Marital coercion – an unfair anachronism?

Today James Green looks at the defence of marital coercion.  James is grateful to Mohsin Shabbir for his assistance with this article.

Vicky Pryce, the former wife of Energy Secretary Chris Huhne was, earlier this year, found guilty of perverting the course of justice by taking a number of speeding points on her then ex-husband’s behalf. The defence used by Pryce was marital coercion. This case provides an excellent opportunity to evaluate the current and somewhat archaic common law defence of ‘marital coercion’ and to consider whether the defence is still necessary in 21st century Britain.

The common law
Historically, wives were seen as obedient to their husbands, lacking significant amounts of autonomy and often playing a weaker role. Interestingly, the defence can be sourced to the 7th century laws of King Ine:
“If a husband steals a beast and carried it into his house…he shall forfeit his share…his WIFE only being exempt, since she MUST obey her lord” (my emphasis).

Increasingly, as with much of the common law, the defence has been subject to a number of changes, interpretations and there are even calls for abolition. Rex v Peel [1922] is a seminal case regarding the issue, a cause célèbre, that finally raised the question: Why should it be presumed the wife has been coerced by her husband into committing a crime? Indeed, despite the wife’s acquittal in the above case, the haphazard, out-of-focus common law was replaced by s.47 Criminal Justice Act 1925 in order to solidify the defence:
“…a wife can show on the balance of probabilities that she has committed an offence in the presence of her husband and was coerced by her spouse…”

This statute has been interpreted in a fairly broad and perhaps, generous manner. The judgment in Shortland [1996] held that no threats of physical violence were required, merely that the wife show an unwillingness to participate.

Modern Britain
The defence is still sought, such as in the case of Anne Darwin, who unsuccessfully relied upon the defence regarding her husband’s fake death in order to take part in a high figure life insurance fraud.
Aren’t the days of gender inequality behind us? This was even stated in the aforementioned Rex v Peel: “women serving on juries and becoming members of Parliament” [per Darling J]. Yet, despite some hostility to the defence, with particular focus to the Law Commission [1977] who have consistently proposed abolition on grounds of its gender inequality, it cannot be discounted that women are still, often, vulnerable parties in a marriage. Indeed, there are suggestions that marital coercion could correct such an imbalance.

Different relationship dynamics
The Huhne case has once again publicised the rarely-used defence of marital coercion, and whilst the benefits of such a defence can be readily understood, one of the main concerns is that the statute no longer incorporates the different types of relationship that are present in the UK, with particular focus to unmarried partners. Interestingly, the Marriage (Same Sex Couples) Bill 2013 is to receive the royal assent within the coming year, permitting the first same-sex marriages next year. Consequently, and perhaps now more than ever, it is time for the government to ensure that this law encompasses the large number of relationships that exist and will exist in the UK.