Clause 44. — (Abolition of presumption of coercion of married woman by husband.)

Orders of the Day — Criminal Justice Bill. – in the House of Commons on 20th November 1925.

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Photo of Mr Walter Greaves-Lord Mr Walter Greaves-Lord , Lambeth Norwood

I beg to move to leave out the Clause.

I do so because the Clause, as I understand it renders ineffective a defence which a married woman has had on a charge of crime for something like 300 years. That right ought not to be taken away from those who may be charged with a crime or from any defence which they may have to such charge. There are one or two very strong objections to this Clause as it stands. I think it is necessary, first of all, that the House should understand exactly what is the position of the law at the present time. It is very simple and can be put very shortly. If a married woman commits a theft or receives stolen property, knowing the property to be stolen, in the presence of her husband, she is presumed to have acted under his coercion, and such coercion excuses her act. But this presumption may be rebutted if the circumstances of the case show that, in point of fact, she was not coerced. That only applies, first of all, to theft or the receipt of stolen property; it does not apply to high treason or murder, and it is doubted whether it applies to robbery from the person, although Mr. Justice Stephen held that it did; it applies to the uttering of counterfeit coins and it applies to misdemeanours. Some trouble arose on this question because, a few years ago, in a trial which caused a certain amount of excitement, the learned Judge withdrew from the jury the case against a married woman who was charged along with her husband with defrauding some bookmakers on the ground that there was no evidence that she had not acted under the coercion of her husband. The learned Judge later expressed the opinion that she did not act under the coercion of her husband, presumably on the ground that the circumstances of the case showed that she did not in fact act under the coercion of her husband. Decisions of that kind may create unfortunate precedents. At any rate, the excitement which arose over that case resulted in the appointment of a Committee, over which Mr. Justice Avory presided, and that Committee made the recommendation that the defence of coercion should be taken away altogether from a married woman, and that she should be left to the other portion of the law which gives a right to anyone to be excused of crime if the crime is committed—the crime being short of murder—under an immediate threat to kill or to cause grievous bodily harm.

Everybody will realise that there is a very wide area of compulsion between an act committed under an immediate threat to kill or cause grievous bodily harm and an act which is not committed under any kind of compulsion at all. When dealing with the relation of husband and wife one can realise what very wide powers of coercion a husband may have which fall short altogether of a threat to kill or cause grievous bodily harm. I am one of those who take the view that that defence should not be taken away from a married woman. On the other hand, I can understand the point of view of those who say it should be taken away altogether. But this Clause neither carries out the recommendations of the Committee nor leaves the woman with any effective defence. It is drafted, I suppose, as a sort of half-way house; in fact, the result of it is to preserve the defence for those women who are not coerced, but to take it away entirely from those women who are. This would be the position under the Clause if it were enacted. The presumption is taken away, and then it is stated that the woman may have—the language is a little peculiar, and I will read it: It shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband. I ask the House to consider the class of case that may and does arise. Take the case of a woman who has committed such a crime as theft, or the receipt of stolen property, under the brutal coercion of her husband, brutality which may fall very far short of either a threat to murder or to cause grievous bodily harm, but which will be none the less effective and brutal because it falls short of that. That woman is arraigned and charged with the offence of receiving stolen property or of theft. If this Clause were passed she could only establish her defence by proving the guilt of her husband in the witness box, and how many women are there who have been coerced like that, who dare go into the witness box in order to convict the very persons under whose coercion the woman had committed the crime? No woman would dare to go into the witness box under those circumstances, and consequently the woman who had been coerced would inevitably be convicted. If you take the woman with a strong mind and who had been able to induce her husband to take part in a crime, she would not hesitate to say in the witness box that her husband had coerced her, and she might even persuade a jury that she had been coerced and might get off.

