The interesting defence of marital coercion

The defence of marital coercion has been in the news recently with the prosecution and conviction of Chris Huhne and Vicky Pryce for perverting the course of justice. Huhne pleaded guilty (for a thorough account see Andrew Keogh on the super UK Crime Blog), and Pryce (unsuccessfully) pleaded the defence of coercion.

The defence of coercion is contained in section 47 of the Criminal Justice Act 1925:

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 charged 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.

 

Section 47 transforms what was previously a presumption of coercion into a defence which requires specific proof.

 

The burden and standard of proof

There is, understandably, relatively little case law on this defence. That said, cases have considered the requirement for the defendant actually to be a wife (Ditta [1988] Crim LR 43); the difference between coercion and persuasion, the need for D’s will to be overborne, and the difference between coercion and duress (Cairns [2002] EWCA Crim 2838; Shortland [1996] 1 Cr App R 116; Richman [1982] Crim LR 507). The question of the burden of proof has been referred to several times, but it appears, until now (see below) not to have been a matter of contention. (There is a good work through of a range of issues associated with coercion in this article by Micheal McKee).

Section 47 suggests that it is a defence to ‘prove’ coercion. The implication is clearly that whatever ‘prove’ means, it is the defendant’s job to do it. Moreover, the natural meaning of ‘prove’, when used in the context of a burden borne by a defendant, is that this is a burden which must be discharged on the balance of probabilities. The previous cases on coercion suggest that this was indeed the position, as does Archbold (2013 ed, 17-133).

It is usual that if a defendant wishes to run a specific defence, they have the burden of (at least) making the issue live by raising some evidence of it. This type of burden is known as an ‘evidential burden’, and we see it at work in a variety of defences, including the general defence of duress, the defence to murder of loss of control (Coroners and Justice Act 2009, sections 54-56), and a range of other statutory defences. Once the defence has discharged this burden, the issue is live, and the prosecution must disprove the defence beyond reasonable doubt.

However, the burden of proving a defence on the balance of probabilities is a different, heavier form of burden. In such cases, the defendant must not only raise the issue and make it live, but must also persuade the court that their account is more likely than not to be believed. This is referred to as a legal or persuasive burden, and is placed, for example, upon defendants who plead diminished responsibility (Homicide Act 1957, section 2, as amended by the Coroners and Justice Act 2009, section 52), the common law defence of insanity (M’Naghten 8 ER 718), and a range of other statutory defences.

In Pryce, Sweeney J ‘read down’ section 47 of the Criminal Justice Act 1925 such that the burden on D in relation to coercion was ‘evidential’ rather than ‘legal’.

 

Here’s another way of representing the issues:

 

 

Prior to Pryce, a wife in a coercion case could only win by getting the factfinder to point 4 in the diagram by the end of the case; whereas if Sweeney J’s ruling is followed in future cases, she would be required ‘merely’ to get the issue on the table by getting them to point 2, at which point the prosecution would have to disprove coercion beyond reasonable doubt (ie, by getting the factfinder to any point to the left of point 2). (On the extent to which Sweeney J’s ruling on coercion is binding on future courts, see this fascinating post).

 

A defensible departure?

So, on the burden and standard of proof, Pryce involves a departure from previous cases. Is it a defensible departure? Sweeney J’s interpretation of section 47 is more favourable to the defendant than the position in previous cases. Our intuitions, and our general understandings of the judicial function, may lead us to be less hostile to judges limiting rather than expanding the scope or impact of the criminal law. There is also a range of reverse burden provisions which, while originally understood to impose a legal burden on a defendant (to be discharged on the balance of probabilities), have been reinterpreted or ‘read down’ in light of section 3 of the Human Rights Act to impose merely an evidential burden (in order to comply with Article 6 of the European Convention on Human Rights (particularly Article 6(2), the presumption of innocence). Indeed, one of the earlier examples of this – Lambert [2001] UKHL 37 – involved the reading down of ‘prove’ (the relevant verb in section 47 of the Criminal Justice Act 1925) in the defences to possession in section 28 of the Misuse of Drugs Act 1971 to connote an evidential burden, rather than the legal burden which had prevailed to that point.

