Welcome to..
The National Conference on the
criminalisation of Forced
Marriage
hosted by the Police and Crime Commissioner for Derbyshire in
partnership with Karma Nirvana
Tuesday 6 May 2014, 10am to 4pm
1
Agenda
Time
9:15
Registration and refreshments
10:00
Police and Crime Commissioner for Derbyshire Alan Charles
10:05
Hardyal Dhindsa, Deputy PCC for Derbyshire (Conference Chair)
10:10
Video address from Baroness Butler-Sloss, Chair of the National
Commission on Forced Marriage
10:20
Anne-Marie Hutchinson OBE, National Commission on Forced
Marriage
10:35
Jasvinder Sanghera CBE, Karma Nirvana
10:50
Survivor Ambassador 1
11:00
Video address by Rt Hon Norman Baker MP, Minister of State for
Crime Prevention
11:10
Refreshments
11:25
Survivor Ambassador 2
2
Time
11:35
Helen Jones MP, Shadow Minister (Home Affairs)
11:50
Chaz Akoshile, Joint Head Forced Marriage Unit
12:05
Nazir Afzal OBE, Chief Crown Prosecutor for the North West of
England
12:20
Lunch
13:15
Tom Winsor, HM Chief Inspector of Constabulary
13:30
Commander Makhdum (Mak) Ali Chishty, ACPO National lead for
HBV and Forced Marriage
13:45
Breakout sessions
14:30
Refreshments
14:45
Mick Creedon, Chief Constable Derbyshire Constabulary
15:00
Plenary Q+A Panel - chaired by David Peet, Chief Executive
Derbyshire OPCC. Panel includes: Anne-Marie Hutchinson OBE, Jasvinder
Sanghera CBE, Chief Constable Mick Creedon, Deputy PCC Hardyal Dhindsa and Chaz
Akoshile, Joint Head of the Forced Marriage Unit
15:45
Joint close from Alan Charles and Jasvinder Sanghera
3
Police and Crime
Commissioner for Derbyshire
Alan Charles
The National Conference on the criminalisation of
Forced Marriage
4
Hardyal Dhindsa
Deputy PCC for Derbyshire
(Conference Chair)
The National Conference on the criminalisation of
Forced Marriage
5
Video address
Baroness Butler-Sloss
Chair of the National
Commission on Forced
Marriage
The National Conference on the criminalisation of
Forced Marriage
6
7
Anne-Marie
Hutchinson OBE
The National Conference on the criminalisation of
Forced Marriage
8
Forced Marriage
as a Criminal Offence
Anne-Marie Hutchinson OBE
Partner at Dawson Cornwell Solicitors, London, England
amh@dawsoncornwell.com
Derbyshire Police and Karma Nirvana
Tuesday 6 May 2014
A look back…

Forcing someone to marry and breaching a Forced Marriage Protection
Order will be a criminal offence in England as from 16 June 2014. So far, where
there has been an actual or threatened Forced Marriage, a number of other
offences may have been committed including kidnap and assault. In the majority
of cases, victims sought civil remedies rather than a prosecution.

Back in June 2000 in the Home Office’s report, ‘A choice by right’ and in a further
consultation in 2005 – the Government stated that it had no intention to
criminalise forcing someone to marry.
A look back…

Home Affairs Select Committee (HASC) published a report in May 2008 and a
further report in May 2011.

Government voiced its commitment in October 2011 to criminalise the breach of
Forced Marriage Civil Protection Orders and to consult on creating a specific
criminal offence of forcing someone to marry.

Further consultation published in June 2012, ‘Forced Marriage – A
Consultation: Summary of Responses’.

Now, a reminder of the arguments that were voiced for and against
criminalisation…
Criminalisation
Pros

A new criminal offence could have a deterrent effect that would reduce the
number of Forced Marriages. Robust sentencing would demonstrate that people
are being brought to account for their actions in a public domain.