Take the case where the husband and wife are equal partners in the crime. There is an old practice amongst a certain class of prisoner under which, if it is not possible for both of them to get off, they arrange for the one to get off that is best able to look after the business. Now, if the husband and wife were equal partners in crime, the husband might say, "There is no defence open to me." It is easy for him to say in the witness-box to his wife, "I coerced you," and he would do this in order that his wife might go back and carry on the business. Under these circumstances it is clear that this Clause does preserve a defence for those who really ought not to have it, but it deprives the coerced woman of the defence of coercion altogether, because she cannot go into the witness-box to prove it.

There is another point I would like to raise. At the present moment a wife is not a compellable witness against her husband. If this Clause passes into law, in a case where there has been some measure of coercion the wife, to establish that defence, would have to go into the witness-box, and there she could be asked questions which, but for this Clause, she could not be asked. Under these circumstances I think the proposal is a very serious inroad upon the defences of married women which should not be lightly taken away from them. This Clause infringes a very important principle of our law, which is that the whole onus in a criminal prosecution should be on those prosecuting, and no onus should rest upon the defence. As the law stands now, the whole onus is upon the prosecution, but if this Clause is passed you will shift the onus which has rested on the prosecution for hundreds of years. This is a very serious step, and it is one which I hope this House will not sanction. It is very difficult to understand what justification there can be for it. From the fact that none of the women's organisations who talk so much about the rights of women have taken any very great interest in it, it would appear either that they do not take notice of the things that really matter, or that they think this is one of the opportunities of putting men and women on an equal footing. Personally, with the hon. and learned Member for South-East Leeds (Sir H. Slesser), I am conservative enough to believe that no inroads should be made upon the safeguards which exist for the preservation of liberty, and I am conservative enough also to feel that you should make no inroads upon those matters which concern, and concern very deeply, the conditions which arise under the relationship of husband and wife. I venture to think that this Clause, if passed, would bring about a very serious defect in our Criminal Law. and I do appeal to the Government not to press it, but to allow it to be taken out of the Bill, so that this defence which has existed for so long may still be retained by the women of the country.

Photo of Mr James Cassels Mr James Cassels , Leyton West

I beg to second the Amendment.

I do so for reasons slightly different from those given by my hon. and learned Friend the Member for Norwood (Mr. Greaves-Lord). I do so because this Clause is not in accordance with the recommendations of the Committee which was appointed to consider this matter and which went very seriously into the whole case of coercion of married women and made a very definite recommendation. Upon that Committee, sat those who knew a great deal about the Criminal Law and they came to a unanimous decision, and their recommendation was to abolish the whole doctrine of coercion by the husband as a defence of the wife, leaving her on the same footing as other people, free to establish any defence of that kind of compulsion—the fear, not the threat as my hon. and learned Friend mentioned just now, of immediate death or grievous bodily harm—which affords a defence to any person except in the ease of certain specified crime. If that recommendation were put into the Clause, it would be in accordance with prevailing judicial opinion upon the matter. The fact that this doctrine is 300 years' old in my opinion presents ground for its continued preservation in these days when we are many years after the passing of the Married Women's Property Act, and a few years after the passing of the Sex Disqualification Removal Act. We live in times when every woman thinks that she is at least if not more than the equal of any man. She should take her full responsibility for anything that happens and be equal in all matters, not only innocent matters but criminal matters as well. For these reasons, I would prefer to see the recommendation of the Committee put into the Bill rather than the Clause as it now stands.

Photo of Mr Thomas Inskip Mr Thomas Inskip , Bristol Central

This is no doubt a somewhat technical matter, but it is much better that the House should deal with it not as a matter of technical or legal interest, but as a matter of substance, and I think the House should not regard it with any apprehension or as one which only lawyers can be expected to understand and discuss. I propose to ask the House to consider it as a matter of substance and hon. Members to address themselves to it as sensible men of the world. I do not think that there would be any quarrel or difference between my hon. and learned Friends and myself as to what is the law, though I respectfully think that my hon. and learned Friend the Member for Norwood (Mr. Greaves-Lord) who moved the Amendment did not quite accurately state it. I think it would be of interest if I read the passage from the Report of Mr. Justice Avory's Committee—

Photo of Mr Walter Greaves-Lord Mr Walter Greaves-Lord , Lambeth Norwood

May I tell the learned Solicitor-General that the statement of the law which I gave, I read from the "Digest of Criminal Law," by Sir James FitzJames Stephen?

