Saturday, 2 June 2012

Odd Corners of the Criminal Law - Marital Coercion

A defence to any criminal charge (other than treason or murder) - available only to women - is that of Marital Coercion.  The defence appears in the Criminal Justice Act 1925 section 47:

Abolition of presumption of coercion of married woman by husband.

Any presumption of law that an offence committed by a wife in the presence of her husband is committed under the coercion of the husband is hereby abolished, but on a charge against a wife for any offence other than treason or murder it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband.


Hence, unlike the old common law. coercion of the wife is not to be presumed, but it may nevertheless be proved.

To establish the defence, the man and woman
must be married at the time of the offence in relation to which coercion is claimed.  A mistaken (even if reasonable) belief that she is married will not suffice: Ditta, Hussain and Kara [1988] Crim LR 42.  Furthermore, section 47 requires both that the offence be committed in the presence of the husband and also under his coercion.  The word coercion has been said to amount to an external force which cannot be resisted and which impels a person to act otherwise than the person would wish: DPP for Northern Ireland v Lynch [1975] AC 653.  In Richman [1982] Crim LR 507, Hutton J directed the jury that coercion could be physical or moral.  Coercion, however, differed from trying to persuade someone out of loyalty but involved proof that the wife was forced unwillingly to participate in the offence.  Hutton J's direction was approved by the Court of Appeal in Shortland [1996] 1 Cr App R 116 - and see R v Cairns, Zaidi and Chaudhary [2002] EWCA Crim 2838 at para 57.

One criminal law textbook states: "The need for this defence is highly questionable as it is doubtful whether a woman coerced to commit an offence would give evidence in court which could be used to establish the guilt of her husband" - Michael Allen Textbook on Criminal Law (10th Ed, 2009).  This statement perhaps holds water where the couple continue to be in some form of continuing relationship but is the statement as valid where, some time after the offence has been committed, the couple have separated or divorced?  Furthermore, given the greater present-day knowledge of the extent of "domestic violence" (in its various forms) is it perhaps reasonable to conclude that "coercion" may be more widespread than commonly assumed?  See "Adjust the Sails" "Marital Coecion - a likely defence" - for an interesting view.

If this statutory defence were to be abolished, it might be open to a woman to plead the common law defence of duress which is available to all offences other than murder or attempted murder and some forms of treason.  (The law of treason is ancient, obscure, complex and extremely rarely used).  However, in the present state of the law, duress is limited to threats of death or physical violence and there is an objective test relating to the effect which the threats would have on a sober person of reasonable firmness sharing the characteristics of the defendant.  If duress is made a "live issue" in a trial then the prosecution bears the burden of disproving it.

The Law Commission recommended abolition of the defence of marital coercion as long ago as 1977 - (Law Com No. 83 (Defences of general application) and the Commission did not include it in the Draft Criminal Code (Law Com No 177).

There were several reasons for this, including the following:
  • There are uncertainties surrounding the operation of the defence, for example, in relation to the strictness of the requirement in law that the husband be physically present when the wife commits the offence;
  • The defence is ill-suited to modern conditions. Many married women are now financially independent from their husbands - (but it may be added, many are not at all independent);
  • It is absurd to provide a special defence to wives which is not available to other women who may be placed in an equally vulnerable position, such as a woman living with a man or a dependant daughter of 17 years.  (Of course, it is arguable that the law could be amended to include such cases).
Parliament did not extend the defence to civil partnerships.

Interestingly, the defence appears to have been argued in road traffic cases as in the Ashley Fitton case in 2000.

Other reports - touching on the related subjects of "duress by threats" and "duress of circumstances" are Law Commission reports - "Legislating the Criminal Code: Offences against the Person and General Principles" (Law Com No 218) and "Murder, Manslaughter and Infanticide" (Law Com No 304).  These are lengthy documents but they are essential reading for the serious law student or practitioner.

16 comments:

  1. A most topical post, and I'm sure we'll be hearing more about this defence in the weeks and months to come. The issue of presence may prove of particular interest.

    ReplyDelete
  2. It is also preposterous to keep it for women only. What would the ECtHR make of it?

    ReplyDelete
    Replies
    1. That's an interesting question. Parliament itself does not generally look back at old legislation to see whether it is compatible with european convention rights. Assuming a case concerning marital coercion got to the Court of Appeal then, as things stand, the appellant would be a woman who had been convicted because the defence failed at trial. In theory, it would be open to the appeal court to make observations about compatibility. However, the appellant in this scenario would probably not be arguing that the defence is incompatible with convention rights. The argument would be on some other point of law arising from the trial judge's direction to the jury - perhaps a point of interpretation.

