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Parliamentary Archives,
HL/PO/JU/18/251

Regina v. R (Appellant) (On Appeal from the Court of Appeal

(Criminal Division))

JUDGMENT

Die Mercurii 23 Octobris 1991

Upon Report from the Appellate Committee to whom was
referred the Cause Regina against R, That the Committee had
heard Counsel on Monday the 1st day of July last, upon the
Petition and Appeal of Christopher Rawlinson of Norman House,
Ashleigh Road, Leicester, praying that the matter of the Order
set forth in the Schedule thereto, namely an Order of Her
Majesty's Court of Appeal (Criminal Division) of the 14th day
of March 1991, might be reviewed before Her Majesty the Queen
in Her Court of Parliament and that the said Order might be
reversed, varied or altered or that the Petitioners might have
such other relief in the premises as to Her Majesty the Queen
in Her Court of Parliament might seem meet; as upon the case
of the Director of Public Prosecutions (on behalf of Her
Majesty) lodged in answer to the said Appeal; and due
consideration had this day of what was offered on either side
in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and
Temporal in the Court of Parliament of Her Majesty the Queen
assembled, That the said Order of Her Majesty's Court of
Appeal (Criminal Division) of the 14th day of March 1991
complained of in the said Appeal be, and the same is hereby,
Affirmed and that the said Petition and Appeal be, and the
same is hereby, dismissed this House.

Cler: Parliamentor:

Judgment: 23.10.91

HOUSE OF LORDS

REGINA

v.

R.

(APPELLANT)

(ON APPEAL FROM THE COURT OF APPEAL
(CRIMINAL DIVISION))

Lord Keith of Kinkel

Lord Brandon of Oakbrook

Lord Griffiths

Lord Ackner

Lord Lowry




LORD KEITH OF KINKEL

My Lords,

In this appeal to the House with leave of the Court of
Appeal (Criminal Division) that court has certified the following
point of law of general public importance as being involved in its
decision, namely:

"Is a husband criminally liable for raping his wife?"

The appeal arises out of the appellant's conviction at
Leicester Crown Court on 30 July 1990, upon his pleas of guilty,
of attempted rape and of assault occasioning actual bodily harm.
The alleged victim in respect of each offence was the appellant's
wife. The circumstances of the case were these. The appellant
married his wife in August 1984 and they had one son born in
1985. On 11 November 1987 the couple separated for about two
weeks but resumed cohabitation at the end of that period. On 21
October 1989 the wife left the matrimonial home with the son and
went to live with her parents. She had previously consulted
solicitors about matrimonial problems, and she left at the
matrimonial home a letter for the appellant informing him that
she intended to petition for divorce. On 23 October 1989 the
appellant spoke to his wife on the telephone indicating that it was
his intention also to see about a divorce. No divorce proceedings
had, however, been instituted before the events which gave rise to
the charges against the appellant. About 9 p.m. on 12 November
1989 the appellant forced his way into the house of his wife's
parents, who were out at the time, and attempted to have sexual



intercourse with her against her will. In the course of doing so he
assaulted her by squeezing her neck with both hands. The
appellant was arrested and interviewed by police officers. He
admitted responsibility for what had happened. On 3 May 1990 a
decree nisi of divorce was made absolute.

The appellant was charged on an indictment containing two
counts, the first being rape and the second being assault
occasioning actual bodily harm. When he appeared before Owen J.
at Leicester Crown Court on 30 July 1990 it was submitted to the
judge on his behalf that a husband could not in law be guilty as a
principal of the offence of raping his own wife. Owen J. rejected
that proposition as being capable of exonerating the appellant in
the circumstances of the case. His ground for doing so was that,
assuming an implicit general consent to sexual intercourse by a
wife on marriage to her husband, that consent was capable of
being withdrawn by agreement of the parties or by the wife
unilaterally removing herself from cohabitation and clearly
indicating that consent to sexual intercourse had been terminated.
On the facts appearing from the depositions either the first or the
second of these sets of circumstances prevailed. Following the
judge's ruling the appellant pleaded guilty to attempted rape and
to the assault charged. He was sentenced to three years'
imprisonment on the former count and to eighteen months
imprisonment on the latter.

The appellant appealed to the Court of Appeal (Criminal
Division) on the ground that Owen J.:

"made a wrong decision in law in ruling that a man may
rape his wife when the consent to intercourse which his
wife gives in entering the contract of marriage has been
revoked neither by order of a court nor by agreement
between the parties."

