. Dr Bala and Mrs Bala-Tonglele had been married in Nigeria in 1997. That marriage, however, was in actuality polygamous (Dr Bala being then, as he has remained, married to another woman, Rosemary Bala): albeit the second marriage was valid under the laws of Nigeria. The question thus arising is whether they could properly be convicted of conspiracy on that count, having regard to the provisions of s. 2(2) of the 1977 Act.

It is said that there is no direct authority on the point; and the point also may have implications for other cases.

Leave to appeal was granted on this issue by the Single Judge. Dr Bala, however, also seeks to renew certain other grounds in respect of which leave was refused by the Single Judge.

There also are other matters before the court. At the trial at which these points arose there was another count of conspiracy (Count 1) to which these appellants and certain other defendants were said to be party. The jury acquitted those other defendants and could not agree with regard to these appellants. At the retrial, a further party (“Mr Ekwugha”) was named as a conspirator and joined as a defendant. All three were convicted. The principal ground of challenge on the renewed applications, leave having been refused by the Single Judge, relates to the refusal of the trial Judge to permit the acquittals of the co-accused at the first trial to be adduced in evidence at the second trial. Mr Ekwugha seeks also to renew certain other grounds of appeal.

Dr. Bala was represented before us by Mr John Burton QC, leading Mr Bertham. Mrs Bala-Tonglele was represented before us by Mr Sidhu QC. Mr Ekwugha was represented before us by Ms Hollis QC. The Crown was represented before us by Mr Farrell QC, leading Mr Stott. The case was well argued on all sides, at a hearing for which only a relatively limited amount of time had been made available.

For present purposes, we need set out the background facts only relatively briefly.

Dr Bala was born in Nigeria in 1959. He married Rosemary Bala in Nigeria in 1985 and there was a further marriage between the two, entered into in London, on 20 April 1996 as evidenced by a certificate of that date subsequently recovered from his home. Dr Bala married Mrs Bala-Tonglele in Nigeria, where she lived, in 1997. He was still married to Rosemary Bala at that time and he remains married to Rosemary Bala. It was said at trial (although no expert evidence was adduced) that, under his traditional faith and under Nigerian customary law, Dr Bala was entitled to take up to seven further wives: and at all events the Judge proceeded on the assumption that the marriage to Mrs Bala-Tonglele was valid under Nigerian law. Mr Farrell has not sought to dispute that on this appeal.

Dr Bala came to the United Kingdom in 1982. He studied at the Greenwich School of Management, a private college, for some seven years. He acquired various qualifications including an MBA and a Ph.D issued by Clayton University, an American college with a campus in Greenwich. Having obtained these qualifications, Dr Bala determined on pursuing a business career in England.

In May 1989 he established a company called Armour Security. That was incorporated; and he and his wife Rosemary Bala were the directors. In practice he was the sole executive director. He was also the majority shareholder. In 1993 he was granted indefinite leave to remain in the United Kingdom. He subsequently was naturalised, taking British citizenship in 2001. He has at all material times resided in London. His children with Rosemary Bala have all resided with him and been educated in this country. His two children with Mrs. Bala-Tonglele were naturalised as British citizens in 2006, although it seems that Mrs Bala-Tonglele did not herself acquire British citizenship and indeed for much of the time lived variously in Nigeria and the United Arab Emirates.

The business established in the United Kingdom by Dr Bala had a number of different operations, trading under different names. It was a very substantial business. It specialised in providing security guards. It had hundreds of employees. Following the establishment of the Security Industry Authority in 2005 it became important for the Armour Group to acquire and retain approved status.

Many people employed in the security industry are, it seems, foreign nationals. In order to obtain approval for the employment of various such individuals the Armour Group would submit applications accompanied by a document known as a Convention Travel Document (“CTD”). Put shortly, an individual who had successfully claimed asylum in a Convention country could seek to obtain a CTD, which in broad terms conferred both rights of travel and proof of identity corresponding to a passport. It also gave potential rights for seeking the admission of family members.

There was an employee of the executive agency of the Home Office now known as the United Kingdom Border Authority but then known as the Border and Immigration Agency called Mrs John-Ayo. She was corrupt. She subsequently was convicted and received a substantial custodial sentence. Over a period of time she had caused to be issued improperly some 213 CTDs. The CTDs were issued in the names of non-existent people, albeit using details of people who did exist. Of these CTDs, 81 in number were sent to Royal Sovereign House at an address in London SE18. That was the Head Office of the Armour Group.

