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Criminalising Forced Marriage – The Deterrent Effect

Danish Ameen, barrister of 18 St John Street Chambers, considers the impact of the criminalisation of forced marriage which came into effect on the 16th June 2014.

Danish Ameen, barrister, 18 St John Street Chambers, Manchester 

Danish Ameen, barrister, 18 St John Street Chambers

Forced marriage has historically been dealt with through the inherent jurisdiction of the High Court, where injunctions have been granted to prevent a person from entering into marriage without their consent.  However, this system did not meet the growing demand for protection.

A joint Foreign and Commonwealth Office and Home Office unit was created to tackle the increased number of cases – the 'Forced Marriage Unit'.  The work of this unit helped raise awareness of the growing problem within England and Wales and led to the creation of forced marriage protection orders in November 2008 by the Forced Marriage (Civil Protection) Act 2007, which introduced Part 4A Family Law Act 1996).  For the first time, there was a clear procedure for victims to secure injunctive relief from the family courts.

Nevertheless, the focus thus far has been exclusively on protecting the victim.  The only form of punishment available to the family courts has been through proceedings for contempt of court following breach of a forced marriage protection order.  In respect of the criminal courts, perpetrators would face charges only if they had committed a criminal act in the pursuit of forcing someone into marriage. 

The case of Shafilea Ahmed highlights the dilemma.  Shafilea was last seen alive on 11th September 2003 and her body was found in February 2004.  Her parents were charged with and subsequently convicted of her murder in 2012.  This tragic story revealed that Shafilea had been taken to Pakistan under false pretences – marriage was only prevented because she attempted suicide by drinking bleach.  She made numerous attempts to run away from home and made disclosures to friends and professionals. 

Sadly, whilst it is arguable that the authorities ought to have picked up on the signs and preventative measures should have been taken, the parents had not committed any criminal offence until they murdered their daughter. 

On 16th June 2014, the Anti-social Behaviour, Crime and Policing Act 2014 came into force, criminalising forced marriage.

Section 121(1) of Anti-social Behaviour, Crime and Policing Act introduces two offences; a person commits an offence if he or she:

'(a)  uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage, and

(b)  believes, or ought reasonably to believe, that the conduct may cause the other person to enter into the marriage without the free and full consent.'

Those with experience in this area will know that perpetrators use different methods to force someone into marriage – threatening violence against the victim or their siblings, using financial, psychological and/or physical abuse.  The new offence is designed to criminalise any such behaviour if it is done in an attempt to coerce someone into marriage. 

Importantly, a further offence is created by Section 121(3), whereby a person commits an offence if he or she:

'(a)  practises any form of deception with the intention of causing another person to leave the United Kingdom, and

(b)  intends the other person to be subjected to conduct outside the United Kingdom that is an offence under subsection (1) or would be an offence under that subsection if the victim were in England or Wales.'

This is crucial.  Perpetrators often lie to victims, deceiving them about the health of an elderly relative, or saying that a visit is just a holiday (as was the case with Shafilea Ahmed) to explain why they are travelling outside of the jurisdiction.  The intention is that once the victim is out of the jurisdiction and 'back home', perpetrators and/or extended family members can do whatever they want to force the victim into marriage.

Section 121(3) makes the deception of the victim to entice them out of the country a criminal offence in itself.  Previously, this deception would often go unpunished because it did not constitute a criminal offence in itself, and the authorities would not be able to prosecute extended family members in another jurisdiction.  This is an important step that provides a clear deterrent to family members who hitherto might have been willing to lie to victims in the belief that they would be 'immune' from any prosecution.   

Interestingly, section 121(2) states that if a victim lacks capacity to consent to marriage, the offence could be capable of being committed by any conduct carried out for the purpose of causing the victim to enter into marriage, irrespective of whether the conduct amounts to violence, threats or any form of coercion.  I have not seen any statistics on people who lack capacity to consent to marriage, but this additional provision will help protect the most vulnerable within the community. 

Both section 121(1) and (3) carry a maximum penalty of twelve months imprisonment on summary conviction, or seven years on indictment.  There is no need for the existence of a forced marriage protection order for the offence to be committed – these offences stand independent of the family jurisdiction.

The fact that both sections attract the same sentence is an important message – lying to get a victim out of the country is taken as seriously as the violence used to force that victim to enter into matrimony.

Section 120 of the Act amends Part 4A Family Law Act 1996, introducing section 63CA.  This brings in a new offence of breaching a forced marriage protection order, carrying a maximum penalty of five years imprisonment.

Section 63CA(2) ensures that a person is guilty of an offence only in respect of conduct engaged in at a time when the person was aware of the existence of the order.  This should encourage practitioners to ensure that when a forced marriage protection order is made, the affidavits of service are sufficiently detailed, possibly attaching photographs of people served with the orders.  The need to ensure that orders are properly translated to respondents when orders are served, and an appropriate translator present with the process server becomes more acute because a successful prosecution may hinge on this process. 

That being said, if there are any discrepancies regarding service of a forced marriage protection order on a respondent, the CPS may be able to charge pursuant to section 121.

On a side note, it does seem curious that a person who has already been a named respondent to a forced marriage protection order faces a lesser sentence of 5 years, compared to someone who has not been previously warned, who could receive a sentence of 7 years.     

Under section 120 (3) and (4), a person who has breached an order could be dealt with in the family jurisdiction for contempt of court or charged under the criminal jurisdiction (but not both).   

The decision as to which course of action to take is likely to be influenced by the victim.  The question is – should it be down to the victim to decide whether her parents and/or siblings should face a criminal prosecution?  What information is given to the victim, and by whom, will be critical in any decision making process.  Due to the speed at which charging decisions can be made, family practitioners will need to ensure they are able to offer advice to clients for whom they have secured forced marriage protection orders, to allow them to make an informed decision. 

When forced marriage protection orders were being discussed in Parliament, criminalising forced marriage was raised but this was ruled out for fear that victims would not want to have their loved ones sent to prison.  The decision to introduce criminal offences perhaps demonstrates the growing confidence the authorities have in their ability to support victims through the process and to meet their needs.

I suspect that the biggest impact of the change in law will be its deterrent effect.  Victims will still be reluctant to send family members to prison, and their priority will always be to protect themselves.  For that reason, I envisage that there will be plenty of cases where victims will not want to give evidence in a criminal court. 

However, there is still the possibility that if a forced marriage protection order has been made (and properly served), the CPS may charge someone pursuant to section 63CA for breach of such order if there is independent evidence of the breach, without the need for the victim to give evidence.

The focus of practitioners and authorities should remain the need to protect the victim.  However, the introduction of criminal offences to combat the problem of forced marriage is an invaluable tool.