On 14 March 1990 that Court (Lord Lane C.J., Sir Stephen Brown
P., Watkins, Neill and Russell L.JJ.) delivered a reserved judgment
dismissing the appeal but certifying the question of general public
importance set out above and granting leave to appeal to your
Lordships' House, which the appellant now does.

Sir Matthew Hale, in his History of the Pleas of the Crown
(1736) vol. 1, ch. 58, p. 629, wrote:

"But the husband cannot be guilty of a rape committed by
himself upon his lawful wife, for by their mutual
matrimonial consent and contract the wife hath given
herself up in this kind unto her husband which she cannot
retract."

There is no similar statement in the works of any earlier English
commentator. In 1803 East, in his Treatise of the Pleas of the
Crown, Vol. 1 ch. X, p. 446, wrote:

"... a husband cannot by law be guilty of ravishing his
wife, on account of the matrimonial consent which she
cannot retract."

- 2 -

In the first (1822) edition of Archbold, A Summary of the Law
Relative to Pleading and Evidence in Criminal Cases, at p. 259 it
was stated, after a reference to Hale, "A husband also cannot be
guilty of a rape upon his wife."

For over 150 years after the publication of Hale's work
there appears to have been no reported case in which judicial
consideration was given to his proposition. The first such case
was Reg. v. Clarence (1888) 22 QBD 23, to which I shall refer
later. It may be taken that the proposition was generally regarded
as an accurate statement of the common law of England. The
common law is, however, capable of evolving in the light of
changing social, economic and cultural developments. Hale's
proposition reflected the state of affairs in these respects at the
time it was enunciated. Since then the status of women, and
particularly of married women, has changed out of all recognition
in various ways which are very familiar and upon which it is
unnecessary to go into detail. Apart from property matters and
the availability of matrimonial remedies, one of the most
important changes is that marriage is in modern times regarded as
a partnership of equals, and no longer one in which the wife must
be the subservient chattel of the husband. Hale's proposition
involves that by marriage a wife gives her irrevocable consent to
sexual intercourse with her husband under all circumstances and
irrespective of the state of her health or how she happens to be
feeling at the time. In modern times any reasonable person must
regard that conception as quite unacceptable.

In S. v. H.M. Advocate 1989 S.L.T. 469 the High Court of
Justiciary in Scotland recently considered the supposed marital
exemption in rape in that country. In two earlier cases, H.M.
Advocate v. Duffy 1983 S.L.T. 7 and H.M. Advocate v. Paxton
1985 S.L.T. 96 it had been held by single judges that the
exemption did not apply where the parties to the marriage were
not cohabiting. The High Court held that the exemption, if it had
ever been part of the law of Scotland, was no longer so. The
principal authority for the exemption was to be found in Baron
Hume's Criminal Law of Scotland, first published in 1797. The
same statement appeared in each edition up to the fourth, by Bell,
in 1844. At p. 306 of vol. 1 of that edition, dealing with art and
part guilt of abduction and rape, it was said:

"This is true without exception even of the husband of the
woman; who although he cannot himself commit a rape on
his own wife, who has surrendered her person to him in that
sort, may however be accessory to that crime . . .
committed on her by another."

It seems likely that this pronouncement consciously followed Hale.

The Lord Justice-General, Lord Emslie, who delivered the
judgment of the court, expressed doubt whether Hume's view
accurately represented the law of Scotland even at the time when
it was expressed and continued, at p. 473:

"We say no more on this matter which was not the subject
of debate before us, because we are satisfied that the
Solicitor-General was well founded in his contention that
whether or not the reason for the husband's immunity given



- 3 -

by Hume was a good one in the 18th and early 19th
senturies, it has since disappeared altogether. Whatever
Hume meant to encompass in the concept of a wife's
'surrender of her person' to her husband 'in that sort' the
concept is to be understood against the background of the
status of women and the position of a married woman at
the time when he wrote. Then, no doubt, a married woman
could be said to have subjected herself to her husband's
dominion in all things. She was required to obey him in all
things. Leaving out of account the absence of rights of
property, a wife's freedoms were virtually non-existent, and
she had in particular no right whatever to interfere in her
husband's control over the lives and upbringing of any
children of the marriage.