It emerged that a number of individuals, either employed within the Armour Group or in familial relationships, were the recipients or beneficiaries of the improperly issued CTDs. On many occasions, as was the prosecution case, individuals working for the Armour Group in effect “swapped” their identities to match the identities of the CTDs, thereby enabling them to meet the requirements of the Security Industry Authority, obtain National Insurance numbers and so on. It was said that Dr. Bala was at the heart of this deception, knowingly assisted by Rosemary Bala, Mrs Bala-Tonglele and other employees of the Armour Group. A large amount of documentation was produced designed to show the extent of the involvement within the Armour Group of those alleged to be party to the conspiracy. This was in due course to constitute Count 1 on the indictment.

The Crown was also to allege that the provision of false CTDs was not the only way in which immigration controls were being breached.

What was said was that a woman named as Aisha Mohammed Bana (sic), with a date of birth given as 28 August 1967, applied for and was granted leave to enter in 1991 on a 6 month visitor visa. This was extended, on a working holidaymaker basis, until 1995. It was not thereafter renewed. She was listed as the secretary and a shareholder of the Armour Group. In 1996, a woman names as Hadiza Idris, with a date of birth given as 7 October 1968, entered the United Kingdom on a 6 month visa. She made further applications to remain, including one application made in 2000. Further leave to remain was granted thereafter to April 2003. She was shown as a director of the Armour Group. In 2004 she returned to Nigeria on a Nigerian issued travel document and there obtained a passport in the name of Giwo Faith Bala-Tonglele. It was subsequently to be common ground that she was one and the same as Aisha Bana and Hadiza Idris and that she had worked for the Armour Group and had obtained National Insurance numbers in those names.

Thereafter she applied for a multi-visit visa to the United Kingdom for herself and her two children (her children by Dr Bala). In 2006 she entered into a deed poll renouncing the name of Hadiza Idris and changing her name to Giwo Faith Bala-Tonglele. For some periods she went to live in the United Arab Emirates. In 2007 she was apparently experiencing difficulties in obtaining a visa to enter the United Kingdom in order, as it was said, to have contact with her two children (who it was asserted were then living with Dr Bala in London and were being educated at a school in Blackheath). In an application to the County Court for a contact order, issued in September 2007, she among other things stated that she had never been married to Dr Bala.

Ultimately in December 2007 Mrs. Bala-Tonglele applied for indefinite leave to remain in the United Kingdom. On her application form she stated that she had previously been known as Hadiza Idris.

The prosecution was to allege – these matters variously constituting Counts 2 and 3 on the indictment – that intermingled identities and dates of birth had been dishonestly used to obtain entry and leave to remain in the United Kingdom. She was to make no comment in interview but subsequently was to deny any dishonesty, saying that she had been known by such other names and that any mistakes were inadvertent slips. Dr Bala denied any dishonest involvement in any conspiracy in this regard.

A further allegation was made by the Crown with regard to a man called Raphael Tonglele, said to be a relation of Dr Bala. He too was for various periods shown as a director and employee of the Armour Group. It was said that Dr Bala had assisted in procuring his entry into the United Kingdom on various occasions by the use of false names and other details. That was to constitute Count 4 on the indictment.

Count 2 was also a count of conspiracy to facilitate the breach of immigration law. The parties specifically identified in the Particulars of Offence were Dr Bala, Mrs. Bala-Tonglele, Rosemary Bala and Salus Fernandes. The period of that conspiracy was put at 10 February 2003 to 12 December 2009. It was alleged in the Particulars of Offence that they “conspired together and with others” to facilitate the breach of immigration law.

Count 3 was a count of obtaining leave to remain by deception, directed solely at Mrs Bala-Tonglele. Count 4 was a count of conspiracy to facilitate the breach of immigration law. In the Particulars of Offence it was stated that Dr Bala, between dates in January 2005 and March 2011, conspired with Emmanuel Tonglele, Raphael Tonglele and others to facilitate the breach of immigration law “namely s. 24A(1) of the Immigration Act 1971 by Raphael Tonglele, a non–EU citizen, contrary to s. 25(1) of the Immigration Act 1971”,

We are not concerned with other counts on the indictment.

The first trial commenced at the Canterbury Crown Court in October 2013. The trial Judge was Her Honour Judge Heather Norton.

Submissions of no case to answer were made at the close of the prosecution case. The Judge dealt with them in an impressively full and thorough ruling handed down on 30 October 2013. The Judge rejected the submissions on Count 1. As to Count 2, the Judge was satisfied that there was a case to answer so far as concerned Dr Bala and Mrs Bala-Tonglele. She was not so satisfied with regard to Rosemary Bala or Salus Fernandes. She also considered that, on the evidence, there were no “others” involved in that alleged conspiracy (a conclusion which is not now challenged by the Crown). Thus it was that the only two alleged conspirators remaining on Count 2 were Dr Bala and Mrs Bala-Tonglele – hence the legal issue arising by reference to s. 2(2) of the 1977 Act.