Photo of Mr Thomas Inskip Mr Thomas Inskip , Bristol Central

I do not know where my hon. and learned Friend got it, but I take it that the House will probably desire that there should be no difference of opinion on a purely legal question, and I think it would probably accept the statement of the law, which is quite short, which was drawn up by Mr. Justice Avory's Committee, on which the late Sir Richard Muir, Sir Travers Humphreys, and the Director of Public Prosecutions himself, as well as other learned judicial persons, sat. If the House will allow me to read this statement, it will be in full possession of the law as it stands to-day. The statement is this: In the case of crimes committed by the wife in the presence of her husband the presumption of coercion which excuses the wife has no application to the crimes of murder or treason, but is held to apply to all other felonies and to all misdemeanours. My hon. and learned Friend limited it to a narrower class of crime. The doctrine of coercion as applied to such crimes committed by the wife in the presence of the husband only raises a prima facie presumption, which is capable of being rebutted in all cases by the evidence, and if it should appear in any particular case that the wife has done some independent act from which the inference can be drawn that she was acting voluntarily and not under the coercion of the husband, the case against her must be left to the jury to determine whether she was in fact acting voluntarily or under his coercion. As, I think, everyone will remember, the public were shocked by a notorious case in which the learned Judge stated to the jury that he was of a certain opinion as to the degree of moral guilt attaching to one of the persons charged, but had to direct the jury that, owing to this presumption of coercion, the case against her would have to be withdrawn. It was arising out of that case that the Committee was set up. There are three courses possible. One is that the old presumption should continue. I suppose we shall all be agreed, however, that it is now too late in the day to allow such a strange presumption as that to prevail in a Court of law, because the same consequences may happen again as happened in the notorious case to which I have referred. The second possible course is to abolish the presumption, and leave the wife to do what any of us might do if he were charged with some crime, and say that she did not do it with any evil intent, but acted under absolute compulsion, which imports some fear of bodily harm—something in the nature of physical compulsion. That is a defence which is open to anyone charged with a crime. I understand that my hon. and learned Friend who seconded the Amendment would prefer that course, that is to say, that the presumption should be abolished altogether, and that the wife should be left in the same position precisely as any of us or any other subject.

The third course is that adopted in the Bill, namely, to say that we will abolish the purely technical, legal presumption, but leave it open to the wife to establish, not merely the defence that she was compelled—that is to say, was driven to commit the crime by fear of bodily, physical injury—but to satisfy the jury that she was in fact coerced. That gives her a rather wider and more extended line of defence than pure compulsion, because coercion imports coercion in the moral, possibly even in the spiritual, realm, whereas compulsion imports only something in the physical realm. I respectfully suggest to the House that most hon. Members will think that, while women in these days are, as my hon. and learned Friend has said, in all respects the equals and in many respects the superiors of all of us, yet at the same time I hope that the sense of a woman's particular qualities will not blind us to the desirability of leaving it open to her to convince a jury, if she can, that she committed a crime, not, perhaps, under actual threats of physical violence, but at any rate under such moral and spiritual compulsion in point of fact as is properly described by the word "coercion."