An offence would send a clear signal, both within the UK and outside its borders,
that it is unacceptable to force a person to marry, that it is an action which society
as a whole condemns and that there will be consequences for perpetuators.

It could also empower young people to challenge their parents and their wider
family, as well as giving victims a stronger sense that being forced into marriage
is wrong.

A specific offence would allow a perpetrator to be punished for his or her
wrongdoing.
Criminalisation
Pros

A specific offence could make it easier for authorities such as the police, social
and health services to identify when a victim has been or might be forced into
marriage. Existing legislation may not be easily linked to Forced Marriage and
professionals may see past any warning signs.

The existing combination of criminal statutes that could be applicable to
perpetuators of Forced Marriage is confusing, leading to a lack of realisation that
a crime may have been committed.

A specific offence would also clarify the issues for law enforcement bodies so
that they are fully aware of when and how they should intervene, in turn making
their role in Forced Marriage cases more effective.
Criminalisation
Cons

Victims may stop seeking help for fear either that their family members will be
prosecuted or of the repercussions were the prosecution to fail. This fear could
arise as a result of internal pressure (such as feelings of guilt), external pressure
or both.

Victims may also be deterred from applying for a civil remedy for similar reasons.

Given the higher standard of proof required for criminal cases than in civil
proceedings and the difficulties in securing evidence (for example, from a victim
who does not wish to give evidence or where a Forced Marriage occurs abroad),
there is a risk that there would be a significant number of failed prosecutions.

As a consequence, a succession of failed prosecutions might diminish
confidence in the system from both the general public and victims’ perspectives.
Criminalisation
Cons

Victims may develop an understanding that any report made to a Government
body, even those who only seek to protect victims, will result in a criminal
investigation. This may reduce the possibility of victims coming forward for any
‘official’ assistance at all.

Rather than acting as a deterrent, perpetuators might avoid a prosecution by
finding alternative ways to force their children to marry. Victims may be sent
abroad at an earlier stage in their life and left in the destination country within a
Forced Marriage.

A prosecution, or even the risk of a prosecution, may make it harder for victims to
reconcile with family members later on, something which many victims wish to
do.
2012 Consultation
Should FM be a criminal offence?
2012 Consultation
Issues

Deal with Forced Marriage more effectively to ensure that victims’ needs are being
considered properly.

Improve training for professionals on the Government’s multi-agency practice
guidelines and the civil remedies available to victims.

Clarify distinction between forced and arranged marriage to ensure that perpetuators
do not hide behind misconceptions about what their culture and religion requires.

Provide more funding and support services, including refuges, for victims.

Increase the level of training and media campaigns, and promote more awareness in
mainstream society, including in schools, about Forced Marriage.

Apply any measures to tackle Forced Marriage to all communities to prevent
stigmatisation of a particular culture, religion or minority group.
Government’s response
“Having held a detailed consultation and listened carefully to all views, we have
decided to make forcing someone to marry a criminal offence. In doing so, we are
sending out a clear message that this practice is totally unacceptable and will not be
tolerated.
We do recognise the concerns raised by many that new criminal laws may deter
reporting of forced marriage. We will therefore ensure that we work closely with
partners to implement any legal change within the context of a broader strategy for
encouraging a sensitive and appropriate response to all potential cases, which puts
the victim centre stage.”
The Government aimed to introduce a specific Forced Marriage offence in 2013 /
2014.
The Government in the consultation also renewed its commitment to making the
breach of a Forced Marriage Civil Protection Order a criminal offence.
The (then) Anti-social Behaviour,
Crime and Policing Bill
Joint Committee on Human Rights (October 2013):
“We cautiously accept the Government’s reasoning for the criminalisation of forced
marriage. However, given the concerns expressed about criminalisation during the
Government consultation process, it is clear that careful implementation and
monitoring of the new law will be required. It is essential that criminalisation is
accompanied by additional measures to ensure that the law is effectively
implemented. There has not been a successful prosecution of female genital
mutilation since it was criminalised 28 years ago, and it appears that the practice
remains widespread, which demonstrates that criminalisation alone is not sufficient.
We therefore recommend that:

the Crown Prosecution Service develops a strategy on prosecutions of forced
marriage. In developing such a strategy, there should be consultation with
relevant stakeholders; and

the Government reports to Parliament annually on the effectiveness of the
criminalisation of forced marriage.”
New Criminal
Offences

The Anti-social Behaviour, Crime and Policing Act 2014 creates two new
offences:
 Breaching a Forced Marriage Protection Order without reasonable excuse.
 Forcing someone to marry.