In this regard, the point which is the point now taken on this appeal was raised before the Judge. Reference was made to s. 11(d) of the Matrimonial Causes Act 1973, which we shall come on to mention, and to certain authorities. The Judge, having proceeded on the assumption that the marriage between Dr Bala and Mrs Bala-Tonglele was a valid marriage in Nigerian law, stated this:

We are not concerned with other aspects of her ruling, relating to other defendants and other counts.

The trial thus proceeded. It is the recollection of Mr Burton and Mr Bertham, as stated to us, that before Dr Bala gave evidence Mr Burton asked the Judge if he was free to ask him questions relating to his domicile and that the Judge ruled that he was not. It is the position of Mr Farrell and Mr Stott that no such ruling was ever sought or given. At all events, we ourselves have seen no transcript or note of any such ruling if there was one. In the course of his lengthy questioning, at all events, Dr Bala gave much evidence – without any limitation imposed - about his background and about his residence and business activities in the United Kingdom as well as his status in Nigeria. This was designed, so Mr Farrell said, to present him as a model citizen.

Before speeches, Mr Burton asked the Judge for directions about addressing the jury on the issue of domicile and on the issue of s. 2(2) of the 1977 Act, saying that it was a live issue. It is puzzling that Mr Burton would make such a request if his position and understanding had been that such issue had already been closed off by prior ruling of the Judge. On the other hand, the Judge, in giving her detailed written directions to counsel on the various points which had been raised, included this ruling on Mr Burton’s request with regard to Count 2:

The Judge thereafter gave a most detailed and careful summing–up. As previously indicated by her, no issue under s. 2(2) of the 1977 Act was left to the jury. Verdicts were returned variously on 18 and 19 December 2013. In the result, the jury were not able to agree with regard to Dr Bala and Mrs Bala-Tonglele on Count 1. They acquitted Rosemary Bala and also acquitted the remaining named defendants (Fernandes, Onuoha, Barau and Makwar) on Count 1. On Count 2 they convicted Dr Bala and Mrs Bala-Tonglele. On Count 3 they convicted Mrs Bala-Tonglele. On Count 4 they convicted Dr Bala. On the remaining counts, relating solely to the co-accused Barau, they convicted.

There was a retrial of Dr Bala and Mrs Bala-Tonglele on Count 1. By this time, Mr Ekwugha’s whereabouts had been ascertained and he had in the interim been arrested and charged. He was named as a defendant on the indictment, the Crown’s case in essence being that he was a senior employee in the “control room” at Armour Group’s offices and knowingly involved himself in the alleged conspiracy. The Particulars of Offence on Count 1 named the three as conspirators; it was further said that they “conspired together and with Theophilius Offor….and with others” to facilitate the breach of immigration law. There were also other counts on that indictment, which were directed at Mr Ekwugha alone. Mr Ekwugha was, among other things, alleged knowingly to have used a false CTD and false identity in the name of Nduenga.

In the result, the second trial started on 8 July 2014. The trial judge again was Her Honour Judge Norton. By verdicts delivered on 31 July 2014, the jury unanimously convicted each of the three defendants on Count 1. They also convicted Mr Ekwugha on two other counts which he faced.

It may be noted that, before that trial, counsel for the defendants and particularly Ms Hollis for Mr Ekwugha were pressing the prosecution to name by further particulars the “others” who it was alleged were party to the alleged conspiracy. The prosecution declined to do so. Initially, by a Note dated 13 June 2014 submitted before trial, the Crown had indicated that it would be “content” to name as co-conspirators the five who had been acquitted at the first trial. That stance in due course changed. The Crown, having considered further legal authorities, including Cook [2012] 1 CAR 23, indicated by a further Note dated 7 July 2014 that it did not, after all, propose to name on the indictment as co-conspirators those who had been acquitted. The Crown’s stated stance was that “they are probably guilty of Count 1 but the jury did not have to decide whether they are or not.” It was further said that: “if it becomes necessary to assist the jury in due course to the situation that arises if they are sure a defendant only entered into a conspiracy with an acquitted defendant then an appropriate direction can be formulated.”