      The defence is generally seen as anachronistic. I think that, given the choice, Parliament would be more likely to abolish it than extend it to other relationship situations.

      Delete
  3. The law of treason is ancient, obscure, complex and extremely rarely used.....

    Hmmmmmm the Treason Felony Act:

    If any person whatsoever shall...compass, imagine, invent, devise, or intend to deprive or depose our Most Gracious Lady the Queen, from the style, honour, or royal name of the imperial crown of the United Kingdom, or of any other of her Majesty’s dominions and countries, or to levy war against her Majesty, within any part of the United Kingdom, in order by force or constraint to compel her to change her measures or counsels, or in order to put any force or constraint upon or in order to intimidate or overawe both Houses or either House of Parliament, or to move or stir any foreigner or stranger with force to invade the United Kingdom or any other of her Majesty's dominions or countries under the obeisance of her Majesty, and such compassings, imaginations, inventions, devices, or intentions, or any of them, shall express, utter, or declare, by publishing any printing or writing ... or by any overt act or deed, every person so offending shall be guilty of felony, and being convicted thereof shall be liable ... to be transported beyond the seas for the term of his or her natural life.

    that's worth a post in itself....

    ReplyDelete
  4. @ Anonymous - yes, it probably is. The very wording of the Treason Felony Act illustrates the utterly unsatisfactory nature of the law and, of course, we no longer have transportation!! When the Treason Felony Act was enacted transportation was probably seen as kinder than the usual penalty for treason itself !!

    The reference to transportation is now to be read as imprisonment for life or any shorter term

    ReplyDelete
    Replies
    1. So any Australians who agitate for that country to become a republic can be punished ... with transportation to Australia!

      Delete
    2. @ vp - See my other post on TREASON and the case of R v Attorney General ex parte Rusbridger which is referred to there.

      Delete
  5. This is nice post and nice read about this issue.

    ReplyDelete
  6. Vicky Price is arguing on marital coercion of taking speeding points for her ex-husband Chris Huhne.

    http://www.bbc.co.uk/news/uk-21333624

    Mr Edis said Ms Pryce would now use a special legal defence available only to wives, saying that she was coerced by him into taking them.

    He said the jury would have to decide whether Ms Pryce was "weak-minded" and forced into accepting the points by Huhne or was a "strong-minded and manipulative" woman acting of her own free will.

    ............

    Marriage (Same Sex Couples) Bill

    http://www.publications.parliament.uk/pa/bills/cbill/2012-2013/0126/2013126.pdf

    5 (1) This paragraph applies to provision made by—
    (a) this Act and any subordinate legislation made under it, or
    (b) new England and Wales legislation,
    including any such provision which amends existing England and Wales
    legislation.

    (2) The following expressions have the meanings given—
    (a) “husband” includes a man who is married to another man;
    (b) “wife” includes a woman who is married to another woman;
    (c) “widower” includes a man whose marriage to another man ended
    with the other man’s death;

    So under a lesbian marriage both parties can get off but gays in a marriage cannot.

    ReplyDelete
    Replies
    1. With respect, I don't think so. The 1925 Act refers to a wife in the presence of her husband. Under the same sex marriage bill, a husband is always male and a wife is always female. If you apply that to the 1925 Act you therefore still require a male and female.

      Delete
    2. I could comment about what you say Mr Edis said but I will not since the trial is underway.

      Delete
    3. ObiterJ, you are clearly right.

      Delete
  7. Yes you are right. ObiterJ,

    Only applies for women complaining about men.
    Not for women complaining about women;
    nor for men complaining about men;
    not for men complaining about women.

    But it gets interesting if the man (husband) converted into a woman (wife) between offence and court case.

    Or could the man declare that he was in fact a woman (wife) at the time as a defence?

    ReplyDelete
  8. @Anonymous

    @ Anonymous

    If the individuals in question were lawfully married at the time of the offence then the marital coercion defence would be available to the wife.

    There seems to be no definitive answer to your question. My tentative answer would be NO. Surely, the kind of 'declaration' you mention would have no affect on the marriage.

    I think that there would be a difficult issue if, at the time of the offence, the 'wife' had actually obtained an interim gender recognition certificate (as is possible under the Gender Recognition Act 2004). (A full certificate cannot be obtained until the marriage is terminated). Perhaps in such a case the defence would not be available?

    One suspects that if Parliament addressed itself to this defence then it would be abolished rather than extended.

    ReplyDelete
  9. With respect, I don't think so. The 1925 Act refers to a wife in the presence of her husband. Under the same sex marriage bill, a husband is always male and a wife is always female. If you apply that to the 1925 Act you therefore still require a male and female.

    ReplyDelete