These will come into effect in England on 16 June 2014.
Breach of Forced Marriage
Protection Order

New crime of breaching a Forced Marriage Protection Order without reasonable
excuse.

The provisions mirror the criminalisation of Non-molestation Orders. Breach of a
Non-molestation Order has been a criminal offence since 1 July 2007, by virtue
of section 42A Family Law Act 1996. Before then, like FMPOs, a breach was
dealt with as a civil contempt only.

We will now compare the sections of the Family Law Act 1996 making the breach
of a non-molestation order a criminal offence with the criminalisation of breaches
of FMPO following the Anti-social Behaviour, Crime and Policing Act 2014.
Breach of FMPO
A comparison with Non-molestation orders
Section 42A(1) of the Family Law Act 1996
A person who without reasonable excuse does anything that he is prohibited from
doing by a non-molestation order is guilty of an offence.
Section 120 of the Anti-social Behaviour, Crime and Policing Act 2014 inserts:
Section 63CA(1) of the Family Law Act 1996
A person who without reasonable excuse does anything that the person is prohibited
from doing by a forced marriage protection order is guilty of an offence.
Note in each case the defence of having a reasonable excuse.
Breach of FMPO
A comparison with Non-molestation orders
Section 42A(2) of the Family Law Act 1996
In the case of a non-molestation order made by virtue of section 45(1), a person can
be guilty of an offence under this section only in respect of conduct engaged in at a
time when he was aware of the existence of the order.
Section 120 of the Anti-social Behaviour, Crime and Policing Act 2014 inserts:
Section 63CA(2) of the Family Law Act 1996
In the case of a forced marriage protection order made by virtue of section 63D(1), a
person can be guilty of an offence under this section only in respect of conduct
engaged in at a time when the person was aware of the existence of the order.
Breach of FMPO
A comparison with Non-molestation orders
Section 42A(5) of the Family Law Act 1996
A person guilty of an offence under this section is liable –
(a) on conviction on indictment, to imprisonment for a term not exceeding five
years, or a fine, or both;
(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or
a fine not exceeding the statutory maximum, or both.
Section 120 of the Anti-social Behaviour, Crime and Policing Act 2014 inserts:
Section 63CA(5) of the Family Law Act 1996
A person guilty of an offence under this section is liable –
(a) on conviction on indictment, to imprisonment for a term not exceeding five
years, or a fine, or both;
(b) on summary conviction, to imprisonment for a term not exceeding 12 months, or
a fine, or both.
Breach of FMPO
Interplay with civil law

To avoid a perpetuator being punished twice, the 2014 Act provides that a
perpetuator would not be treated as being in contempt of court where there has
already been a conviction of breaching a FMPO (s. 63CA(3)).

The reverse is also true: a perpetuator cannot be convicted of a criminal offence
if that conduct has already been punished as a contempt of court (s. 63CA(4)).

Could this put pressure on victims to discontinue or avoid contempt proceedings
in the public interest?