The trial proceeded. Shortly before the prosecution case closed the defendants sought to have the previous acquittals adduced in evidence. The Judge gave a detailed written ruling on the point. She noted that the Crown’s stance had “wavered somewhat” as evidenced by these various Notes. She noted that the defendants had been content not to press for the acquitted defendants being named on the indictment. She noted the submissions of the defendants to the effect that, at the least, to adduce the acquittals would give a “full and balanced” picture and would help “avoid speculation.” She noted the more fundamental submission that “balance and fairness” required that the acquittals be in evidence. The Judge took the view that the acquittals were, essentially, irrelevant. In the course of her ruling she said this:

The trial proceeded. A submission of no case to answer was rejected. In due course, as we have said, the jury convicted.

For completeness, we should add that Dr Bala was sentenced to 30 months imprisonment on Counts 2 and 4 at the first trial and 7 years concurrent on Count 1 at the second trial. Mrs Bala-Tonglele was sentenced to 12 months imprisonment on Counts 2 and 3 at the first trial and a further 4 years imprisonment on Count 1 at the second trial. Mr Ekwugha was sentenced to a term of imprisonment totalling 4 years imprisonment.

Mr Burton submitted that, it being accepted that Dr Bala and Mrs Bala-Tonglele were lawfully, even if polygamously, married in Nigeria in 1997 they were “spouses” for the purposes of s 2(2) of the 1997 Act and that was the end of it. He acknowledged that the presumed policy purpose underpinning s. 2(2) of the 1977 Act as to spouses might in many quarters seem thoroughly outmoded. Indeed, there have been recommendations that such provision be repealed. But he was able to point to the reaffirmation of that presumed purpose in 2004, with regard to civil partners. Moreover, since civil partnership is a construct of statute it can be said that on one view Parliament has designedly taken the matter further than the previous common law.

Mr Burton went on to submit, and eloquently so, that those who are married under polygamous marriages are not to be, and should not be, differentiated from those married under monogamous marriages. Differences in cultural norms in this regard are to be acknowledged, not rejected: and husband and wife, whether the relationship be monogamous or polygamous, share the like considerations of intimacy and confidentiality ordinarily attaching to the marital relationship (we put it in our words, not his, but that is what it came to).

Mr Burton’s primary case was the same whether Dr Bala was domiciled in the United Kingdom or not in 1997, which was when he entered into the polygamous marriage with Mrs Bala-Tonglele. But his alternative argument – having regard to the provisions of s. 11 of the Matrimonial Causes Act 1973 – was that the issue of whether or not Dr Bala was domiciled in the United Kingdom in 1997 should not have been withdrawn from the jury. The underpinning rationale for this argument was that a polygamous marriage entered into lawfully in Nigeria by a couple who were domiciled in Nigeria would, he said, be recognised as valid and lawful in the United Kingdom; and so each would, he said, be a “spouse” for the purposes of s. 2(2) of the 1997 Act. Further, Mr Burton submitted that this point, if correct, would have a bearing on the safety of the conviction at the second trial: as evidence of the convictions at the first trial had been adduced as propensity evidence at the second trial.

Mr Sidhu, for Mrs Bala-Tonglele, adopted a somewhat different stance. Mr Sidhu was very much alive to possible objections (on grounds of potential abuse and otherwise) that could be taken in this context if a man – it is always a man; cases of polyandry seem never to come before the courts – had a number of wives and to possible objections that in such situations the doctrine of “unity” which may have underpinned the policy of exempting spouses should have no real place in the modern law of criminal conspiracy. He accordingly proposed that, in such a context, the question of whether or not someone was a “spouse” for these purposes was essentially a qualitative one: and a jury should in each such case be left, on the evidence, to assess whether the nature of the relationship was such as to give rise, in the circumstances of each particular case, to the exception contained in s. 2(2) of the 1977 Act.

Mr Farrell, for the Crown, submitted that on the evidence there was no issue but that Dr Bala was domiciled in the United Kingdom in 1997. On that basis, by reason of s. 11 of the Matrimonial Causes Act 1973 the polygamous marriage entered into in Nigeria in 1997 was void in English law; and Mrs Bala-Tonglele thus was not to be recognised as a “spouse” of Dr Bala for the purposes of s 2(2) of the 1977 Act. In any event, he said, as an alternative argument, even if Dr Bala had not been domiciled in the United Kingdom at that time still Mrs Bala-Tonglele would not have been a “spouse”: s. 2(2) of the 1977 Act simply should not and does not extend to those who are party to a polygamous marriage in any circumstances.

