Marital Coercion Defence to be Repealed

The abolition of the defence of marital coercion has now been confirmed, after an amendment was agreed to a new law passing through Parliament.

The defence allowed a wife to avoid responsibility for a crime where she could show that she acted under the coercion of her husband. The defence is fully explained in this article.

Last week, I noted the announcement that the defence was to be revoked.

The amendment has been made Anti-social Behaviour, Crime and Policing Bill. Amendment 94EA, which was moved by Lord Faulks, inserts a new clause 163 as follows:

“Abolition of defence of marital coercion

(1) The defence of marital coercion is abolished.

(2) Accordingly, section 47 of the Criminal Justice Act 1925 (coercion of married woman by husband) is repealed.

(3) This section does not have effect in respect of an offence alleged to have been committed before the date on which it comes into force.”

It is important to note sub-clause (3), which provides the defence will still be available in those cases where an alleged offence occurs before the date the defence is abolished, even if the trial occurs after the defence is revoked.

Lord Pannick, who initially tabled the amendment, said: ‘I am delighted that this truly idiotic provision of English is at long last to be abolished’.

Meanwhile, the Government has confirmed it is dropping plans in the Anti-social Behaviour, Crime and Policing Bill to replace antisocial behaviour orders (ASBOs) with new injunctions to prevent nuisance and annoyance (IPNAs). It follows widespread concern that they could criminalise any nuisance or annoying behaviour, including peaceful protest, street preachers and even church bellringers and carol singers. Instead, the original test for imposing an ASBO will continue to apply.

Government Argues Whole Life Sentences Can Be Imposed Despite Ruling by European Court of Human Rights

Introduction

The Government has argued in the Court of Appeal that whole life sentences can be imposed for the most serious crimes, despite a ruling by the European Court of Human Rights that whole life sentences are unlawful in their current form.

In July last year, the European Court of Human Rights ruled in Vinter v United Kingdom (2013) that whole life sentences – or whole life orders – amount to inhuman and degrading treatment, and therefore breach article 3 of the European Convention on Human Rights (ECHR), because there is no option for them to be reviewed and so no possibility of release for the offender. For more information on the Court’s judgment, see this article.

The case in the Court of Appeal concerns two individuals. The first is Ian McLoughlin, 55, a convicted double killer. McLoughlin was not given a whole life sentence when he was sentenced for his second murder last year because of the European Court’s ruling. Instead, he was given a life sentence with a minimum term of 40 years (for more information on sentences for murder, see this article). The Attorney General, Dominic Grieve, is appealing this sentence, arguing that the sentence passed was ‘unduly lenient’ under section 36 of the Criminal Justice Act 1988 and that a whole life order should have been imposed. He argued that the European Court’s ruling does not prevent whole life sentences being ordered.

The second individual is Lee Newell, 45, also a convicted double killer. He is appealing against a whole life sentence imposed in him last year, arguing that it was unlawful because of the European Court’s ruling.

It is for the Court of Appeal to determine whether whole life sentences remain justified. The appeal was heard on Friday (the 24^th).

The Government’s Argument

The Government argued that whole life orders do not breach article 3, despite the European Court’s ruling, because of section 30 of the Crime (Sentences) Act 1997. This provides that the secretary of state may release a life prisoner if there are exceptional circumstances to justify the release on compassionate grounds. The Government argued that whole life prisoners could use this section to apply for their release because, for example, they have rehabilitated. This would then lead to the review that the European Court has said is necessary to avoid breaching article 3.

It might be thought surprising if this argument is successful: it was rejected by the European Court in Vinter. It was rejected because the power in section 30 is only exercised in restricted circumstances. Prison Service Order 4700, chapter 12, provides the power of release will only be used where, amongst other things, a prisoner is suffering from a terminal illness or is bedridden or similarly incapacitated. Therefore the European Court was not satisfied that this provided a general right of review where a prisoner was claiming that their imprisonment was no longer justified because, for example, they had rehabilitated. This is seemingly powerful reasoning.