Moreover, the ruling is certainly thorough (it’s good to see a reference to Ian Dennis’s excellent article ‘Reverse onuses and the presumption of innocence: in search of principle’ [2005] Crim LR 901-936) and it follows the orthodox approach developed through the litany of post-Human Rights Act reverse burden cases, by asking, in effect:

 

  1. Does the provision in question, on its face, impose a legal burden on a defendant (ie, a burden on the balance of probabilities)? If so:
  2. Does the provision engage the presumption of innocence? If so:
  3. Is the imposition of a legal burden necessary and proportionate? If not:
  4. Is the provision to be ‘read down’ such as to impose only an evidential burden?

 

Sweeney J’s focus is on question 3 and the issue of proportionality. He decided that a legal burden was, in effect, unnecessarily heavy, and read it down accordingly.

However, I think that question 2 is possibly more interesting. The question here is whether the defence of coercion engages the presumption of innocence. Coercion does not require the defendant to disprove any element of the offence with which they are charged, so it is not clear that the presumption of innocence is being overridden in any way. Looking again at Lambert – in the Court of Appeal this time, where it was considered with two other appeals as Lambert, Ali and Jordan [2001] 1 Cr App R 14 – we see a similar question being asked in relation to the defence of diminished responsibility. This does not require D to disprove any elements of the offence of murder. Rather, it is an additional opportunity to avoid / lessen liability which does not engage the presumption of innocence. Given that Article 6 is not engaged, the reading down power under section 3 of the Human Rights Act is not triggered. However, Sweeney J recognises in his ruling (at [53]) that the engagement of the presumption of innocence is not considered solely with reference to whether D has to disprove an element of the offence:

 

… as identified in para. 30 of the judgment in Williams, the trend of authority in recent times (see e.g. the speech of Lord Steyn in Lambert v DPP (above)) has been to look at such matters rather more broadly than arguments in the past, in some contexts, that when what might be called a statutory defence is provided by the relevant statute there can be no infringement of the presumption of innocence where all the constituent elements of the offence are required to be proved by the prosecution. Here … the current reverse persuasive burden means that a wife could be convicted when there was a reasonable doubt about whether she had been coerced by her husband, and thus a reasonable doubt as to whether she was morally blameworthy or not. Hence … the persuasive burden in s.47 encroached on Ms Pryce’s Article 6(2) rights.

 

The suggestion that if the burden on D was legal rather than evidential, they might be convicted even if there was reasonable doubt as to their moral blameworthiness is right. However, it must be equally true that the same doubt might exist if there were simply no statutory defence of coercion; a situation which would not raise any issue under Article 6. It seems odd that if there is no statutory defence, a defendant would have no claim under Article 6, but that the concession of a defence affords a claim as to the nature of the burden which it imposes. (This point seems to be recognised by Lord Rodger dissenting in Attorney-General's Reference (No. 4 of 2002) [2004] UKHL 43 (the case considered alongside Sheldrake) in the context of section 11(1) and 11(2) of the Terrorism Act 2000).