By authority dating back to Victorian times it had been held, in the context of matrimonial proceedings, that parties to a polygamous marriage were not entitled as between themselves to any matrimonial relief under English law: see Hyde v Hyde (1860) LR 1 P & D 130. That view of things seems to have prevailed for very many years: albeit with some exceptions acknowledged, in particular for those who had entered into marriages which were not actually, but only potentially, polygamous: see Baindail v Baindail [1946] P. 122; Hussain v Hussain [1983] Fam. 26. In the present case, however, we are concerned with an actually polygamous marriage.

That general position, for the purposes of matrimonial law, has been changed by the provisions of the Matrimonial Causes Act 1973, in particular s. 42: illustrating, no doubt, the change in more modern attitudes. Of more immediate relevance for present purposes, however, are the provisions of s. 11 of the Matrimonial Causes Act 1973, (contained in the Part of the Act headed: “Divorce, Nullity and other Matrimonial Suits”). That provides as follows (in its amended form):

For the purposes of the criminal law the point arising in this case does not seem to have featured very much in the reported authorities. We were referred to Mawji v The Queen [1957] AC 126. The general rule of the English criminal law that husband and wife cannot be guilty of conspiracy was acknowledged in that case. The question arising in that case, however, was whether that doctrine applied to the Penal Code of Tanganyika, in circumstances where the two defendants were parties to a polygamous marriage valid under the law of Tanganyika.

In Mawji the reported arguments of counsel for the appellants (which among other things made reference to the Bible and also placed much emphasis on the antique principle of subordination), are notable for their emphasis in stating that the principle of exemption in cases of marital conspiracy should apply as much to polygamous marriages as to monogamous marriages – points in many respects made by Mr Burton himself. The arguments of counsel for the Crown, on the other hand, maintained that the principle that husband and wife cannot conspire with each other was limited to the case of monogamous, even if not necessarily Christian, marriages. Monogamy, in England, was “the essential tenet of a valid marriage.” The “fiction” of unity, it was said, only applied to monogamous marriages and the “anomalous” principle was not further to be extended. In the result the Judicial Committee did not resolve that issue. It stated (at page 135) that the marriages “primarily contemplated” by the common law principle in England were monogamous marriages. But in Tanganyika it applied to any husband and wife of a marriage valid under the law of Tanganyika: and that law included polygamous marriages. The Committee (at page 136) in terms expressed no opinion on the point had it arisen in England.

Altogether more in point is the decision of a constitution of this court in Junaid Khan [1987] 84 CAR 45. That was a case where the issue was whether a wife under an (actually) polygamous marriage, entered into under the rites of the Moslem religion, was competent to give evidence against her husband. The case was decided under common law principles relating to competence. The court was, however, referred to s. 11 of the Matrimonial Causes Act 1973. One of the accused, who was the husband, had throughout been domiciled in the United Kingdom: however, it seems that the second marriage may itself have been entered into in the United Kingdom and at all events the part of s. 11 of the 1973 Act cited at page 47 of the report was s. 11(b) only: no reference was made to s. 11(d). It was in that case at any rate conceded that “in English law generally” the lady was not the co-accused’s wife; but even so, it was argued, she was to be treated as his wife for the purposes of the common law principle that a wife is not a competent witness against her husband (page 47).

The court in Khan held that the lady was a competent witness. It said this (at page 50):

The question ultimately is one of the interpretation of the statutory provisions contained in s. 2(2) of the 1977 Act. In this respect, we have to have regard to the context being one of criminal law.

In Dicey, Morris and Collins on The Conflict of Laws (15^th ed.) it is stated, as Rule 79 under the chapter heading of Family Law – Marriage, that an actually polygamous marriage is void if either party is domiciled in England at the time of the marriage (s. 11(d) of the Matrimonial Causes Act 1973 being cited). For the purposes of the criminal law of conspiracy, that would at least accord also, in our opinion, with the general approach taken by the Court of Appeal in Khan (cited above). We consider that is the approach to be adopted in the present case.

It would follow, applying that approach and if Dr Bala was domiciled in the United Kingdom at the relevant time, that the exception contained in s. 2(2) of the 1977 Act does not apply. That is because, under English law, his marriage to Mrs Bala-Tonglele was void: it would not be recognised under English law as a valid marriage. Consequently they were not “spouses” for the purposes of the sub-section.

Mr Burton objected that such a conclusion could lead to absurdity: the polygamous marriage would be valid in Nigeria when celebrated in that country, would become void at initio when the parties came to the United Kingdom but would be valid again when they visited Nigeria. That in our view, is a misplaced objection. Under Nigerian law, as the Judge assumed it to be, the marriage will always have been and will always be – absent any divorce – treated as valid. Under English law it will always have been and will always be treated as void. That remains the position irrespective of which country the two happen to be in at any particular time.

