DATES:  1980 Oct. 31; Nov. 14

 

JUDGES:  Donaldson L.J. and Forbes J.

 

COUNSEL:  David Turner-Samuels Q.C. and Owen Davies for the applicant.

Simon D. Brown for the Secretary of State.

 

SOLICITORS:  Seifert, Sedley & Co.; Treasury Solicitor.

 

APPLICATION for judicial review.

 

Reg. v. Chief National Insurance Commissioner, Ex parte Connor [1981] Q.B. 758, D.C. applied.

 

Beresford v. Royal Insurance Co. Ltd. [1938] A.C. 586, H.L.(E.) considered.

 

Applicant Astrid Huberta Isolde Marie Luise Hildegard Proll or Puttick, citizen of the Federal Republic of Germany, applied for judicial review and relief of an order of mandamus directed to the Secretary of State for the Home Department requiring him to register her as a citizen of the United Kingdom and Colonies under section 6 (2) of the British Nationality Act 1948 on the basis that her marriage to Robin Puttick, a British subject, on January 22, 1975, at Stepney Register Office, London, was valid and thus entitled her to such registration as of right.

 

November 14. The following judgments were read.

 

DONALDSON L.J.  The applicant, Astrid Proll, wished to change her citizenship from that of Germany to that of the United Kingdom. In May 1971 she had been arrested in Germany on a number of serious criminal charges. In February 1974, after her trial had begun and been adjourned because of her ill-health, she was released on bail. In breach of the conditions of that bail, she went to Italy and then, in October 1974, came to this country. For obvious reasons she did not use her own name. Instead she bought a passport in the name of Senta Gretel Sauerbier. Using that passport she was given permission to enter and stay in this country until February 6, 1975.

 

One way of achieving United Kingdom citizenship is by marriage to a United Kingdom citizen, followed by registration under section 6 of  [*771]  the British Nationality Act 1948. In Astrid Proll’s situation this was probably the only possible way of achieving her object. Accordingly she determined to marry Robin Puttick, a bachelor with whom she was acquainted. Astrid Proll was a spinster and, in the traditional sense, there was no “just impediment” to the marriage. There were, however, several obstacles, all of which arose out of the fact that she had entered this country using Frau Sauerbier’s passport. If Fraulein Proll were not to risk identification and deportation she had to be married as Frau Sauerbier. Accordingly, the licence to marry had to be obtained in that name and she had to satisfy the Registrar General that Frau Sauerbier’s previous marriage had been dissolved. All this involved forgery and perjury, but the obstacles were surmounted and on January 22, 1975, Astrid Proll went through a ceremony of marriage with Robin Puttick at a register office.

 

The next move was to obtain registration as a citizen of the United Kingdom and Colonies. Shortly after the ceremony Mrs. Senta Puttick, as Astrid Proll then called herself, made the necessary application to the Secretary of State. She used “Senta” as her first name, because that was the first name of Frau Sauerbier, whose identity she was still using. I need say no more about this application than that it was withdrawn before the Secretary of State had reached any decision and that, if it had been granted, the registration and consequent citizenship of the United Kingdom and Colonies could thereafter have been cancelled by the Secretary of State under section 20 (2) of the Act upon the grounds that the registration had been obtained by means of fraud, false representation and the concealment of material facts.

 

There matters remained until October 1978, by which time the Federal German authorities had identified Mrs. Puttick as Astrid Proll and were taking steps to secure her extradition. Mrs. Puttick then made a new application for registration under section 6 (2) of the Act in the name of Astrid Proll. The Secretary of State refused to register her as a citizen of this country and she sought the leave of this court to apply for judicial review of his decision. Leave was refused and Mrs. Puttick appealed to the Court of Appeal. Leave was again refused, but it was suggested that the appropriate course was for Mrs. Puttick to seek a declaration of the validity of her marriage pursuant to section 45 of the Matrimonial Causes Act 1973.

 

Mrs. Puttick adopted this course and the matter was heard and determined by Sir George Baker P. His judgment is reported in Puttick v. Attorney-General [1980] Fam. 1. Suffice it to say that Sir George Baker P. found that Mrs. Puttick’s marriage to Robin Puttick was a valid marriage, but refused to make the declaration upon two grounds. The first was that Mrs. Puttick was not domiciled in the United Kingdom, this being an essential prerequisite to the right to make application under section 45 (1). The other was that, under section 45 (5), the court had a discretion whether to make such a declaration and that, in the circumstances of this application, it was inappropriate to do so.

