Monday, March 16, 2020
Forced Marriage and the Law
The Anti-social Behaviour, Crime and Policing Act 2014 (‘the 2014 Act’) created the criminal offence of forced marriage. The key offence, which carries a maximum sentence of seven years if tried on indictment, is contained in s.121, which provides that a person commits an offence if they:
• coerce a person into marriage when they know or reasonably should know the person does not consent;
• cause any person without capacity to enter marriage, regardless of whether or not they coerce them; or
• deceive someone into leaving the United Kingdom intending them to be coerced into marriage.
The section defines ‘coercion’ broadly to include ‘violence, threats or any other form of coercion’, and clarifies that ‘marriage’ means ‘any religious or civil ceremony of marriage’, regardless of whether or not it is legally binding. A person has ‘capacity’ (within the meaning of the Mental Capacity Act 2005) unless they suffer from an impairment of their mind or brain which renders them incapable of making a specific decision, in this case the decision to enter marriage. A clear distinction is also drawn repeatedly in government guidance between forced marriage and arranged marriage - a marriage is not forced if both spouses choose to accept an arrangement made by their families.
As of early 2019, there had been only four convictions for forced marriage under the s.121 offence since its creation in 2014. All four convictions have occurred since in 2018, so that represents a considerable rise from zero in the previous four years. The number, however, is still very low in proportion to the number of reported offences - in 2017 alone the Forced Marriage Unit was involved in 1,196 cases.
Why are the numbers so low? The reason most commonly offered is that complainants in forced marriage cases - as with other ‘honour based abuse’ crimes committed within families - are frequently reluctant to testify when charges are brought against their parents, or other loved ones. While the Crown Prosecution Service are able to bring a case without the consent or involvement with the victim, they cannot do so without sufficient evidence to provide a ‘realistic prospect of conviction’, and this will very often depend on the complainant’s testimony. Many cases fail at the charging stage (or later, if the complainant changes their mind) for this reason.
CPS guidance also encourages prosecutors to carefully consider the motivation for the offence. This is not an element of the offence, but may be considered in when deciding whether prosecution in a particular case is in the public interest. The guidance gives the example in which a family have acted without ‘malign motive’ to marry a person with changing mental capacity to a spouse who will provide them with care. While good intentions provide no legal defence, in such circumstances prosecutors are encouraged to use ‘care and sensitivity’ when deciding whether or not to bring charges.
However, outside such unusual circumstances, the assumption in forced marriage cases will usually be that the motive is malign. The guidance is clear that prosecutors should therefore normally charge the s.121 offence if there is sufficient evidence and not accept an alternative plea. In cases which have resulted in conviction - which involved physical violence and the removal of the victims from the UK by force - defendants have been sentenced to three-and-a-half and four-and-a-half years in custody.
Alternatives to the s.121 offence
Despite the small number of cases brought under the s.121 offence, defendants should be aware that they have other routes to securing convictions against people accused of forced marriage, even when the victim is reluctant to testify.
First, where forced marriage is alleged to have taken place there will often be evidence sufficient to prove other serious offences, including but not limited to assault, kidnap, abduction, theft, harassment, false imprisonment and any relevant sexual offences. In R v Begum  EWCA Crim 1492 the victim did not support the prosecution and was treated as a hostile witness, having returned to her family. The defendants were nonetheless convicted of kidnapping, and were sentenced to four years, the judge taking the view that they had ’acted from the motive of forcing their sister into marriage’. The Court of Appeal approved that approach in principle, so it seems a person convicted of a related crime can effectively be sentenced on the basis that they were attempting to commit the s.121 offence.
The other route open to complainants (rather than to prosecutors) is to seek a Forced Marriage Prevention Order (FMPO) under the s.63B(1) of the Forced Marriage (Civil Protection) Act 2007 (‘the 2007 Act’). These are a civil remedy which predate the 2014 act, and can be made by the Family Court containing ‘such prohibitions, restrictions or requirements and such other terms as the court considers appropriate’. In practice this usually means forbidding the respondents from doing anything to force, cause or permit the applicant to marry. Depending on the circumstances of the case, the order may also e.g. forbid the applicant from being removed from the United Kingdom, or forbid the respondent from contacting them.
However, the 2014 Act also amended the Family Law Act 1996 to include s.63CA, which created another new offence, ‘breach of an FMPO’. That sentence carries a maximum sentence of five years if tried on indictment. While in theory the new breach offence was created to give the complainant the option of reporting breach of the order to the police and initiating criminal proceedings, it is again possible for the authorities to bring a prosecution without the consent of the victim.
While the number of prosecutions and convictions brought under the s.121 offence is therefore low, a significantly larger number of prosecutions are brought related to forced marriage (described by the CPS as ‘FM-flagged’), and these are rising year on year. Given the considerable discretion prosecutors have to add or substitute charges up to and during a trial, this means that forced marriage cases can become complex and may require expertise across a wide range of related offences.
Quentin Hunt is a criminal Barrister with a broad range of expertise in matters such as these and is available to Contact for a free no obligation discussion about any current or potential case.