Now there comes the question that, as my hon. and learned Friend the Member for Norwood said, it would be very hard in some cases to satisfy a jury, and he also suggested that some bold woman, who might in fact have coerced her husband, might go into the box and say that she was coerced, and so secure her acquittal. I think that is to give British juries credit for very little common sense. I think most English juries would be capable of deciding whether or not a woman was in fact coerced by her husband. That is the issue for the House. This is not a legal technical question at all. It is quite void of any technicalities. It is simply whether we shall give a wife who is charged with a criminal offence a slightly extended form of protection which is not available to the members of the general public. That is not the proposal that commended itself to Mr. Justice Avory's Committee, who thought a wife should be placed in precisely the same position as anyone else, that is to say, defend herself by saying she had been driven to the crime by threats of physical violence. That is not a proposal which the Government can adopt, and I hope the House will think the Government have taken the sensible and humane course.

Photo of Sir Ellis Hume-Williams Sir Ellis Hume-Williams , Bassetlaw

As I read the Clause it gives protection to the wife when she is able to plead that she is acting under the coercion of her husband, but it is only a defence if she commits the crime in the presence of the husband, so that the husband may have brought all sorts of coercion to bear upon her, he may say, "if you do not go round the corner and steal a purse I will shoot you." but it is no defence unless he is actually present when the theft took place. Is that intended?

Photo of Mr Thomas Inskip Mr Thomas Inskip , Bristol Central

No doubt the case my hon. and learned Friend puts would come under the ordinary defence of compulsion—physical violence.

Photo of Sir Ellis Hume-Williams Sir Ellis Hume-Williams , Bassetlaw

According to the Bill, the compulsion which is exercised by the husband upon the wife is no defence unless he was present when she committed the theft.

Photo of Mr Thomas Inskip Mr Thomas Inskip , Bristol Central

I am afraid I have failed to make it plain. The defence of compulsion docs not depend upon this Clause. That is a matter of physical violence. This proposal is a slightly extended defence. She may prove that she was coerced. It is something more than physical violence. That extended defence only applies to cases where the offence is committed in the presence of the husband. I think there is good reason for that because it might be said, "whatever coercion in the moral or spiritual realm was employed, at any rate while you were not in your husband's presence you ought to be humane enough to be able to avoid that spiritual or moral coercion." When the woman is still in the husband's presence the influence of moral or spiritual terror is very potent indeed.

Photo of Sir Ellis Hume-Williams Sir Ellis Hume-Williams , Bassetlaw

But the coercion ceases to exist when the husband is not present.

Photo of Mr John Rawlinson Mr John Rawlinson , Cambridge University

I think the illustration we have just heard across the Floor of the House shows how important this alteration in the law is. As the Solicitor-General has said quite fairly, there are three courses open to us to pursue. Another great statesman said the same thing on a previous occasion. You may keep the law as it exists at present. Except my hon. and learned Friend the Member for Norwood (Mr. Greaves-Lord) I do not think anyone is in favour of that. I am in favour of altering the criminal law, as the House knows, and though this doctrine may be said to be 300 years old it has been altered frequently in various ways since that time, and certainly since I first began to lecture on law 40 years ago I always understood that that was one of the anomalies of the law which was to come to an end very soon, namely, that because an offence is committed by a woman in the presence of her husband therefore she is acting under his coercion and should be acquitted. That is the course I am going to advocate and I have an Amendment down for the purpose. The second course is to say that a married woman should be put in exactly the same position as any other citizen, and should be enabled to make the defence that she has acted under the compulsion of her husband or of anybody else but not under coercion. There is a real difference between compulsion and coercion. The third way of dealing with it is the way in which the Bill deals with it. I press very strongly upon the Government that that should be amended.

There is no sort of ground for treating a married woman in this matter in any way different from any other member of the community. Take the case of a man living with a woman to whom he is not married. Is the coercion which is likely to be exercised any less than in the case of a man who is married to a woman? Take a case where a man or a woman, a parent, instigates a child or some other relation to commit a crime. Is there any less likelihood of coercion in that case than there is between a man and wife? On the face of it, it is ridiculous to suggest that there is any real difference. So far as coercion is concerned, one may call to mind the case of wives and husbands among our acquaintances. If one found that crime had been committed by both of them in the presence of one another, and if one had any presumption, one would be inclined to say that the probabilities were that the husband was acting under the coercion of the wife rather than otherwise. The married Woman's Property Act and the Sex Disqualification Removal Act have been mentioned, but long before they existed there was no sense in this particular law. I ask that it should be abolished altogether, and that a married woman should be put, for the purposes of defence, in exactly the same position as any other citizen.