However, it is open to the Court of Appeal to read section 30 in a way that requires a general review where a prisoner is claiming there are no longer any grounds – such as punishment or deterrence – to justify their continued imprisonment, so that English law is compatible with article 3. It is entitled to do this under section 3 of the Human Rights Act 1998, which requires all legislation to be read compatibly with the ECHR so far as it is possible to do so. The Court of Appeal has previously contemplated this option, in a case called R v Bieber (2008).

An Alternative Argument

An alternative argument for the Government, and one which I believe was more appealing, was simply to contend the judgment in Vinter was wrong and that in those exceptional circumstances our courts should decline to follow it, an approach adopted in R v Horncastle (2009), a case concerning hearsay evidence.

Why was the decision wrong? In Vinter the European Court of Human Rights considered that reviews were necessary because it would violate human dignity not to allow an individual the chance to rehabilitate. However, as I pointed out in this article, this missed the point. Whole life sentences in England and Wales are imposed when the seriousness of an offence is exceptionally high. We have adopted the policy that some offences are so serious that the only suitable punishment is imprisonment for the remainder of the offender’s life; the offender forfeits their right to rehabilitate. Punishment of the offender and, to a lesser extent, deterring others from committing similar crimes justifies the sentence alone. There is no issue of rehabilitation since we have determined that the severity of some offences warrants a punishment where there is no prospect of rehabilitation. The real issue, then, is whether that approach is justified.

Whether that approach is correct or not – whether punishment and deterrence should trump rehabilitation – is not, I do not believe, a question suited to determination by a court. It is an unresolved philosophical question which legislators should decide until society is settled on how far punishment can justify prison sentences. If the Court of Appeal takes this option, and rules that whole life sentences can continue to be imposed on the basis that the judgment in Vinter misunderstood the nature of English law, then the issue can doubtlessly be revisited in due course by the European Court of Human Rights.

Conclusion

This is an important case. It was heard by five judges rather than the normal three: the Lord Chief Justice, Lord Thomas, sat alongside Lord Justice Leveson, president of Queen's Bench Division; Lady Justice Hallett; Lord Justice Treacy, who heads the sentencing council; and Mr Justice Burnett. If the Government loses the appeal it will strain the United Kingdom’s relations with the European Court even further.

Defence of Marital Coercion to be Abolished

It has been announced that the defence of marital coercion is to be abolished.

The defence was notoriously used unsuccessfully by Vicky Pryce last year, who sought to use the defence to avoid responsibility for accepting speeding points for her ex-husband, the former Secretary of State for Energy and Climate Change, Chris Huhne. Both were subsequently imprisoned for perverting the course of justice. For more information on that story, see this article.

The Defence of Marital Coercion

As I explained in this article, the defence of marital coercion is based on an old legal presumption that any crime committed by a wife in the presence of their husband was under coercion. The presumption was abolished by section 47 of the Criminal Justice Act 1925, but a defence remained. Section 47 provides that in any case apart from treason and murder it is a good defence for a wife to say an offence was committed in the presence of their husband under their coercion. The wife has to show on the balance of probabilities (that it is more likely that not) that their will was overcome by the coercion of the husband to commit the offence.

The defence is widely thought of as out of place in the 21^st century. It can only be used by a woman married to a man. The Law Commission has said the defence is not appropriate to modern conditions. Moreover, we are all protected by defence of duress if we commit an offence (not murder, attempted murder or treason) because of a threat of serious harm.

Abolishing the Defence

The Home Office minister Lord Taylor of Holbeach has indicated the Government’s support for the abolition, which will be achieved by an amendment to the Anti-social Behaviour, Crime and Policing Bill.

The amendment was tabled last year by the eminent lawyer, Lord Pannick QC. In response to the decision to abolish the defence, he said: ‘I welcome the Government’s decision to remove an absurd law that should have been abolished a long time ago’.

Conclusion

Abolishing this defence is, in my opinion, the entirely proper thing to do. It is plainly out of date in modern times.

What are your thoughts?

UK Government Seeks to Defy European Court of Human Rights on Whole Life Sentences

The UK Government has indicated that it will defy the European Court of Human Rights over the issue of whether the United Kingdom can impose whole life sentences for the most serious crimes.