 

This judgment was delivered on May 8, 1979, and on May 30 the Secretary of State affirmed his refusal to register Mrs. Puttick as a  [*772]  citizen of the United Kingdom and Colonies unless the court otherwise directed. Hence the present application for an order requiring the Secretary of State so to register Mrs. Puttick.

 

Let me make two matters clear at once. First, in the light of the reasons for the judgment of Sir George Baker P., the Secretary of State now accepts as a matter of law and fact that Mrs. Puttick’s marriage was valid. Second, we are not concerned with the offences with which Mrs. Puttick was charged before the German courts or with such of them as led to convictions. She was sentenced to a term of imprisonment, that term has been served and it is not suggested that these are relevant matters for our consideration.

 

Mr. Turner-Samuels, who has appeared for Mrs. Puttick, has no difficulty in bringing her within the express terms of section 6 (2) of the Act (amended by section 34 of and Schedule 6 to the Immigration Act 1971) for it is in the following terms:

 

“... a woman who has been married to a citizen of the United Kingdom and Colonies shall be entitled, on making application therefor to the Secretary of State in the prescribed manner, to be registered as a citizen of the United Kingdom and Colonies, whether or not she is of full age and capacity.”

 

Mrs. Puttick has been married to such a citizen and she has made application in the prescribed manner.

 

Mr. Simon Brown, who has appeared for the Secretary of State, submits that in an exceptional case the Secretary of State is entitled to refuse registration upon grounds of public policy and that this is such a case. He further submits that, even if the Secretary of State is not justified in refusing registration, this court is entitled and perhaps bound on grounds of public policy to refuse to order him to perform his statutory duty under the Act. It is these submissions which lie at the heart of this dispute and which I must now consider.

 

I doubt whether this second submission can be justified. It is true, of course, that the remedy of judicial review is discretionary, but any considerations of public policy which inhibit the courts from requiring the Secretary of State to perform a duty imposed by Parliament must equally provide some unexpressed limitation upon the apparent extent of that duty. To put it in another way, it would be more than a little surprising if Parliament intended to legislate in a manner inconsistent with the principles of public policy applied by the courts without making this intention clear by the use, for example, of such a time hallowed formula as “any rule of law to the contrary notwithstanding.”

 

In my judgment, the crucial issue is whether Mr. Brown’s first submission is correct. In other words, what, in the circumstances of Mrs. Puttick’s application, is the duty of the Secretary of State under section 6 (2) of the Act?

 

There is much authority on the circumstances in which the courts will refuse to enforce contractual rights upon grounds of public policy, but I doubt whether this is directly applicable where the right is conferred and the concomitant duty is imposed by statute. Until this year, the nearest approach to grappling with that problem seems to  [*773]  have been the judgment of Clawson J. in In re Sigsworth [1935] Ch. 89. There it was held that a sane murderer could not take any benefit under trusts declared by section 46 of the Administration of Estates Act 1925 of the residuary estate of his intestate victim. This decision is not binding on this court and may in any event be distinguishable in that the statute created private rights without imposing any public duty.

          

          

 

The problem was, however, directly faced by this court in Reg. v. Chief National Insurance Commissioner, Ex parte Connor [1981] Q.B. 758. Mrs. Connor had been acquitted of the murder of her husband, but found guilty of his manslaughter. She applied for a widow’s allowance under the Social Security Act 1975 but this was refused by the Chief National Insurance Commissioner upon the ground that it was contrary to public policy that she should benefit from her own crime.