"By the second half of the 20th century, however, the status
of women, and the status of a married woman, in our law
have changed quite dramatically. A husband and wife are
now for ail practical purposes equal partners in marriage
and both husband and wife are tutors and curators of their
children. A wife is not obliged to obey her husband in all
things nor to suffer excessive sexual demands on the part of
her husband. She may rely on such demands as evidence of
unreasonable behaviour for the purposes of divorce. A live
system of law will always have regard to changing
circumstances to test the justification for any exception to
the application of a general rule. Nowadays it cannot
seriously be maintained that by marriage a wife submits
herself irrevocably to sexual intercourse in all
circumstances. It cannot be affirmed nowadays, whatever
the position may have been in earlier centuries, that it is
an incident of modern marriage that a wife consents to
intercourse in all circumstances, including sexual intercourse
obtained only by force. There is no doubt that a wife does
not consent to assault upon her person and there is no
plausible justification for saying today that she nevertheless
is to be taken to consent to intercourse by assault. The
modern cases of H.M. Advocate v. Duffy and H.M. Advocate
v. Paxton show that any supposed implied consent to
intercourse is not irrevocable, that separation may
demonstrate that such consent has been withdrawn, and that
in these circumstances a relevant charge of rape may lie
against a husband. This development of the law since
Hume's time immediately prompts the question: is revocation
of a wife's implied consent to intercourse, which is
revocable, only capable of being established by the act of
separation? In our opinion the answer to that question must
be no. Revocation of a consent which is revocable must
depend on the circumstances. Where there is no separation
this may be harder to prove but the critical question in any
case must simply be whether or not consent has been
withheld. The fiction of implied consent has no useful
purpose to serve today in the law of rape in Scotland. The
reason given by Hume for the husband's immunity from
prosecution upon a charge of rape of his wife, if it ever
was a good reason, no longer applies today. There is now,
accordingly, no justification for the supposed immunity of a
husband. Logically the only question is whether or not as
matter of fact the wife consented to the acts complained



- 4 -

of, and we affirm the decision of the trial judge that
charge 2(b) is a relevant charge against the appellant to go

to trial."




I consider the substance of that reasoning to be no less
valid in England than in Scotland. On grounds of principle there is
now no justification for the marital exception in rape.

It is now necessary to review how the matter stands in
English case law. In Reg. v. Clarence (1888) 22 QBD 23 a
husband who knew that he suffered from a venereal disease
communicated it to his wife through sexual intercourse. He was
convicted on charges of unlawfully inflicting grievous bodily harm
contrary to section 20 of the Offences Against the Person Act
1861 and of assault occasioning actual bodily harm contrary to
section 47 of the same Act. The convictions were quashed by a
court of 13 judges of Crown Cases Reserved, with four dissents.
Consideration was given to Hale's proposition, and it appears to
have been accepted as sound by a majority of the judges.
However, Wills J. at p. 33 said that he was not prepared to assent
to the proposition that rape between married persons was
impossible. Field J. (in whose judgment Charles J. concurred) said,
at p. 57, that he should hesitate before he adopted Hale's
proposition, and that he thought there might be many cases in
which a wife might lawfully refuse intercourse and in which, if the
husband imposed it by violence, he might be held guilty of a
crime.




In Rex v. Clarke [1949] 2 All. E.R. 448 a husband was
charged with rape upon his wife in circumstances where justices
had made an order providing that the wife should no longer be
bound to cohabit with the husband. Byrne J. refused to quash the
charge. He accepted Hale's proposition as generally sound, but
said, at p. 449:

"The position, therefore, was that the wife, by process of
law, namely, by marriage, had given consent to the husband
to exercise the marital right during such time as the
ordinary relations created by the marriage contract subsisted
between them, but by a further process of law, namely, the
justices' order, her consent to marital intercourse was
revoked. Thus, in my opinion, the husband was not entitled
to have intercourse with her without her consent."