I also think there are some interesting implications from the amount of work which ‘moral blameworthiness’ is doing, on Sweeney J’s analysis of the engagement of the presumption of innocence, and from the fact that coercion, as Sweeney J notes, is a general defence, capable of applying to all offences except murder and treason. ‘Moral blameworthiness’ seems to sit quite nicely with an offence such as perverting the course of justice, which has at its heart a behaviour which many would assume entailed some not insignificant ‘wrongness’. However, if we look back at the various reverse burden cases, they involve the provision of defences to a specific offence or offences, by contrast with the general nature of the defence of coercion. Assume that many of the offences to which coercion can apply do not have moral blameworthiness at their heart. In such cases, offering an opportunity to a defendant to assert their moral blamelessness through the defence of coercion would not be inviting them to rebut an issue which was part of the essence of the offence. Is the presumption of innocence truly engaged in principle by a defence of coercion in those cases? Take for example, a situation in which a wife is claiming that she was coerced into driving a car which had a defective light. Does a claim of coercion, and the attendant assertion of moral blamelessness really entail a rebuttal of any aspect of the essence of the offence – if the essence of the offence itself is nothing to do with moral blameworthiness? Remember, this is not to suggest that a defence of coercion would / should not be available, just that there is an issue as to whether the presumption of innocence is truly engaged; if it is not, the questions of necessity and proportionality, and of reading down, would not arise. The logic here, if this is correct, could lead to the curious / improbable situation of a general defence, with a different burden imposed on the defendant depending on the offence in issue and on whether the presumption of innocence is engaged (an evidential burden being possible if it is (depending on necessity and proportionality); only a legal burden if not). I don’t imagine that this is anybody’s intention, or that this is a practical possibility, but it does seem to be an issue of principle which might affect any general defence.

(I wonder if different burdens relating to the same defence are objectionable in principle. It seems very odd as a proposition, and problematic in practice, but if, in principle, defences and their elements are not categorically separable from offences and their elements, then it is not absurd to suggest that the same defence might ‘mean’ something different in the context of different offences. This needs more of a work through.)

 

Unnecessary and anachronistic?

At first sight, there may seem something odd in 2013 about a criminal defence which is only available to wives. That said, it’s not unusual for the law more broadly to treat marriage as ‘different’, for example for the purpose of taxation. Even the criminal law, notwithstanding its emphasis on individual agency, responsibility, liability and punishment, has at various times and in various instances, treated the relationship between spouses as distinctive (some instances have now been developed to accommodate civil partners). They include rules on compellability as a witness, and liability for conspiracy. The most grotesque example was the marital immunity for husbands in rape.

 

So, is there a case for the coercion defence? Ultimately, this is a question about the principles and experience of equality. When we appeal to equality, we may ask that everybody be treated the same, or (the proposition which underpins discrimination law) that people be treated differently with reference to the relevant differences between them. We cannot therefore write off a defence for women, or indeed for wives, simply by virtue of the fact that it is for women or for wives. We need to ask whether there is something distinctive about the category of ‘wife’ which should entail the availability of a specific defence? This needs a bit of unpacking. First, is there a case for a defence of coercion which is only available to women? This is a question which law alone cannot answer, but there are plausible arguments both ways. To look at the shape, rather than the content of the arguments: insofar as the defence might be thought to reflect and to compensate for inequalities in gender relations, we might take the view that it is no longer 1925, and that significant social progress has been made since then; that might point to the obsolescence of the defence. On the other hand, we might point to persisting inequalities which would lead us to consider retaining it. The next question we should ask is whether marriage is a context peculiarly given to coercive behaviour. The sad truth of human capacity for abusive behaviour across the full gamut of relationships means that the answer must be no. The criminal law’s ‘special’ treatment of marriage has always been problematic. It has informed historic injustices in the substantive law such as the husband’s immunity in rape, and injustices in enforcement, through, for example, the treatment of domestic violence as a ‘private’ matter. The law on coercion creates a different form of arbitrary and unsustainable distinction between ‘wives’ and others.

Maybe the better, and more modern question, is to ask whether the law should provide a general defence, to anybody, regardless of gender, marital or relationship status, based on coercion which falls short of the stringent requirements of duress. That a ‘wives only’ defence of coercion cannot be supported does not, without more, entail extension of the defence. Related policy arguments have been considered in the context of duress, and the issues are controversial. There is a sensible argument to the effect that duress may demand more from citizens than should be required, and that some more expansive defence may be in order. However, that argument will have to take account of competing views favouring a restrictive approach to excuses. Perhaps that should be for another post.

 

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