 

Counsel appearing for Mrs. Connor made two main submissions. The first could be applied mutatis mutandis to the present case. He submitted that the Social Security Act 1975 was a self-contained modern statute to which rules of public policy should not be applied, particularly since it contained express provisions disqualifying persons from obtaining benefit in specified circumstances. Mrs. Connor’s claim fell fairly and squarely within the wording of section 24 which created an absolute entitlement and was not affected by any disqualifying provisions. The same submission can be, and is, made in the present case. Mrs. Puttick’s claim to registration as a citizen of the United Kingdom and Colonies falls fairly and squarely within the wording of section 6 (2) of the Act of 1948 and, in the true and accurate form in which it is now presented, is not affected by any disqualifying provisions such as those contained in section 20. Strictly speaking those provisions do not disqualify, but in as much as they entitle the Secretary of State to deprive a registered citizen of citizenship, they would justify him in refusing registration in circumstances in which he would revoke any citizenship which was achieved by registration.

 

Lord Lane C.J., in a judgment with which Griffiths and Webster JJ. agreed, rejected this submission, saying, at p. 417:

 

“I do not accept that submission. The fact that there is no specific mention in the Act of disentitlement so far as the widow is concerned if she were to commit this sort of offence and so become a widow is merely an indication, as I see it, that the draftsman realised perfectly well that he was drawing this Act against the background of the law as it stood at the time.”

 

This decision provides authority for the proposition that statutory duties which are in terms absolute may nevertheless be subject to implied limitations based upon principles of public policy accepted by the courts at the time when the Act is passed.

 

The second submission made on behalf of Mrs. Connor was that it is not every type of crime which operates so as to cause the National Insurance Commissioner (in that case) and the courts to reject a claim. On this Lord Lane C.J. said, at pp. 417-418:  [*774] 

 

“I, for my part, would agree with that. Indeed there are dicta, particularly in Gray v. Barr [1971] 2 Q.B. 554, which support that proposition, and in particular the judgment of Salmon L.J., at p. 581: ‘Although public policy is rightly regarded as an unruly steed which should be cautiously ridden, I am confident that public policy undoubtedly requires that no one who threatens unlawful violence with a loaded gun’ – that was the case in Gray v. Barr – ‘should be allowed to enforce a claim for indemnity against any liability he may incur as a result of having so acted. I do not intend to lay down any wider proposition. In particular, I am not deciding that a man who has committed manslaughter would, in any circumstances, be prevented from enforcing a contract of indemnity in respect of any liability he may have incurred for causing death or from inheriting under a will or upon the intestacy of anyone whom he has killed. Manslaughter is a crime which varies infinitely in its seriousness. It may come very near to murder or amount to little more than inadvertence, although in the latter class of case the jury only rarely convicts.’

 

“I would respectfully agree with that dictum, and I would agree that in each case it is not the label which the law applies to the crime which has been committed but the nature of the crime itself which in the end will dictate whether public policy demands the court to drive the applicant from the seat of justice. Where that line is to be drawn may be a difficult matter to decide, but what this court has to determine is whether in the present case what this applicant did was sufficient to disentitle her to her remedy.

 

“The judgment of Lord Denning M.R., in the same case, at pp. 568-569, does provide some assistance in determining where to draw the line. He says: ‘Does this manslaughter mean that, as a matter of public policy, Mr. Barr is not to be allowed to recover on the policy? In the category of manslaughter which is called ơmotor manslaughter,” it is settled beyond question that the insured is entitled to recover: see Tinline v. White Cross Insurance Association Ltd. [1921] 3 K.B. 327; James v. British General Insurance Co. Ltd. [1927] 2 K.B. 311. But, in the category which is here in question, it is different. If his conduct is wilful and culpable, he is not entitled to recover; see Hardy v. Motor Insurer’s Bureau [1964] 2 Q.B. 745. I agree with the judge when he said [1970] 2 Q.B. 626, 640: ơThe logical test, in my judgment, is whether the person seeking the indemnity was guilty of deliberate, intentional and unlawful violence, or threats of violence. If he was, and death resulted therefrom, then, however unintended the final death of the victim may have been, the court should not entertain the claim for indemnity.Ƣ’

 

ơOne turns then to see what it was that happened here. On the verdict of the jury it is plain that this woman’s act was a deliberate, conscious and intentional act. She was holding the knife in her hand and she deliberately thrust it into her husband’s chest. It is not the same as discharging two barrels of a shotgun; no two situations will ever be the same. But, speaking for myself,  [*775]  I can see no distinction in principle between the situation in Gray v. Barr [1971] 2 Q.B. 554, which was sufficient to disentitle the plaintiff to recover, and the situation here, which also to my mind disentitles the applicant to recover.”