In Reg. v. Miller [1954] 2 Q.B. 282 the husband was charged
with rape of his wife after she had left him and filed a petition
for divorce. He was also charged with assault upon her
occasioning actual bodily harm. Lynskey J. quashed the charge of
rape but refused to quash that of assault. He proceeded on the
basis that Hale's proposition was correct, and also that Rex v.
Clarke had been rightly decided, but took the view, at p. 290, that
there was no evidence which entitled him to say that the wife's
implied consent to marital intercourse had been revoked by an act
of the parties or by an act of the court. As regards the count of
assault, having referred to Reg. v. Jackson [1891] 1 QB 671,
where it was held that a husband had no right to confine his wife
in order to enforce a decree for restitution of conjugal rights, he
said, at pp. 291-292:

- 5 -

"It seems to me, on the reasoning of that case, that
although the husband has a right to marital intercourse, and
the wife cannot refuse her consent, and although if he does
have intercourse against her actual will, it is not rape,
nevertheless he is not entitled to use force or violence in
the exercise of that right, and if he does so he may make
himself liable to the criminal law, not for the offence of
rape, but for whatever other offence the facts of the
particular case warrant. If he should wound her he might
be charged with wounding or causing actual bodily harm, or
he may be liable to be convicted of common assault. The
result is that in the present case I am satisfied that the
second count is a valid one and must be left to the jury for
their decision."

So the case had the strange result that although the use of force
to achieve sexual intercourse was criminal the actual achievement
of it was not. Logically, it might be thought that if a wife be
held to have by marriage given her implied consent to sexual
intercourse she is not entitled to refuse her husband's advances,
and that if she resists then he is entitled to use reasonable force
to overcome that resistance. This indicates the absurdity of the
fiction of implied consent. In the law of Scotland, as Lord Emslie
observed in S. v. H. M. Advocate 1989 S.L.T. 469, 473, rape is
regarded as an aggravated assault, of which the achievement of
sexual intercourse is the worst aggravating feature. It is
unrealistic to sort out the sexual intercourse from the other acts
involved in the assault and to allow the wife to complain of the
minor acts but not of the major and most unpleasant one.

The next case is Reg. v. O'Brien [1974] 3 All E.R. 663,
where Park J. held that a decree nisi effectively terminated a
marriage and revoked the wife's implied consent to marital
intercourse, so that subsequent intercourse by the husband without
her consent constituted rape. There was a similar holding by the
Criminal Division of the Court of Appeal in Reg. v. Steele (1976)
65 Cr. App. R. 22 as regards a situation where the spouses were
living apart and the husband had given an undertaking to the court
not to molest his wife. A decision to the like effect was given
by the same court in Reg. v. Roberts [1986] Crim. L.R. 188,
where the spouses had entered into a formal separation agreement.
In Reg. v. Sharples [1990] Crim. L.R. 198, however, it was ruled
by Judge Fawcus that a husband could not be convicted of rape
upon his wife in circumstances where there \vas in force a family
protection order in her favour and he had had sexual intercourse
with her against her will. The order was made under section 16
of the Domestic Proceedings and Magistrates Courts Act 1978 in
the terms that "the respondent shall not use or threaten to use
violence against the person of the applicant". Judge Fawcus took
the view that it was not to be inferred that by obtaining an order
in these terms the wife had withdrawn her consent to sexual
intercourse.

There should be mentioned next a trio of cases which were
concerned with the question whether acts done by a husband
preliminary to sexual intercourse with an estranged wife against
her will could properly be charged as indecent assaults. The cases
are Reg. v. Caswell [1984] Crim. L.R. III, Reg. v. Kowalski [1987]
Cr. App. R. 339, and Reg. v. H. (unreported), 5 October 1990,



- 6 -

Auld J. The effect of these decisions appears to be that in
general acts which would ordinarily be indecent but which are
preliminary to an act of normal sexual intercourse are deemed to
be covered by the wife's implied consent to the latter, but that
certain acts, such as fellatio, are not to be so deemed. Those
cases illustrate the contortions to which judges have found it
necessary to resort in face of the fiction of implied consent to
sexual intercourse.

The foregoing represent all the decisions in the field prior
to the ruling by Owen J. in the present case. In all of them lip
service, at least, was paid to Hale's proposition. Since then there
have been three further decisions by single judges. The first of
them is Reg. v. C. (Rape; Marital Exemption) [1991] 1 All E.R.
755. There were nine counts in an indictment against a husband
and a co-accused charging various offences of a sexual nature
against an estranged wife. One of these was of rape as a
principal. Simon Brown J. followed the decision in S. v. H.M.
Advocate 1989 S.L.T. 469 and held that the whole concept of a
marital exemption in rape was misconceived. He said, at p. 758:

"Were it not for the deeply unsatisfactory consequences of
reaching any other conclusion on the point, I would shrink,
if sadly, from adopting this radical view of the true position
in law. But adopt it I do. Logically, I regard it as the
only defensible stance, certainly now as the law has
developed and arrived in the late twentieth century. In my
judgment, the position in law today is, as already declared
in Scotland, that there is no marital exemption to the law
of rape. That is the ruling I give. Count seven accordingly
remains and will be left to the jury without any specific
direction founded on the concept of marital exemption."