There is a concern that the CPS may proceed with a prosecution without a
victim’s consent.
Breach of FMPO
Interplay with civil law

Worth noting the CPS’s comments in relation to breaches of Non-molestation
Orders found in the CPS Policy for Prosecuting Cases of Domestic Violence,
March 2009:
“The CPS is responsible for prosecuting the breach of such orders where the
victim calls the police and chooses to have the breach dealt with in the criminal
courts. The CPS will not be able to prosecute the breach if it has already been
dealt with as a contempt of court. However, if the CPS decides not to prosecute,
or if the offender is prosecuted but found not guilty, the victim may still ask a civil
court to deal with the breach as a contempt of court. The CPS may still prosecute
where the victim is taking other action in the civil courts.” (Pages 35 – 36)
Anti-social Behaviour, Crime and Policing Act 2014
Full text: Breach of FMPO
63CA Offence of breaching order [to be inserted into the Family Law Act 1996]
(1)
A person who without reasonable excuse does anything that the person is
prohibited from doing by a forced marriage protection order is guilty of an
offence.
(2)
In the case of a forced marriage protection order made by virtue of section
63D(1), a person can be guilty of an offence under this section only in respect
of conduct engaged in at a time when the person was aware of the existence
of the order.
(3)
Where a person is convicted of an offence under this section in respect of any
conduct, that conduct is not punishable as a contempt of court.
(4)
A person cannot be convicted of an offence under this section in respect of
any conduct which has been punished as a contempt of court.
Anti-social Behaviour, Crime and Policing Act 2014
Full text: Breach of FMPO
(5)
A person guilty of an offence under this section is liable –
(a)
on conviction on indictment, to imprisonment for a term not exceeding
five years, or a fine, or both;
(b)
on summary conviction, to imprisonment for a term not exceeding 12
months, or a fine, or both.
(6)
A reference in any enactment to proceedings under this Part, or to an order
under this Part, does not include a reference to proceedings for an offence
under this section or to an order made in proceedings for such an offence.
(7)
“Enactment” includes an enactment contained in subordinate legislation within
the meaning of the Interpretation Act 1978.”
FMPO
Undertakings

An undertaking is a promise to the court that, if broken, is a contempt of court
that may lead to imprisonment of a maximum of two years. It is not a criminal
offence to breach an undertaking.

It is often used in domestic violence cases where a victim seems a civil injunction
(such as a Non-molestation Order or an Occupation Order) against an abuser.

The abuser will confirm: ‘I understand the undertaking that I have given, and that
if I break any of my promises to the court I may be sent to prison for contempt of
court’.

The new s. 63CA that will be inserted into the Family Law Act 1996 contains
provisions that are similar (though not identical) to the provision on undertakings
with respect to Non-Molestation and Occupation Orders (s. 46 FLA 1996). Both
s. 63CA and s. 46 cite situations where an undertaking will not be appropriate.
FMPO
Undertakings
To replace subsections (1) to (3) of section 63E FLA 1996 –
(1)
In any case where the court has power to make a forced marriage protection
order, the court may accept an undertaking from the respondent instead of
making the order.
(2)
But a court may not accept an undertaking under subsection (1) if it appears
to the court –
(a)
that the respondent has used or threatened violence against the person
to be protected, and
(b)
that, for the person's protection, it is necessary to make a forced
marriage protection order so that any breach of it by the respondent
may be punishable under section 63CA.
Offence of Forced Marriage
England and Wales

New offence of forcing someone into marriage is split into two distinct limbs:
 Using violence, threats or any other form of coercion (unless where the
victim lacks capacity, in which case any conduct will suffice) to cause
someone to marry.
 Deceiving someone with the intention of causing a person to leave the UK to
be forced into marriage.

Both offences can be found in the Anti-social Behaviour, Crime and Policing Act
2014. They both attract a maximum sentence of 7 years’ imprisonment.