 

This is not a homicide case and, to that extent, such authorities as Cleaver v. Mutual Reserve Fund Life Association [1892] 1 Q.B. 147 and Beresford v. Royal Insurance Co. Ltd. [1938] A.C. 586 are not directly applicable. However, it is noteworthy that Lord Atkin, with whom Lord Thankerton and Lord Russell of Killowen agreed, did not limit the principle to homicide cases. He quoted with approval, at p. 596, the general statement of law by Fry L.J. in Cleaver’s case [1892] 1 Q.B. 147, 156:

 

“It appears to me that no system of jurisprudence can with reason include amongst the rights which it enforces rights directly resulting to the person asserting them from the crime of that person.Ƣ

 

Furthermore, Lord Atkin supported this general statement by reference to Amicable Society for a Perpetual Life Assurance v. Bolland (1830) 4 Bli.N.S. 194 in which the claim owed its existence to forgery and the execution of the life assured for that crime. Later in his speech, Lord Atkin stated the principle [1938] A.C. 586, 598:

 

“I think that the principle is that a man is not to be allowed to have recourse to a court of justice to claim a benefit from his crime whether under a contract or a gift. No doubt the rule pays regard to the fact that to hold otherwise would in some cases offer an inducement to crime or remove a restraint to crime, and that its effect is to act as a deterrent to crime. But apart from these considerations the absolute rule is that the courts will not recognise a benefit accruing to a criminal from his crime.”

 

Lord Macmillan in a separate speech which led to the same conclusion accepted that Beresford’s claim gave rise to a conflict of principles of public policy. On the one hand it was an accepted principle that persons who entered into contractual arrangements should be required to fulfil them. On the other, it was an accepted principle that no court ought to assist a criminal to derive benefit from his crime.

 

For my part, I think that when the British Nationality Act 1948 was enacted it was well established that public policy required the courts to refuse to assist a criminal to benefit from his crime at least in serious cases and that Parliament must be deemed to have been aware of this. Against this background, and bearing in mind additionally that citizenship is not only a matter of private right but also of public status and concern, in my judgment, Parliament can never have intended that a woman should be entitled to claim registration as a citizen of the United Kingdom and Colonies on the basis of a marriage achieved only by the commission of serious crime. In this case Mrs. Puttick’s impersonation of Frau Sauerbier and the commission of the crime of perjury and forgery formed the foundation of her marriage to Robin Puttick and, in my judgment, disentitled her to rely upon the right which she  [*776]  would otherwise have had to claim registration as a citizen of the United Kingdom and Colonies. I consider that the Secretary of State was fully justified in refusing Mrs. Puttick’s application for registration and accordingly she is not entitled to the relief for which she applies.

 

I would dismiss the application.

 

FORBES J.  Astrid Puttick asks this court to order the Home Secretary to register her as a citizen of the United Kingdom and Colonies under section 6 (2) of the British Nationality Act 1948. This subsection is, materially, in these terms:

 

“... a woman who has been married to a citizen of the United Kingdom and Colonies shall be entitled, on making application therefor to the Secretary of State in the prescribed manner, to be registered as a citizen of the United Kingdom and Colonies ...”

 

On January 22, 1975, she went through a form of marriage before a registrar, as Donaldson L.J. has related. She had assumed the identity of Senta Sauerbier, an actual person who lived in West Berlin.

 

Mr. Turner-Samuels on her behalf points out that the terms of the section are mandatory and says that, as the Home Secretary now accepts that her marriage was valid, he has no option but to register her as a citizen.

 

Mr. Simon Brown for the Home Secretary argues that he is not bound to register her for two reasons, each of them concerned with the principle enshrined in the maxim ex turpi causa non oritur actio. The first is that however mandatory may be the terms of the statute no person is entitled to any rights under it if the purported entitlement has been procured by fraud; and the second is that the prerogative remedy of mandamus is discretionary and the court should not allow an order to go in a case where the applicant has to rely on an entitlement obtained by fraud.