A different view was taken in the other two cases, by reason
principally of the terms in which rape is defined in section 1(1) of
the Sexual Offences (Amendment) Act 1976 viz.

"For the purposes of section 1 of the Sexual Offences Act
1956 (which relates to rape) a man commits rape if - (a) he
has unlawful sexual intercourse with a woman who at the
time of the intercourse does not consent to it; and (b) at
the time he knows that she does not consent to the
intercourse or he is reckless as to whether she consents to
it . . . "




In Reg v. J. (Rape; Marital Exemption) [1991] 1 All E.R.
759 a husband was charged with having raped his wife, from whom
he was living apart at the time. Rougier J. ruled that the charge
was bad, holding that the effect of section l(l)(a) of the Act of
1976 was that the marital exemption embodied in Hale's
proposition was preserved, subject to those exceptions established
by cases decided before the Act was passed, he took the view
that the word "unlawful" in the subsection meant "illicit", i.e.
outside marriage, that being the meaning which in Reg. v.
Chapman [1959] 1 Q.B. 100 it had been held to bear in section 19
of the Sexual Offences Act 1956. Then in Reg. v. S. (unreported),
15 January 1991, Swinton-Thomas J. followed Rougier J. in holding
that section 1(1) of the Act of 1976 preserved the marital
exemption subject to the established common law exceptions.



- 7 -

Differing, however, from Rougier J., he took the view that it
remained open to judges to define further exceptions. In the case
before him the wife had obtained a family protection order in
similar terms to that in Reg. v. Sharples [1990] Crim L.R. 198.
Differing from Judge Fawcus in that case, Swinton-Thomas J. held
that the existence of the family protection order created an
exception to the marital exemption. It is noteworthy that both
Rougier J. and Swinton-Thomas J. expressed themselves as being
regretful that section 1(1) of the Act of 1976 precluded them from
taking the same line as Simon Brown J. in Reg. v. C. (Rape:
Marital Exemption) [1991] 1 All E.R. 755.

The position then is that that part of Hale's proposition
which asserts that a wife cannot retract the consent to sexual
intercourse which she gives on marriage has been departed from in
a series of decided cases. On grounds of principle there is no
good reason why the whole proposition should not be held
inapplicable in modern times. The only question is whether section
1(1) of the Act of 1976 presents an insuperable obstacle to that
sensible course. The argument is that "unlawful" in the subsection
means outside the bond of marriage. That is not the most natural
meaning of the word, which normally describes something which is
contrary to some law or enactment or is done without lawful
justification or excuse. Certainly in modern times sexual
intercourse outside marriage would not ordinarily be described as
unlawful. If the subsection proceeds on the basis that a woman on
marriage gives a general consent to sexual intercourse, there can
never be any question of intercourse with her by her husband being
without her consent. There would thus be no point in enacting
that only intercourse without consent outside marriage is to
constitute rape.

Reg. v. Chapman [1959] 1 Q.B. 100 is founded on in support
of the favoured construction. That was a case under section 19 of
the Sexual Offences Act 1956, which provides:

"(1) It is an offence, subject to the exception mentioned
in this section, for a person to take an unmarried girl under
the age of eighteen out of the possession of her parent or
guardian against his will, if she is so taken with the
intention that she shall have unlawful sexual intercourse
with men or with a particular man. (2) A person is not
guilty of an offence under this section because he takes
such a girl out of the possession of her parent or guardian
as mentioned above, if he believes her to be of the age of
eighteen or over and has reasonable cause for the belief."

It was argued for the defendant that "unlawful" in that section
connoted either intercourse contrary to some positive enactment or
intercourse in a brothel or something of that kind. Donovan J.,
giving the judgment of the Court of Criminal Appeal, rejected
both interpretations and continued, at p. 105:

"If the two interpretations suggested for the appellant are
rejected, as we think they must be, then the word 'unlawful'
in section 19 is either surplusage or means 'illicit'. We do
not think it is surplusage, because otherwise a man who
took such a girl out of her parents' possession against their
will with the honest and bona fide intention of marrying her



- 8 -

might have no defence, even if he carried out that
intention. In our view, the word simply means 'illicit', i.e.,
outside the bond of marriage. In other words, we take the
same view as the trial judge.' We think this interpretation
accords with the common sense of the matter, and with
what we think was the obvious intention of Parliament. It
is also reinforced by the alternatives specifically mentioned
in sections 17 and 18 of the Act, that is, 'with the intent
that she shall marry, or have unlawful intercourse . . .'."

