Marital coercion: the ruling in R v Pryce

Posted on 8th Mar 2013 in Case Comment

Although it may only be of persuasive authority, the ruling on the defence of marital coercion raised in the trial of Vicky Pryce is of interest to criminal practitioners and, thanks to the invaluable Crimeline Updater, and the judge having withdrawn reporting restrictions, is now available online here. Ms Pryce was unanimously found guilty by the jury of the offence of perverting the course of justice when falsely accepting, on her husband Chris Huhne’s behalf, responsibility for a speeding offence for which she was then punished but Mr Huhne escaped prosecution: see, inter alia, Guardian news report, dated 8 March.

The critical bits of Sweeney J’s ruling, released on 7 March 2013, in the case of R v Pryce are as follows:

  1. Section 47 of the Criminal Justice Act 1925 (“the 1925 Act”) provides that:
    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 charge against a wife for any offence other than treason and 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.
  2. On 11 February 2013, after the effective completion of all the evidence in the first trial, I heard extensive legal argument in relation to the issue.
  3. In the event, it became clear that there was no dispute between the parties that, as to the elements of the defence, I was bound by the combination of the decisions of the Court of Appeal in R v Shortland [1996] 1 Cr.App.R.116 and R v Cairns [2002] EWCA Crim 2838[2003] 1 WLR 796, CA, which make clear (amongst other things) that the elements of marital coercion are, in certain respects, different to those involved in the defences of duress and necessity, but also recognise that (like those defences) marital coercion decriminalises what would otherwise be a criminal offence – see also e.g. Lord Bingham at para. 22 of the judgment in R v Z (Hasan) [2005] UKHL 22[2005] 2 AC 467.
  4. Thus it was common ground that the law recognises, via the defence of marital coercion, that a wife is morally blameless if she committed an offence (other than murder or treason) only because her husband was present and coerced her – that is put pressure of some sort on her to commit the offence in such a way that, as a result, her will was overborne (in the sense that she was impelled to commit the offence because she truly believed that she had no real choice but to do so). There was also no dispute that, as to the wife’s will being overborne, the issue is entirely subjective.
  5. It was equally common ground that a wife’s will would not have been overborne (in the sense that I have just described) if, for example, she was persuaded by force of argument to choose (albeit reluctantly) to commit the offence rather than to take another course, or if she was persuaded (albeit reluctantly) to commit the offence out of love for, or loyalty to, her husband or family, or to avoid inconvenience (whether to herself or others). Her will must have been overborne (i.e. overcome) in the sense that she was impelled (i.e. forced) to commit the offence because she truly believed that she had no real choice but to do so.
  6. However, against the background that it was also agreed that there was no consideration in either Shortland or Cairns (or in any other reported case) of the effect of sections 3 and 6 of the Human Rights Act 1998 combined with article 6(2) of the European Convention on Human Rights, and that thus I was required to consider that effect, there was a stark disagreement between the parties as to whether the reverse burden provided by section 47 of the 1925 Act should remain a persuasive burden (as construed in Shortland and Cairns) or whether I was required to read it down as being an evidential burden. It was therefore that issue upon which the argument concentrated.
  7. In the result, on 12 February 2013, I ruled in favour of the Defence argument that I was required to read down section 47 as placing only an evidential burden on the defendant, and I directed the jury accordingly (providing them with written directions in the process).

His Lordship went on to summarise the evidence and refer in more detail to the authorities. In a brief history of the defence of marital coercion, his Lordship noted that it was rarely raised and its abolition had been recommended on more than one occasion. As it existed, it provided a defence only for a wife, not a partner or civil partner.

The nub of the question now was, although the statute appeared to place a burden on the defence to prove (on a balance of probabilities) that the defence was made out (a reverse persuasive burden), whether that should be “read down” pursuant to the Human Rights Act 1998 to make it compatible with the right to a fair trial and to be treated as innocent until proven guilty, as conferred by article 6 of the Human Rights Convention, and to place the burden instead on the prosecution, once the defence was raised, essentially to disprove it (and to do so on the higher, criminal standard of proof).

If so, the burden on the defence would be the lighter, evidential burden, which is simply to produce enough evidence to show that the defence could apply. In this case, that would include the fact that Ms Pryce was married to Mr Huhne, and that he was present at the material time and put some sort of pressure on her such that her will was overborne and she was impelled to act in a way she otherwise would not have done.

The judge’s discussion of the question begins at para 60 and he concludes at para 78:

Against that overall background, and having examined all the facts and circumstances of marital coercion as it applies in this case, including the extent and nature of the matters to be proved and their importance relative to the matters required to be proved by the Prosecution, I concluded that the Prosecution had failed to put forward sufficiently compelling reasons to persuade me that the substance and effect of the reverse burden in section 47 of the 1925 Act is reasonable (proportionate), whereas the Defence had persuaded me by the force of their argument (and contrary to my initial inclination) to   reach the ultimate conclusion that the legislature had attached insufficient importance to the fundamental right of an individual to be presumed innocent   until found guilty.

Sweeney J

Sweeney J

His Lordship then concludes that the reverse burden in section 47 could not be justified as a necessary and proportionate derogation  from the presumption of innocence and that it was appropriate to read down section 47 so as to impose an evidential burden (only) on Ms Pryce.

Given that the ruling was made in the Crown Court in the course of proceedings relating to trial on indictment, we would question the assumption expressed in the Crimeline Updater that the ruling is “not binding as a matter of precedent”. Section 45(1) of the Senior Courts Act 1981 says the Crown Court is a senior court of record. However, Professor Gary Slapper on Twitter opined that “systematic law reporting is sine qua non for precedent, so CrCt noncompliant. CrCt cld be cited as mere guidance.” As it happens, ICLR have occasionally reported rulings from the Crown Court but not in a systematic way. (Nor it seems has anyone else, though the Criminal Law Review comes closest.) If it isn’t actually binding, the ruling, given by a High Court judge, and from which any appeal must lie direct to the Court of Appeal, must at least be highly persuasive at Crown Court and, probably, High Court level.

For further analysis, see excellent (as always) post from Carrefax blog.