 

The main authorities relied on are the passage from the judgment of Fry L.J. in Cleaver’s case [1892] 1 Q.B. 147, 156 to which Donaldson L.J. has referred and Reg. v. Chief National Insurance Commissioner, Ex parte Connor [1981] Q.B. 758, in this court. For my part, I think it important to distinguish three separate arguments: (1) that where a person, or body, is charged by statute with a duty involving the recognition of some right, however mandatory the terms imposing that duty, that person is not bound to recognise the right if the entitlement to it has been obtained criminaliter; (2) that no court will allow itself to be used to enforce rights the entitlement to which has been illegally obtained; (3) that the remedy of mandamus is a discretionary remedy.

 

Of these I do not think the last is applicable here. Unless there were some other principle involved as well, I do not think this court would refuse to order the carrying out of a clearly mandatory duty arising under a statute. The discretion of the court in this field is ordinarily exercised in relation to delay or the existence of alternative remedies and other matters of that kind, but it is important to distinguish all three principles.  [*777] 

 

If the first of them is right, the Home Secretary himself can say that, despite the mandatory terms of the statute, he is not bound to entertain this application for registration. No doubt his action, or refusal to act, is reviewable in this court in accordance with the usual principles involved in judicial review, but, subject to that, on this argument the initial decision is the Home Secretary’s. If the first is wrong, then the Home Secretary can only rely on the second argument and ask this court not to use its powers to order him to register.

 

Neither of these two propositions is, as I understand it, seriously challenged by Mr. Turner-Samuels. Instead he argues, on a number of grounds, that the principles do not apply in this case. His first point is that the illegality complained of must be the direct source of the relief sought. Thus he argues that the illegality had nothing to do with the ceremony itself. Robin Puttick and Astrid Proll were in fact the people who went through this ceremony. They were in fact married and there is no illegality in the marriage itself, the validity of which is now accepted by the Home Secretary. His second point is that the entitlement arises out of status; and his third that the applicant did not obtain something to which she was not entitled; she was at all times entitled to be married to Robin Puttick.

 

I think the answer to all these arguments is the same. The words of section 6 (2) show that the entitlement accrues to a woman who “has been married” to a United Kingdom citizen. These words indicate to my mind that it is the fact of going through the marriage ceremony, and, be it said, the status which that produces, which creates the entitlement. But here the registrar who performed the ceremony was fraudulently misled into believing that he was marrying Robin Puttick to someone called Sauerbier, a divorced person of whose capacity to contract a second marriage he had satisfied himself, and whose father was called Eric Schulz, a machine engineer. That deception was persisted in throughout the ceremony and indeed afterwards when the applicant signed the marriage certificate as Senta Sauerbier. Further, when making her application in the prescribed manner to the Home Secretary for registration she produced, as she had to, this marriage certificate with its fraudulent entries and forged signature, and had to explain in a covering letter the extent of her criminal activities. I therefore have no doubt that it was her fraud and forgery which directly obtained for her the entitlement she now seeks to enforce and that she cannot claim that entitlement without relying on her own criminality. I would reject Mr. Turner-Samuels’ submissions.

 

To return to the two main arguments which I earlier set out, I have no doubt that Reg. v. Chief National Insurance Commissioner, Ex parte Connor [1981] Q.B. 758 is conclusive of the first: the Home Secretary, like the insurance commissioner, is not bound to give effect to an entitlement directly obtained by criminal activity. On Ex parte Connor, as in Gray v. Barr [1971] 2 Q.B. 554, it was necessary to consider in addition the degree of criminality involved, but this was due to the fact that there the entitlement arose on a death. That is not the case here and it is therefore unnecessary to be diverted in argument by the niceties of the law of homicide. It is sufficient to consider whether  [*778]  the entitlement was directly obtained by criminal activity. I conclude that it was and that therefore the Home Secretary, despite the mandatory terms of the statute, is competent to refuse to register the applicant as a citizen. No valid reason for reviewing that decision as a decision has been shown.

 

The second of the arguments depends on the judgment of Fry L.J. in Cleaver v. Mutual Reserve Fund Life Association [1892] 1 Q.B. 147, approved as it has been in a number of subsequent decisions. But in view of the conclusion I have come to on the first proposition I think it unnecessary to consider the second further.

 

I, too, would dismiss the application.

 

Application dismissed.

 

Legal aid taxation.