THE BLOG

A Better Hearing...

16/05/2013 13:07 BST | Updated 15/07/2013 10:12 BST

The commentary that can now take place following the release of Vicky Pryce should include discussion about whether the dash of sexism in court might have undermined a potentially sensible modern defence for other husbands and wives.

Pryce perverted justice by taking her partner's speeding points, although she claimed that she was coerced by him and did it unwillingly. Arguments about power and coercion in domestic relationships involving abuse and violence frequently surface in criminal courts. My fear is that the experience and understanding from such cases may not have been applied in the Pryce case.

Only women can use the 1920s defence Pryce deployed to say that she committed a crime only because her husband coerced her and was present to make her do it. Most recently, it was used by a woman called Fitton who was acquitted of drunk driving because her partner coerced her into driving when he was too drunk himself. Clearly, if the defence is a good one, the law must be changed to grant it to men as well as women and to partners, straight and gay, and not just to married couples.

There is already a principle in criminal law that someone who commits a crime only because they were made to - because their will was overpowered - is not guilty. Outside marriage this is called the defence of duress and only applies if threats to kill or cause serious harm are used as coercion. Pryce's defence of marital coercion needs only that the partner was there and made her do it, whatever the the ammunition he used to pressure her.In both cases, the defence is that there was no choice but unwillingly, to take part.

These days, the defence of duress, outside marriage, can be used where the threat is of psychological harm, not only of physical hurt. I once successfully defended a women on sexual abuse charges because she had long been in the psychological grip of the man who had groomed her for sex when she was a child and then used her as a cover whilst he groomed other children. She was practically his prisoner, terrified to say no to anything he wanted, although he was rarely violent.

In Northumbria, the Chief Constable and I recently launched a campaign called "Are You Walking on Eggshells" to point out that domestic abuse is not limited to violence. Refusing to let the partner see friends, taking her money, phoning and texting all the time she is out, telling her she is useless are now recognized as very undermining of the victim, whether done by a man to a woman or the other way round. It causes deep misery, sometimes serious psychological damage and undoubtedly saps the will, at least to leave and, often, to take any separate action at all.

In domestic violence homicides, both men who kill women and women who kill violent men have relied, in partial defence on psychological abuse of one kind or another, imposed by the partner. In women's cases it may have been "Battered woman syndrome" ; in men's a possessive jealous syndrome caused by provocative conduct. Whether we like these or not, the courts have let them be considered as severely diminishing criminal responsibility, for killing.

In all these diverse cases, domestic power relations have been recognized by the courts as capable of impacting,one way or another, on criminal responsibility. But it seems in this case that the court didnt make the same link. It seemed dumbfounded by the fact that this defence is only for women into thinking that it could only succeed if the woman is weak. Vicky Pryce, on the face of it, is anything but weak.

The point of a modern defence of marital coercion surely would be the special knowledge of personal vulnerability known about someone by their intimate partner. Whereas a stranger would need threats to kill or do injury to make someone commit crime, intimate partners know what makes the other afraid, know their insecurities, their emotional pressure points and thus hold all the keys to overpowering the will. It isn't the weakness of the coerced partner that should be measured, it is whether intimate knowledge was used to manipulate him or her into offending unwillingly.

By seeing the defence of marital coercion as a legal hangover from a bygone age the court seemed to miss this essential. Add a dash of judicial sexism, as demonstrated in the sentencing language, a small measure of resentment at a clever women's entitlement to be both successful yet using this defence and we may have seen the criminal courts, which are otherwise better these days at tackling gendered crime, falling into outdated ways.

This defence, amended to include men and non-married partners, recognises, as the law does elsewhere, the potentially compelling force that intimate relationships can have on criminality. It deserves a place in modern criminal justice - and a better hearing than it got in the Huhne-Pryce case.