Vicky Pryce's recent trials for perverting the course of justice have raised a
number of interesting legal issues.
The one i wish to concentrate on today is the defense of marital coercion
which Vicky Pryce relied on ultimately unsuccessfully at both of her trials.
This defense is defined in section
forty seven
of the criminal law act nineteen twenty five
which provides that on a charge against a wife
for an offence of other than treason or murder
it shall be a good defence to prove the offence was committed in the presence
of
and under the coercion of
the husband.
I imagine many people would be surprised to learn such a defence still exists in
English law today.
It certainly harks back to a time
when wives were considered to be utterly incapable of disobeying their husbands
and that is why they would need a defence to crime.
Obviously that is an outmoded view of the law
and I want to argue today that the defence marital coercion
should be abolished.
The main reason that marital coercion is so problematic
is that it's so obviously discriminatory.
Firstly it relies on a very outmoded view of the marital relationship.
I've mentioned already that only wives can use it.
It seems ridiculous to have seen in this day and age that husbands cannot also be
subjected to coercion by their wives
and as I've already said it's ridiculous to say that all wives
could be subjected to coercion
by their husbands.
Further more it privileges marriage as a unique relationship.
Since 2004
same sex couples have of course been able to engage in
civil partnerships.
When civil partnerships were introduced a range of legislation was changed
so as to make clear that civil partners could make use of certain defences
or could use certain rules.
One example of this would be the rule in section eighty of the police and
criminal evidence act 1984 or pace as it's more
commonly known.
Section eighty provides that a person is not generally compellable against
their spouse
which means that cannot be made to give evidence against their spouse in a
criminal trial.
When civil partnerships were created section eighty of pace was amended to
make clear
that civil partners are also not compellable against one another.
A similar change was obviously not made to marital coercion.
Moving beyond legally recognised relationships
it must be noted that nowadays in england and wales many couples choose
not to get married and still cohabit.
It might be wondered why if wives can be coerced into
committing crime
by their husbands
one member of a cohabiting couple cannot be coerced into committing crime by
the other,
and if we go further than that
it's not clear why if wives can be coerced into committing crime by their
husbands
children cannot be coerced into committing crime by their parents
and so it goes on.
Now because the defense of marriage of coercion is so very obviously
discriminatory
it does raise concerns with the european convention on human rights
and this is because the rights protected under the convention must be protected
in a way that is not discriminatory.
One of the rights that everybody has under the european convention
is the right to liberty which is protected by article five.
Now because they do not have access to the defense of marital coercion
the groups i just mentioned so husbands civil partners and children could be
deprived of their liberty
simply on the basis of their gender or their marital status:
that looks very worrying indeed.
So what could be done
to cure these defects of marital coercion?
Well the first option would be to reform
the defence.
This could be done
by allowing all of the group I've just discussed to make use of the defence
so husbands civil partners etc.
I think the problem though would be redefining section forty seven of the
1925 act
so that it would
draw clear lines.
For example I've already mentioned that cohabiting couples presumably are
just as deserving of having this defence as wives are.
How would we draw the line between when a cohabiting relationship
is sufficiently long enough.
For example to give rise to a defence?
I don't think there's any way to draw that kind of line
without doing it arbitrarily,
and of course sometimes the law must draw lines in just that manner - if we think
the age of criminal responsibility which is ten in england and wales
for example, the law just needs to draw a line -
but when we're dealing with something about emotional pressure
arising from relationships
I think that it's just far too difficult to draw lines in a way that is helpful,
and so we might wonder whether one should be drawn at all.
Given the problems of drawing principled lines around the defence of
marital coercion,
I think that a better solution would be to abolish the defence.
Indeed the law commission recommended such a change in 1977.
The law commission felt that the defence looked like a relic of the past then,
and I've said already that things are worse now.
So what would happen if we were to abolish the defence of marital coercion?
Well a wife who's arguing that her husband
coerced her into committing a crime would have to rely on the defense of duress.
That is what
husbands, civil partners et cetera would have to do at present.
Duress is much harder to establish than marital coercion.
Firstly,
there must be a threat of death or serious injury
directed towards the wife,
her immediate family,
or someone for whom she could reasonably regard herself as being responsible.
That obviously narrows down the threats that the wife would be able to argue
forced her into breaking the law.
Additionally,
it must be shown that the
sober person of reasonable firmness
would also have broken the law in those circumstances.
That obviously
adds an objective element to the defense which is not present
in marital coercion.
So, what would the consequences of abolition be?
Some people including Vicky Pryce's solicitor have argued that duress would
be too narrow a defense for wives to use if they were in abusive
relationships.
Now obviously the criminal justice system should avoid revictimising
people if possible,
but that does still not answer the fact that marital coercion
is a discriminatory
defence.
Yes, many of the people statistically who are subjected to
abusive relationships are women, but not all of these women are going be
married.
Further more it
cannot be said
only women can be
subject to abuse in relationships.
So I think that rather than having the defence made specifically for wives
it would be far better for the law to put more resources into detecting and
dealing with
abusive relationships in a better manner.
One way of doing this would be to consider the question of abuse at the
prosecutorial stage.
It must be asked for example whether it is really in the public interest to
prosecute someone who's been in an abusive relationship
and has been made by their abuser to break the law.
Additionally,
even if duress is not made out
psychological pressure
on the defendant could be taken into account at sentencing.
So although i am in favor of abolishing the defence of marital coercion,
I do not think that means that the criminal justice system should not
take account of the circumstances surrounding crime at all.