In that case there was a context to the word "unlawful"
which by cogent reasoning led the court to the conclusion that it
meant outside the bond of marriage. However, even though it is
appropriate to read the Act of 1976 along that of 1956, so that
the provisions of the latter Act form part of the context of the
former, there is another important context to section 1(1) of the
Act of 1976, namely the existence of the exceptions to the
marital exemption contained in the decided cases. Sexual
intercourse in any of the cases covered by the exceptions still
takes place within the bond of marriage. So if "unlawful" in the
subsection means "outside the bond of marriage" it follows that
sexual intercourse in a case which falls within the exceptions is
not covered by the definition of rape, notwithstanding that it is
not consented to by the wife. That involves that the exceptions
have been impliedly abolished. If the intention of Parliament was
to abolish the exceptions it would have been expected to do so
expressly, and it is in fact inconceivable that Parliament should
have had such an intention. In order that the exceptions might be
preserved, it would be necessary to construe "unlawfully" as
meaning "outside marriage or within marriage in a situation
covered by one of the exceptions to the marital exemption".
Some slight support for that construction is perhaps to be gathered
from the presence of the words "who at the time of the
intercourse does not consent to it", considering that a woman in a
case covered by one of the exceptions is treated as having
withdrawn the general consent to intercourse given on marriage
but may nevertheless have given her consent to it on the
particular occasion. However, the gloss which the suggested
construction would place on the word "unlawfully" would give it a
meaning unique to this particular subsection, and if the mind of
the draftsman had been directed to the existence of the exceptions
he would surely have dealt with them specifically and not in such
an oblique fashion. In Reg. v. Chapman Donovan L.J. accepted at
p. 102 that the word "unlawfully" in relation to carnal knowledge
had in many early statutes not been used with any degree of
precision, and he referred to a number of enactments making it a
felony unlawfully and carnally to know any woman-child under the
age of 10. He said, at p. 103 "one would think that all
intercourse with a child under 10 would be unlawful; and on that
footing the word would be mere surplusage". The fact is that it
is clearly unlawful to have sexual intercourse with any woman
without her consent, and that the use of the word in the
subsection adds nothing. In my opinion there are no rational
grounds for putting the suggested gloss on the word, and it should
be treated as being mere surplusage in this enactment, as it
clearly fell to be in those referred to by Donovan L.J. That was
the view taken of it by this House in McMonagle v. Westminster
City Council [1990] 2 A.C. 716 in relation to paragraph 3A of
Schedule 3 of the Local Government (Miscellaneous Provisions) Act
1983.

- 9 -

I am therefore of the opinion that section 1(1) of the Act
of 1976 presents no obstacle to this House declaring that in
modern times the supposed marital exception in rape forms no part
of the law of England. The Court of Appeal (Criminal Division)
took a similar view. Towards the end of the judgment of that
court Lord Lane C.J. said, at p. 1074:

"The remaining and no less difficult question is whether,
despite that view, this is an area where the court should
step aside to leave the matter to the Parliamentary process.
This is not the creation of a new offence, it is the removal
of a common law fiction which has become anachronistic
and offensive and we consider that it is our duty having
reached that conclusion to act upon it."

I respectfully agree.

My Lords, for these reasons I would dismiss this appeal, and
answer the certified question in the affirmative.

LORD BRANDON OF OAKBROOK

My Lords,

For the reasons given in the speech of my noble and learned
friend, Lord Keith of Kinkel, I would answer the certified question
in the affirmative and dismiss the appeal.

LORD GRIFFITHS

My Lords,

For the reasons given by my noble and learned friend, Lord
Keith of Kinkel, I would dismiss this appeal and answer the
certified question in the affirmative.

LORD ACKNER

My Lords,

For the reasons given in the speech of my noble and learned
friend, Lord Keith of Kinkel, I, too, would answer the certified
question in the affirmative and dismiss the appeal.

- 10 -

LORD LOWRY

My Lords,

For the reasons given by my noble and learned friend, Lord
Keith of Kinkel, I would dismiss this appeal and answer the
certified question in the affirmative.

- 11 -