Background

In July last year the European Court of Human Rights ruled in Vinter v United Kingdom (2013) that whole life sentences – or whole life orders – amount to inhuman and degrading treatment, and therefore breach article 3 of the European Convention on Human Rights (ECHR), because there is no option for them to be reviewed and so no possibility of the release for the offender. For more information on the Court’s judgment, see this article.

The United Kingdom is obliged to remedy the human rights breach by article 46 of the ECHR, which provides that the parties to a judgment agree to be bound by it and abide by it.

The Response

The Government was required to respond to the judgment within six months. In a formal note sent to the Council of Europe – the body responsible for the ECHR – the Government said: ‘Consideration as to what steps may be necessary as a result of the judgment is currently under way. No final decisions on those issues have yet been taken’.

The note also referred to four upcoming appeals in the Court of Appeal, where the Government is expected to argue that there is no obligation to follow the ruling because section 2 of the Human Rights Act 1998 provides that British courts need only ‘take into account’ decisions of the European Court of Human Rights, and the Vinter decision was wrong. Accordingly in those limited circumstances the British courts can decline to follow the ruling of the European Court. The United Kingdom has previously agreed with this approach, in the case of R v Horncastle (2009), a case concerning hearsay evidence.

In a separate statement, the Ministry of Justice said: ‘The Government remains firmly of the view that whole-life [orders] are wholly justified in the most heinous cases, and that they should continue to be available to the courts. We will be strenuously arguing in the Court of Appeal [in other related cases] that a judge can and must impose a whole life order [in the most serious cases]’.

Comment

The Government’s statement shows that it intends for whole life orders to continue to be available to sentencing judges. This will not ease relations between the Government and the Council of Europe. The current Conservative-led government believes that the European Court of Human Rights has excessive power over member states. It is particularly irritated by the ruling in Hirst v United Kingdom (2005), which held that a complete ban on prisoners voting in the United Kingdom was unlawful.

The statement is also interesting because it is at odds with comments made by Prime Minister David Cameron last week, where he supported 100-year reviewable sentences which would comply with the European Court’s ruling, as discussed in this article.

Nevertheless, it seems to me that this is a decision that needs to be challenged. As I noted in this article, the European Court appear to have misunderstood our law. Perhaps it would decide differently if it has the opportunity to reconsider the decision with a full appreciation of our law.

What are your thoughts?

Criminal Barristers Protest at Legal Aid Cuts

Today criminal barristers refused to attend courts in the morning in protest at proposed government plans to cut legal aid.

The joint action with criminal solicitors came in response to government plans to slash fees by a minimum of 17.5% in all cases and by 30% in the most difficult cases. Cases involving vulnerable individuals were not affected by today’s action.

It is first time in history that barristers have taken such action; barristers are recorded from as early as 1466. Since 1997, criminal barristers have had their fees cut by a staggering 40%. I cannot think of another profession that has suffered anything remotely close to such radical cuts. The result of these reductions is some barristers, who have trained for a number of years and amassed thousands of pounds of debt, earning as little £13,000 a year. This is without the planned cuts.

The Criminal Bar Association, which represents barristers undertaking criminal work, has said the proposed cuts would result in barristers being paid lower than the national minimum wage, which they are not prepared to do. It says that the cuts pose the most serious threat to the British legal system in more than 400 years. The Association argues that the cuts will drive able barristers from criminal work and deter future criminal barristers. The result, it says, will be to strip the criminal justice system of anyone able to adequately prosecute serious criminals or defend those falsely accused.

Comment

The British justice system is on the brink of destruction. This is not an exaggeration. Our legal system is the world’s most admired justice system. The late Nelson Mandela said at his trial in 1964: ‘I have great respect for British political institutions, and for the country’s system of justice. I regard the British Parliament as the most democratic institution in the world, and the independence and the impartiality of its judiciary never fail to arouse my admiration’. This reputation attracts litigations from across the world, who choose to use our legal system to settle their disputes at great benefit to our economy. Stripping the criminal justice system of those able to adequately prosecute serious criminals or defend the falsely accused will strip Britain of its reputation for justice. This will not only show our society to be unconcerned with equal justice, but will lead to adverse economic consequences as foreign litigants decide to dispute their cases elsewhere.