That is the recommendation of the Committee presided over by Mr. Justice Avory. There is nobody except, perhaps, Sir Harry Poland who has had greater experience of the criminal law than that learned Judge. That being so, why do not we accept this definition? It comes from experienced lawyers, and it is good sense. Can hon. Members imagine anything more ridiculous than to suggest that there should be a power given to a wife to say, "I acted under the coercion of my husband," which is not allowed to any other human being to say in respect of anyone else? The Bill proposes to do this. If you can say that a crime is committed by a wife in the presence of her husband—it only applies to those cases and there are very few cases to which that does apply, because there are very few cases where a person commits one of these crimes in the presence of the husband, it is open for the wife to call evidence to show that she acted under the coercion of her husband. What is the definition of coercion here? I have no idea. An hon. Member opposite said there was not much difference between coercion and compulsion, but there is, legally, a great difference. What will the woman have to prove when she says that she acted under the coercion of her husband?

What is coercion? We have been told that it is something spiritual. Let us take it in real life where you have two people, a husband and wife, who enter, say, a draper's shop, and the husband steals an article which the wife puts into her bag. They are both charged with stealing. After the wife has been in the box she goes into the dock to prove that she acted under the coercion of her husband. What has she to prove under the Amendment? The husband says, "Let us go along and get something. There is nothing in the larder." How is she to be cross-examined The difficulty of putting a woman into the box to prove that she acted under the coercion of her husband is, to my mind, insuperable. Apart from the technical difficulty of giving effect to the Bill in its present form, this defence of coercion puts a married woman in a different position from any other woman, for instance, a woman living in adultery with a man or with a parent, and so on. This is not the proper course to take. The proper solution would be to do what Mr. Justice Avory's Committee suggested, and make no difference between married women and other citizens, but leave the matter to be determined according to common law.

Photo of Mr Thomas Shaw Mr Thomas Shaw , Preston

I do not pretend to any knowledge of the law but I think that the Clause of the Government is better than either of the Amendments. I notice that the Mover and Seconder of the Amendment show that extremes do sometimes meet, for while the Mover wants the law to remain as it is so that the wife, when married, is the chattel of her husband— the law that made the husband responsible for a wife was the law which existed in the days when a woman after marriage possessed no liberty—the Seconder of this Amendment seconds because he wants a woman to have, as it were, full liberty in every way, and to be treated absolutely apart from her husband. The Mover wants the rejection of the Clause so that the husband may be responsible, and the Seconder wants it because he wants the wife to be responsible, so that extremes do meet. What is there wrong after all about the Clause? In the first place it says that the woman shall be responsible for her actions, but it also says that, if those actions are due to coercion, in certain circumstances it shall be a good defence if that coercion can be proved. There are judges and juries who are able, I suppose, to determine whether the evidence given has shown that a woman has acted not of her own volition but under coercion. It is impossible to lay down in words everything that may happen. Was there ever an Act of Parliament that provided for every eventuality? Was there ever an Act of Parliament so drawn that it might not lead to litigation? If we had an Act of Parliament under which there was no litigation, that would meet the case of the right hon. and learned Gentleman.

Photo of Mr John Rawlinson Mr John Rawlinson , Cambridge University

I would not like it at all.

