On 16 June, sections 120 and 121 of the Anti-social Behaviour, Crime and Policing Act 2014 relating to forced marriage in England and Wales came into force under the Anti-social Behaviour, Crime and Policing Act 2014 (Commencement No. 2, Transitional and Transitory Provisions) Order 2014 SI 949.  The new provisions supplement the civil remedy of Forced Marriage Protection Orders under the Forced Marriage (Civil Protection) Act 2007, and create a criminal offence of forcing someone to marry which includes:

• taking someone overseas to force them to marry (whether or not the forced marriage takes place);
• marrying someone who lacks the mental capacity to consent to the marriage (whether they’re pressured to or not).

Breaching a Forced Marriage Protection Order remains a criminal offence and can result in a custodial sentence of up to 5 years.  Forcing someone to marry can result in a sentence of up to 7 years in prison. In 2013, the government’s Forced Marriage Unit dealt with 1,302 cases:  82% of victims were female and 18% male, 15% were under the age of 15.  These involved 74 different countries: 43% relating to Pakistan; 11% to India; and 10% to Bangladesh.

The new provisions

The Commencement Order brings into force two of the three new provisions within Part 10 of the 2014 Act.  Section 120 creates an offence of breaching a forced marriage protection order, modifying the courts’ existing powers in this area under Part 4A of the Family Law Act 1996, s63A to 63S. A person convicted of an offence for the breach of a forced marriage protection order under the new section 63CA of this amendment to the 1996 Act  will now be subject on indictment, to imprisonment for a term not exceeding five years, or a fine, or both; or on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine, or both; and will no longer be punished for contempt of court.

Section 121 creates an offence of forced marriage under the law of England and Wales, to a person who: uses violence, threats or any other form of coercion for the purpose of causing another person to enter into a marriage; and 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 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).

Furthermore, a person also commits an offence if he or she: practises any form of deception with the intention of causing another person to leave the United Kingdom, and intends the other person to be subjected to conduct outside the United Kingdom that is an offence as above or would be an offence under that subsection if the victim were in England or Wales.

A person commits an offence in relation to a victim having capacity only if, at the time of the conduct or deception: the person or the victim or both of them are in England or Wales; 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 neither the person nor the victim is in the United Kingdom but at least one of them is a UK national.

Section 122 creates an offence of forced marriage under the law of Scotland, and contains similar conditions to section 121.

Devolutionary provisions

Following the Bill’s introduction in the House of Lords, the Scottish Parliament adopted legislative consent motions in relation to forced marriage inter alia under the Sewel Convention [1]^.. Under section 185(6) of the Act, section 122 relating to forced marriage in Scotland will come into force on the day appointed by the Scottish Ministers by order.  Forced Marriage Protection Orders are currently available through the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011.

The Act does not apply to Northern Ireland, although Part Two of the Department of Finance and Personnel’s “The Right to Choose: Statutory guidance for dealing with forced marriage” is issued as statutory guidance under paragraph 13 of Schedule 1 to the Forced Marriage (Civil Protection) Act 2007.  The document also contains the useful clarification

“There is a clear distinction between a forced marriage and an arranged marriage. In arranged marriages, the families of both spouses take a leading role in arranging the marriage but the choice whether or not to accept the arrangement remains with the prospective spouses. In forced marriages, one or both spouses do not (or, in the case of some vulnerable adults, cannot) consent to the marriage and duress is involved. Duress can include physical, psychological, financial, sexual and emotional pressure.”

Forced marriage legislation and the ECHR

The Explanatory Note to the Bill [2] includes a Supplementary Memorandum by the Home Office, (Annex A), on the application of the ECHR to the provisions, and in particular the amendments to clause 119 modify the criminal offence in subsection (1) so that, in the specific case of a victim who lacks the capacity to consent to marriage, the offence can be committed by any conduct carried out for the purpose of causing the victim to enter into marriage, even if that conduct does not amount to violence, threats or any other form of coercion.  Equivalent amendments are made to the Scottish offence in clause 120 [3]. [These now form sections121(2) and 122(2) of the Act, respectively].

With regard to Article 12 and the right for men and women of marriageable age to marry, according to the national laws governing the exercise of this right, the Note cites R (o.a.o. Baiai and ors) v SSHD (2008) All ER (D) 411, in which the House of Lords confirmed that although the right to marry is a strong and fundamental right, contracting states may impose proportionate restrictions on the right to marry in pursuit of legitimate aims.  Hamer v United Kingdom (1979) 24 DR 5; (1979) 4 EHRR 139 is authority for the proposition that generally it will be a matter for national law to decide on such matters as capacity to marry, and the relevant formalities for marriage, including rules concerning capacity to marry.

A marriage is already voidable under s12 Matrimonial Causes Act 1973 on the grounds that a party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind, or otherwise.  The amendments take the approach a stage further by criminalising conduct carried out for the purpose of causing a person to marry where they lack the capacity to do so.

In the context of Article 8, R (o.a.o. Quila) v SSHD (2010) 1 FCR 51 established that the problem of forced marriage is a real one, which has a self-evident negative impact on victims. Burnett J found that the problem of forced marriage is a substantial one, and one which is under-reported.

Government recognised that these amendments may interfere with Article 12 but was of the view that any such interference: is in the pursuit of a legitimate aim; namely protecting those who lack the capacity to consent to marriage from being caused to enter into a marriage where they are unable to make this decision for themselves; is necessary because the evidence considered by the indicates that the current system in section s12 Matrimonial Causes Act 1973 is insufficient; and is proportionate, because of the way in which the mental element.  It further noted that in accordance with the code for crown prosecutors, a prosecution will only take place where it is judged to be in the public interest.

Very similar considerations arise when the issue is considered by reference to Article 8 and Government is of the view that materially the same as the arguments arising under Article 12.

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[1] The Sewel Convention provides that Westminster will not normally legislate with regard to matters which apply to Scotland and have a devolved purpose or alter the executive competence of the Scottish Ministers, without the consent of the Scottish Parliament.

[2] The Explanatory Notes refer to the Lords amendments to the Anti-social Behaviour, Crime and Policing Bill as brought from the House of Lords on 27 January 2014.

[3] All Bill documents are available here.