There are jurisdictional requirements for the offence to be committed – either the
victim or the perpetuator must be a UK national, or be present or habitually
resident in England or Wales.
Anti-social Behaviour, Crime and Policing Act 2014
Forcing a person to marry under s. 121(1)
121 Offence of forced marriage: England and Wales
(1)
(2)
A person commits an offence under the law of England and Wales 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 free and full consent.
In relation to a victim who lacks capacity to consent to marriage, the offence
under subsection (1) is capable of being committed by any conduct carried out
for the purpose of causing the victim to enter into a marriage (whether or not
the conduct amounts to violence, threats or any other form coercion).
Anti-social Behaviour, Crime and Policing Act 2014
Practising deception under s. 121(3)
(3)
A person commits an offence under the law of England and Wales 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.
Anti-social Behaviour, Crime and Policing Act 2014
Other provisions
(4)
“Marriage” means any religious or civil ceremony of marriage (whether or not
legally binding).
(5)
“Lacks capacity” means lacks capacity within the meaning of the Mental Capacity
Act 2005.
(6)
It is irrelevant whether the conduct mentioned in paragraph (a) of subsection (1) is
directed at the victim of the offence under that subsection or another person.
(7)
A person commits an offence under subsection (1) or (3) only if, at the time of the
conduct or deception –
(a)
the person or the victim or both of them are in England or Wales,
(b)
neither the person nor the victim is in England or Wales but at least one of
them is habitually resident in England and Wales, or
(c)
neither the person nor the victim is in the United Kingdom but at least one of
them is a UK national.
Anti-social Behaviour, Crime and Policing Act 2014
Other provisions
(8)
(9)
(10)
“UK national” means an individual who is –
(a)
a British citizen, a British overseas territories citizen, a British National (Overseas)
or a British Overseas citizen;
(b)
a person who under the British Nationality Act 1981 is a British subject; or
(c)
a British protected person within the meaning of that Act.
A person guilty of an offence under this section is liable –
(a)
on summary conviction, to imprisonment for a term not exceeding 12 months or to
a fine or both;
(b)
on conviction on indictment, to imprisonment for a term not exceeding 7 years.
In relation to an offence committed before the commencement of section 154(1) of the
Criminal Justice Act 2003, the reference to 12 months in subsection (9)(a) is to be read as
a reference to six months.
Some potential
difficulties

Distinguishing between an arranged marriage and a forced marriage is rarely
straightforward. Persuasing and encouraging someone to marry may become
duress if the victim does not give full and free consent, but it is often not clear.

Munby J warned in A Local Authority v N [2005] EWHC 2956 that courts should
not make the assumption that an arranged marriage is a forced marriage.
Munby J added that the courts must be alert to the religious, social and cultural
circumstances of each case.

The Government in the ‘Multi-agency practice guidelines: Handling cases of
Forced Marriage’ (2009) stated that a forced marriage occurs where duress is
involved, and that duress can include physical, psychological, financial, sexual
and emotional pressure.

Compare this to s. 121 above which refers to ‘violence, threats or any other form
of coercion’. Does emotional pressure equate to coercion? What if a parent
says to their child, ‘I really think you should marry him / her, we’d be disappointed
if you don’t.’?
Some potential
difficulties

Pressure to marry can result from a wide range of complex factors such as
immigration concerns or economic difficulties. Is it straightforward to extract from the
various factors playing on a victim’s mind the pressure which is placed on them by a
defendant?

A person commits an offence under s. 121(1) if he or she believes, or ought
reasonably to believe, that the conduct may cause the other person to enter a
marriage without consent.

But how is ‘reasonableness’ to be measured? Are we talking about the reasonable
person living within a certain sub-culture or community or the public at large? Is there
a risk of marginalising sub-cultures by imposing standards of the ‘reasonable person’
living outside that culture? Is the average person able to fully understand the
distinction between arranged and forced marriages?

Some argue that the new offence marginalises minority communities, others argue
that it protects them. The graph on the following slide shows the country of origin in
relation to cases dealt with by the Forced Marriage Unit in 2012.
FMU Statistics: 2012
Other matters…
Istanbul Convention

Convention on preventing and combating violence against women and
domestic violence (Istanbul Convention) – UK signed the Convention on 8 June
2012 but has not yet ratified it.

As at 10 April 2014, 8 States have ratified the Convention – Albania, Austria,
Bosnia and Herzegovina, Italy, Montenegro, Portugal, Serbia, Turkey. 25 States
have signed the Convention but have not ratified it.