Photo of Mr Thomas Shaw Mr Thomas Shaw , Preston

All Acts of Parliament have to be administered, and there are difficulties and differences of opinion as to every Act of Parliament. Will this Clause do anything that is worse than the ordinary position under any Act that we have? I claim that it will not. Surely in common sense it is a perfectly easy thing for a judge or jury to determine whether, in given circumstances, a married woman has acted on her own volition and committed a crime, or has committed it under coercion. Whilst one can recognise the absolute right of a woman to equality before the law, one has also to realise the facts of actual life. Everyone knows that crimes have been committed by women under the coercion of their husbands. This Clause gives the wife who has been wronged in that way an opportunity of proving to judge or jury, or both, that that is the fact. If the fact be demonstrated, then the person really responsible can be dealt with, and the person who has acted under coercion can be allowed to go free. I shall vote in favour of the Clause in the Bill. I think it would be rather a reflection on judges and juries to suggest that they do not know what coercion is and that they have no idea whether a woman committed or did not commit a certain crime under coercion.

Photo of Mr Godfrey Locker-Lampson Mr Godfrey Locker-Lampson , Wood Green

May I respectfully make an appeal to the House (c give us this Bill to-day? I understand that the pressure of business is such that unless we get this Bill to-day it will very likely have to be sacrificed. Therefore, I hope that the House will allow us to have the Report stage and Third Rending. The Home Secretary has given up two of the contentious Clauses altogether — those dealing with Grand Juries and with search—and he has made a great many other concessions. The first 10 Clauses of the Bill deal with probation, about which the whole House is unanimous.

Captain BENN:

I can assure the Under-Secretary that those of us on these benches, although we take exception to some parts of the Bill, see a great deal in it that we wish to have passed into law. But that does not in the least mean that the Bill should be passed without proper discussion. Moreover, there is ample time for its discussion on future days, if the Government are willing to adjust their programme accordingly. It is because the Government want to reserve future days for Bills towards which we do not show the same benevolence that they ask us to hurry now. I am afraid that we cannot pass the Bill without due discussion.

Photo of Mr George Garro-Jones Mr George Garro-Jones , Hackney South

This is another example of the lack of forethought displayed by the Government when they fixed the re-assembly of Parliament for 16th November after a vacation of over three months. It does not appear to be a sound argument for passing this Bill to say that if we do not pass it to-day we shall not pass it at all. In passing a Bill I want to know about what I am voting. The particular Clause we are discussing now offers a great deal of scope for discussion. It seems to have been very badly drawn. A Clause which includes the expression "within the presence of and under the coercion of her husband" has not been drawn with any regard to leading cases. Let me give one or two examples. Take the case of crimes which extend over a long period of time or crimes of a double nature. Take the case of a wife convicted of drunkenness while in charge of a motor car. Supposing the husband were present when she became drunk, and absent when she was in charge of the motor car. There are scores of cases of this kind in which it would be absolutely impossible for a, jury to come to a decision on the basis of this Clause. The old presumption in law led to quite sufficient litigation, but this proposed new state of the law would lead to endless litigation. I did not follow the right hon. Gentleman the Member for Preston (Mr. Shaw) when he said that it was impossible to make a law absolutely watertight. He appeared to argue from that that it was unnecessary to make laws as watertight as possible, but every Clause which we pass should be made as watertight as possible. In spite of the fact that we may risk having to take time from other Measures. I hope the House will discuss this Bill and refuse to pass it until it is amended in this respect.

Question put, "That the words proposed to be left out to the word ' but,' in line 19, stand part of the Bill."

The House proceeded to a Division.

Mr. F. C. THOMSON and Lord STANLEY were appointed Tellers for the Ayes, but no Members being willing to act as Tellers for the Noes, Mr. DEPUTY-SPEAKER declared that the Ayes had it.

The following Amendment stood on the Order Paper in the name of Mr. EAWLINSON: In page 35, line 19, to leave out from the word 'abolished' to the end of the Clause.

Photo of Mr John Rawlinson Mr John Rawlinson , Cambridge University

In view of the position which the Bill stands, I do not propose to move this Amendment, but I hope the Government will consider it in another place.

Captain BENN:

I beg to move, "That further consideration of the Bill, as amended, be now adjourned." I do so in view of the absence of any representative of the Department.