Criminal barristers are asking for a pay freeze. That is not unreasonable after a pay cut of 40% over the last 17 years. Further legal aid cuts will strip the criminal Bar of all its talent: the guilty will be inadequately prosecuted and the innocent will be poorly defended. Justice will be destroyed. Legal aid and justice must be saved.

What are your thoughts?

100-Year Prison Sentences for England and Wales?

This week it has been reported that whole life prison sentences in England and Wales might be replaced with 100-year prison terms.

It comes in response to a ruling from the European Court of Human Rights which declared that whole life orders amount to inhuman and degrading treatment, and therefore breach article 3 of the European Convention on Human Rights (ECHR), because there is no option for them to be reviewed and so no possibility of the release for the offender.

Background

The whole life prison order is imposed for exceptionally serious crimes. A whole life order means the offender will be imprisoned for the remainder of their life: life means life. Theoretically, a whole life order can be imposed whenever a life sentence is imposed, irrespective of the offence. However, whole life orders are almost always imposed for murder. Schedule 21, paragraph 4, of the Criminal Justice Act 2003 provides that a whole life order is appropriate for the offence of murder if the sentencing court considers that the seriousness of the offence is ‘exceptionally high’. For more information on murder sentences, see this earlier article.

In the case of Vinter v United Kingdom (2013) the European Court of Human Rights held that whole life orders breach the right in article 3 ECHR not to be subjected to inhuman and degrading treatment. In essence, this was because there is no review of whole life sentences and so no prospect of release ever for the offender. The court did not object to individuals spending the remainder of their lives in prison, it objected to the lack of a review. The reasons for the judgment are dealt with in detail in this earlier article.

In order to comply with article 3, the Government is considering replacing whole life orders with reviewable 100-year prison sentences.

So how would these differ? And is the change justified?

100-Year Prison Sentences

How would 100-year prison sentences differ from whole life sentences? Not a great deal. Owing to the length of 100-year prison terms they would be whole life sentences in all but name. But, crucially, the 100-year terms would be reviewable so that they are human rights compliant.

If 100-year terms would essentially be reviewable whole life orders, why not just make whole life orders reviewable? Presumably it is because it seems absurd to call the sentence a ‘whole life’ order if it may in fact not last for the remainder of the offender’s life owing the possibility of it being reduced upon review.

However, in attempting to avoid the absurdity of whole life sentences which are not for the whole of the offender’s life, the proposal is to introduce the similarly absurd notion of 100-year sentences. There is little possibility of an offender living long enough to serve a 100-year sentence. To impose such sentences is ridiculous. In America last year, Ariel Castro, who abducted three women and held them captive for more than a decade, was sentenced to life imprisonment without the possibility of release, plus 1,000 years. This sentence was self-evidently nonsense. Passing a sentence that cannot possibly be served in full is hollow. If a sentence for the remainder of an offender’s life is intended then that should be the sentence.

This leads us neatly to the question of whether it is justifiable to impose a whole life sentence.

Are Whole Life Sentences Justifiable?

In Vinter the European Court of Human Rights considered that reviews were necessary because it would violate human dignity not to allow an individual the chance to rehabilitate. However, as I pointed out in the earlier article, this missed the point. Whole life sentences in England and Wales are imposed when the seriousness of an offence is exceptionally high. We have adopted the policy that some offences are so serious that the only suitable punishment is imprisonment for the remainder of the offender’s life; the offender forfeits their right to rehabilitate. Punishment of the offender and, to a lesser extent, deterring others from committing similar crimes justifies the sentence alone. There is no issue of rehabilitation since we have determined that the severity of some offences warrants a punishment where there is no prospect of rehabilitation. The real issue, then, is whether that approach is justified.

Whether that approach is correct or not – whether punishment and deterrence should trump rehabilitation – is not, I do not believe, a question suited to determination by a court. It is a philosophical question which legislators should decide. Perhaps, then, our courts should continue to impose whole life sentences when it is thought such sentences are justified on the basis that the judgment in Vinter misunderstood the nature of English law. The issue can then be revisited in due course by the European Court of Human Rights.

What are your thoughts? Are whole life sentences justified? Should we move to 100-year prison sentences?