“A majority were in favour of the creation of a new offence and the Government
concluded that criminal offences were necessary, in addition to the civil regime,
to act as an effective deterrent, to properly punish perpetrators, and to fulfil the
United Kingdom’s international obligations under the Istanbul Convention signed
in 2012.” (Explanatory Notes from the House of Commons on 16 October 2013
regarding the (then) Bill, at para. 33.)
Istanbul Convention
Article 37 – Forced marriage
1
Parties shall take the necessary legislative or other measures to ensure that
the intentional conduct of forcing an adult or a child to enter into a marriage is
criminalised.
2
Parties shall take the necessary legislative or other measures to ensure that
the intentional conduct of luring an adult or a child to the territory of a Party or
State other than the one she or he resides in with the purpose of forcing this
adult or child to enter into a marriage is criminalised.
For the full Convention, see: http://www.coe.int/t/dghl/standardsetting/conventionviolence/convention/Convention%20210%20English.pdf.
June 2012, ‘Forced Marriage – A Consultation:
Summary of Responses’
European countries criminalising Forced Marriage
European countries
criminalising FM
Source: 2012 Consultation at pages 20 and 21 –
Austria
Forcing someone into marriage is a distinct criminal offence in Austria. Austrians and
people living in Austria are facing legal consequences for such actions only if this
kind of marriage occurs within the country’s borders. From January 2012 the
Federal Government has amended the anti-forced marriage law to allow
prosecutors to press charges against perpetrators over forced marriages abroad.
Belgium
Forcing someone to marry is a criminal offence.
Cyprus
Forcing someone to marry is a distinct criminal offence in Cyprus.
European countries
criminalising FM
Denmark
The Danish Criminal Code includes an offence of unlawful coercion, prohibiting the
use of threats by a person to force another person to do something against their will.
This offence would apply to marriage if threats were used to force a person into
marriage against their will. The penalty for this offence ranges from a fine to a period
of imprisonment not exceeding two years.
Germany
Forcing someone to marry is a distinct criminal offence and can be punished by up
to five years in prison. The law also gives non-German citizens who are forced by
their husbands/families to leave the country after their marriage a legal right to
return to Germany.
Malta
Forced Marriage is illegal in Malta – marriage of convenience is also an offence
punishable by imprisonment.
Scotland

Unlike England and Wales, it was already a criminal offence to breach a Forced
Marriage Protection Order, resulting in a maximum prison sentence of 2 years
(and/or a fine).

The Scottish Parliament voted ‘overwhelmingly’ to make forcing someone to
marry a criminal offence.

In terms of the Istanbul Convention, discussed above, Minister for Equalities
Shona Robison said that:
“The Istanbul Convention was, in effect, a game changer. We know that violence
against women stakeholders are very keen for the Istanbul Convention to be
ratified, and we want Scotland to be compliant. Criminalising forced marriage was
therefore necessary to achieve this.”
(See http://news.scotland.gov.uk/News/Forced-marriage-889.aspx.)
Scotland

Emphasised the suggestion that the criminalisation of forcing someone to marry
can influence cultural change.

In terms of it deterring victims from coming forward, Mark Ballard, Head of Policy
Barnardo’s Scotland stated in their written submission to the Justice Committee
in December 2013 that:
“Additionally, as with other forms of abuse, victims may be unwilling to come
forwards and may even feel as though they do not want the perpetrator punished
by a criminal sanction. However, we do feel that by criminalising the act itself we
will begin to shift perceptions and start the drive towards cultural change that is
needed to stamp out forced marriage in Scotland.”
Source: http://news.scotland.gov.uk/News/Forced-marriage-889.aspx.
Anne-Marie Hutchinson OBE
Partner at Dawson Cornwell Solicitors, London, England
amh@dawsoncornwell.com
15 Red Lion Square, London, WC1R 4QT, England
+44 (0)20 7242 2556
www.dawsoncornwell.com