As to Mr Sidhu’s arguments, we are not able to accept them. It has long been held that a person will be a spouse for these purposes even if, for example, separated from her husband for many years. Conversely, as Pearce and Suski establish (cases to be taken as binding on this court), the statutory language permits no deviation from its provisions so as to extend to those who are not at the relevant time in the legal relationship of husband and wife. That is conclusive; but in any event, we might add, it would be an invidious exercise for juries to be required to engage in an assessment of the “qualitative” relationship of a couple, married or otherwise, in any given case. Moreover, we apprehend that in some jurisdictions – of which Nigeria may be one – wives under a customary law marriage have a status different from a wife married under a “statutory” marriage. A “bright line” principle thus is needed for the purposes of s. 2(2) of the 1977 Act.

Accordingly we conclude that the reference to “spouse” in s. 2(2) of the 1977 Act is to be taken as a reference to a husband or wife (or, of course, civil partner) under a marriage, or civil partnership, recognised under English law. We apprehend that that will also be the position for s. 80 of the Police and Criminal Evidence Act 1984. We express no view, we should make clear, as to what the position might be in any other criminal context.

This conclusion leads to Mr Burton’s second objection: that the judge was not entitled to withdraw from the jury the issue of whether Dr Bala was indeed domiciled in the United Kingdom at the time of his polygamous marriage in 1997 to Mrs Bala-Tonglele. Mr Burton’s underlying premise, in advancing this point, was that, if Dr Bala was indeed domiciled in Nigeria in 1997, there is nothing under s. 11(d) of the Matrimonial Causes Act 1973 or otherwise to preclude the recognition in England of that marriage as valid.

Having considered the position we reject this second objection. In the particular circumstances of this case and of this trial as it unfolded we think that the Judge was entitled not to leave the issue of domicile to the jury.

We accept that the issue of domicile was not solely one of law. The question was one of mixed fact and law: a conclusion on domicile is a legal conclusion but it has to be based on the underlying facts.

Dr Bala’s domicile of origin was Nigeria. Such domicile is not lightly to be lost. The question was whether the United Kingdom had, by 1997, been acquired by him as his domicile of choice: which in turn primarily depended on his residence and his intention (or lack of it) of indefinite residence at the time.

There was certainly, in our view, an ample sufficiency of evidence to justify a conclusion that, on the prosecution case, Dr Bala had by the relevant time become domiciled in the United Kingdom. The Judge’s ruling in that regard at the close of the prosecution case was a proper one. Indeed Mr Burton did not really seek to challenge it. Mr Burton’s complaint was that the Judge thereafter treated the matter as settled and precluded him from advancing evidence and/or a case that Dr Bala was not domiciled in the United Kingdom at the time of the polygamous marriage. That may have been, in what was already a complicated case, a complicated matter on which to sum up to the jury and for the jury to consider. But the issue arose, he said, and it should have been left to the jury.

On the materials before us the procedural position is not altogether clear. The Judge’s ruling at the close of the prosecution case was directed at the submissions of no case to answer. It is true that in the passage which we have cited from her ruling the Judge stated that the marriage was void under English law. But she had previously stated that there was “clear evidence” on the “issue raised” that he was domiciled in the United Kingdom; and her later remark in that ruling is more naturally to be read as a conclusion based on the prosecution evidence thus far adduced and on her overall conclusion that there was a case to answer on Count 2 against Dr Bala and Mrs Bala-Tonglele. Given that Mr Burton thereafter asked in evidence numerous questions of Dr. Bala about his residence and activities both in the United Kingdom and in Nigeria and given that, before closing speeches, Mr Burton was still apparently seeking to regard the issue of domicile as a live issue on which he wished to address the jury, that seems to have been the perception at the time.

It is, however, the case that the Judge herself, when giving her further ruling before speeches, indicated that, so it would appear, she considered that she had already decided the point. Whatever her then understanding, that in our view did not impact on the fairness of the trial. The nature of the questioning of Dr Bala was evidently such as not to preclude him from giving answers on this matter (if he so chose); and it is evident, at all events, that the Judge plainly must have taken the view that nothing which she heard in the defence evidence had caused her to revise her previous opinion or to conclude that domicile was an issue required to be left to the jury. Overall, we see no sufficient reason to interfere with that assessment of a trial Judge who plainly was wholly on top of all the issues and evidence in the case.

If there be any lingering dissatisfaction on the part of Dr Bala on this point we would add that in any event we are satisfied that this conviction is safe. The subsequent naturalisation of Dr Bala in 2001 is not in itself conclusive as to domicile: nor can it in itself be conclusive of the position in 1997. But it is a striking point: and all the other evidence relating to Dr Bala’s residence and activities in the United Kingdom and relating to his other plans and intentions are wholly consistent, taken with all the other matters in evidence, with his having acquired a domicile in the United Kingdom by 1997.

