R v Shortland
(1995) The Times, 23 May Court of Appeal
The facts of the case, taken from the judgment of LORD JUSTICE KENNEDY, were that between June and November 1993 the Shortland signed two application forms for passports, one a visitor's passport and one a 10 year passport, in the false name of Valerie Lopez, a dead child whose birth certificate Shortland's husband had obtained. Shortland admitted that she had signed both passport applications but asserted that she did that under coercion from her husband.
Section 47 of the Criminal Justice Act 1925 provides, "Any presumption of Law that an offence committed by a wife in the presence of her husband is committed under the coercion of the husband is hereby abolished, but on a charge against a wife for any offence other than treason or murder it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband."
To invoke a defence of marital coercion, it was necessary for a defendant to prove, on a balance of probabilities, that the offence was committed as a result of her will being overborne by the wishes of her husband, so that she was forced unwillingly to participate in the offence. That defence did not necessarily require proof of physical force or the threat of physical force.
The ground of appeal was that an inappropriate direction was given as to the defence of marital coercion. In the judgment of the court the formulation used in R v Gary Richman and Ann Richman [1982] Crim LR 507 by Judge Gabriel Hutton at Bristol Crown Court was appropriate: "Coercion did not necessarily mean physical force or the threat of physical force, it could be physical, or moral. She had to prove that her will was overborne by the wishes of her husband ... coercion was different from persuading someone out of loyalty. . ."
Unfortunately in the present case, the trial judge, in summing up. did not distinguish between duress and coercion as he should have done. That amounted to a material misdirection as
it was the only defence being run in the case.
The Court allowed the appeal against conviction of two offences of making a false statement to procure a passport for which she was sentenced to a conditional discharge for two years, concurrently, on each count.
Comment
At common law there was a rebuttable presumption that a wife who committed an offence, excluding murder or treason, in the presence of her husband did so under coercion and she should be acquitted.
This presumption was abolished but it remained a defence for her to prove coercion (on the balance of probabilities).
The Law Commission has recommended the abolition of coercion, see (Law Com. No. 83 and Law Com. No. 218, para 32.6).
Can such a concept stand in today's society, or are we prepared to admit that life hasn't changed that much. In R v Gary Richman and Ann Richman, supra, where a wife was convicted after claiming coercion, the learned judge commented that coercion dated from earlier times and modern wives are not like saxon wives.
For a recent case on Duress, see R V Pommell, Court of Appeal, The Times, 22 May 1995.
Rob Jerrard