We accordingly conclude that the convictions are safe. The appeals of Dr Bala and of Mrs Bala-Tonglele are dismissed.

We would nevertheless wish to make some observations about Mr Burton’s underlying premise: that if Dr Bala was domiciled in Nigeria in 1997, as was Mrs Bala-Tonglele, then the polygamous marriage – valid under the law of the place of its celebration, Nigeria – would be recognised as valid in English law and so would, on this argument, mean that each was a “spouse” for the purposes of s. 2(2) of the 1977 Act.

This is a difficult point.

The implicit corollary of s. 11(d) of the Matrimonial Causes Act 1973 is that where neither party is domiciled in the United Kingdom at the time of the relevant polygamous marriage, valid under the law of the place of celebration, then that marriage – assuming no other incapacity – will be recognised as valid in English law.

So much is stated in Rule 80 of Dicey, Morris and Collins, with the qualification “unless there is some strong reason to the contrary.” At paragraph 17-199 of that edition this is stated:

Mr Burton did seek to renew grounds of appeal challenging the conviction of Dr Bala on Counts 2 and 4. We can take the points shortly.

One argument was to the effect that, as Mrs Bala-Tonglele was not a British citizen between 10 February 2003 and 30 January 2008, any acts committed by her outside the United Kingdom could not be contrary to the provisions of s. 25 of the Immigration Act 1971, under its then wording, as a matter of substantive offending. In our view, however, in the context of a count of conspiracy, and having regard to the evidence, the judge was justified in rejecting this point as she did.

We did not understand Mr Burton to pursue the other grounds rejected by the Single Judge. In any event, we conclude that the Single Judge was right to reject them for the reasons he gave.

We can take the renewed challenges to the safety of the convictions at the second trial rather more shortly.

There is, we have to say, an air of complete unreality about the principal ground raised. It is said that the Judge should have allowed the acquittals of the co-accused – as potential co-conspirators – at the first trial to have been adduced in evidence at the second trial. But in the result each of these three applicants was convicted at the second trial. The jury must have concluded that (as alleged) they had at any rate conspired with each other. That suffices for a conviction. To say that the jury may have concluded that each had conspired only with one (or more) of the acquitted co-accused is, in the circumstances of this case and as a matter of reality, fanciful: the more so when, as the Judge herself recorded, the prosecution had elected to conduct the trial without any invocation of the involvement of those co-accused as co-conspirators.

That of itself disinclines us to interfere. But there are other objections.

An acquittal of an accused at a previous trial is ordinarily irrelevant at a subsequent trial. The reason is obvious. The acquittal – which is not to be taken as a pronouncement of innocence – is to be taken as representing the opinion of one jury based on an assessment of the evidence which that jury has heard. The jury at any subsequent trial cannot speculate as to what the position was at the first trial; and any satellite litigation at the second trial is to be avoided. The jury at the second trial is concerned only in assessing the evidence placed before it at the second trial.

It was submitted, nevertheless, to the Judge, and was submitted before us, that evidence of such acquittals should have been permitted as a matter of “fairness”. In Austin and Tavakolinia [2012] 1 CAR 320 it was held that the previous acquittal at an earlier trial of a co-accused alleged to be party to a conspiracy was no bar to the Crown, at a retrial, alleging that that co-accused had indeed been party to the conspiracy. It was held that no unfairness thereby arose. In Cook [2012] 1 CAR 23, the same position was taken. In addition, Hooper LJ, giving the judgment of the court, went on to indicate that at the second trial the prosecution were entitled to present a case that the others (who had previously been acquitted) were “probably involved in the conspiracy” and that the jury could take into account their probable role (if they so concluded) in the conspiracy: see at paragraphs 20 and 23. To do so would not be inconsistent with the prior acquittals.

In our view, and agreeing with the Judge, considerations of “fairness” did not, in the circumstances of this case, require the evidence of the previous acquittals to be adduced. We accept that there may be cases where, exceptionally, evidence of a previous acquittal is properly adduced. The case of Terry [2005] 2 CAR 7 was cited to us as an illustration of that. But the present was not such a case. The Judge in the course of her thorough ruling said this at paragraphs 20, 21 and 22:

In the circumstances of this case, we agree with that conclusion

We pressed the applicants in argument to identify the point on which the previous acquittals might be relevant evidence. They rather struggled to do so. Ultimately, aside from vague references to the existence of the conspiracy and its scope (to which the acquittals would in truth have been irrelevant) it really came down to saying that the acquittals related to an issue of whether the applicants had conspired not with each other but with the acquitted defendants. But that was not the way the Crown put its case at trial and, as we have said, was fanciful.

The reality was that – as exemplified by Ms Hollis’s argument – the point sought to be made was that the applicants (or at any rate Mr Ekwugha and Mrs Bala-Tonglele) had, so it was asserted, a much less prominent and hands-on role than those, including Onuoha, the Human Resources director, who had previously been acquitted and therefore so much the more, it was said, should these applicants be acquitted. We very much doubt if that would have been a permissible approach. In any event, to the extent that the applicants themselves in their cases at the second trial advanced the asserted close involvement of others, including the acquitted co-accused, the fact that no evidence of the acquittals was before the jury permitted the applicants to submit to the jury (as recorded by the Judge in the summing-up) that those others were “all over the case like a rash.” Moreover, just what the actual roles of the acquitted co-accused were depended on evidence, not assertion.

This point is devoid of substance. The Judge was right to reject it, as was the Single Judge.

We should however add one observation about the case of Cook. (It was a consideration of that case, we gather, which impacted on the Crown’s changing its stance as set out in the pre-trial Notes.) We think, with respect, that some of the comments in that case, in particular those made at paragraphs 20 and 23 of the judgment, may over-complicate things.

It is, surely, a recipe for potential confusion and muddle for a jury, in a criminal conspiracy trial, to be told of what the position is said “probably” to be. The position should be straightforward. If the prosecution case at a second trial materially depends on the proposition that the defendant (A) has conspired with another (B), whether or not B has been acquitted on the like count at a previous trial, then the prosecution must at the second trial prove to the criminal standard that A conspired with B. There is, in the ordinary way, no bar to the matter proceeding on such basis: see s.5 (8) of the 1977 Act and Austin and Tavakolinia. (Rather oddly, the provisions of s.5 (8) seem not to be mentioned in Cook.)

However, there may well be cases – and the present is one – where the prosecution do not need to prove that B was a conspirator (even though the prosecution’s position remains that he was): simply because the prosecution may be able to point to others in the conspiracy (C and D etc.). In such circumstances, the jury will not need to be concerned with whether or not a case is established against B. It would then be potentially misleading for the jury to be asked to take into account any “probable role” of B in deciding whether the case is proved against A or against C or D as the case may be.

In those exceptional cases where a trial judge decides that it is necessary, in the interests of justice and fairness, for the evidence of a previous acquittal of an alleged co-conspirator to be adduced, there thus should, we suggest, normally be no reference to the “probabilities” of the situation. The Judge should, in the summing-up, concisely explain why the evidence of the previous acquittal has been adduced and what its potential relevance is (as part of the jury’s overall consideration of the evidence): concisely and precisely identifying the position of the defence and of the prosecution on the matter. The Judge may also, depending on the circumstances of the case, think it appropriate briefly to remind the jury at the second trial that the decision of the jury at the first trial was a decision of that jury based on the evidence adduced at the first trial; and that what the second jury must focus on is the evidence produced before them at the second trial. It may also be appropriate in some cases to remind the jury not to speculate about events at the first trial.

To revert to the present case, as we have said there was no arguable error in the Judge’s conclusion. Thus this ground fails.

Ms Hollis did briefly pursue other grounds. She complained that the Judge in the summing-up misstated the position with regard to Mr Ekwugha’s connections under two different names with two particular addresses having a similar street name. To the extent there was an error, that was expressly corrected by the Judge in the course of the summing-up at the invitation of counsel: and there is no reason to think that the jury were misled.

Mr Hollis also more generally complained that the summing-up was unbalanced, saying that the defence case of Mr Ekwugha was dealt with dismissively and that the actual defence was summed up in just eight lines of the summing-up. Given that Mr Ekwugha answered no questions in interview and gave no evidence at trial, this point can be treated with a degree of circumspection. In essence, he had put the Crown to proof. To the extent that Mr Ekwugha, through counsel, was seeking at trial to make the point that others, notably Onuoha and Fernandes, were far more closely involved in personnel issues at the Armour Group than Mr Ekwugha the Judge frequently made such points in reviewing the evidence and documentation adduced by the Crown. There is no arguable substance in this complaint. We have reviewed the summing-up: it was fair and balanced.

The appeals of Dr Bala and Mrs Bala-Tonglele fail and are dismissed. The renewed applications of Dr Bala, Mrs Bala-Tonglele and Mr Ekwugha are also dismissed.