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Courts can play their part in deterring so-called ‘honour-based’ violence with a new human rights-based approach to sentencing and a re-shaped language, argues Kevin Dent
According to police records more than 11,000 cases of so-called ‘honour’ crime were reported to UK police forces from 2010-14. In one infamous case Surjit Athwal was killed by the arrangement of her mother-in-law and husband for seeking a divorce. A mother of two, Surjit was lured to India where she was murdered and her body thrown in a river – never to be recovered. Surjit’s husband, Sukhdave attempted to cover up the crime by forging letters to the Indian authorities and was sentenced (on appeal) to life imprisonment with a minimum of 20 years. Surjit’s mother-in-law, 70-year-old Bachan, was sentenced on appeal to life with a minimum of 15 years, and became one of the oldest women in criminal history to be jailed for life.
This type of crime presents a challenge for sentencing courts; the same motivation for the offending is often simultaneously relied upon by the perpetrators as a mitigating factor whilst many others view it as an aggravating feature. This article looks at the framework through which courts currently approach sentencing in such cases, then suggests a human rights-based case for sentencing guidelines to make it clear that such motivation is always an aggravating feature. It also suggests that it is time for a new way for the courts to talk about such offending that does away with the use of the word ‘honour’ entirely.
Sections 145 and 146 of the Criminal Justice Act 2003 (CJA 2003) cover ‘hate crime’ and provide a statutory basis upon which it is mandatory for courts to treat as an aggravating factor where crimes are motivated by hostility based upon race, religion, sexual orientation or disability. Although these provisions play a positive role in marking and deterring crimes of hate, only some types of ‘honour-based’ crime will fall within ss 145 and 146.
The provisions in relation to murder likewise do not explicitly or fully engage with ‘honour-based’ motivation. Under CJA 2003, Sch 21, there are specific aggravating features for a court to take into account when passing sentence following conviction for murder. Again, some cases of ‘honour-based’ motivation will fit into that, some will not.
Following convictions for the murder of Surjit, the defendants appealed. The Court of Appeal (R v Athwal & Ors [2009] EWCA Crim 789) dismissed the appeal against conviction then went on to consider the appeal against their sentences. A number of aggravating features of the offence had been identified by the trial judge in coming to the view that the appropriate sentences were life with a minimum sentence of 27 years for Sukhdave and a minimum of 20 years for Bachan:
The Court of Appeal ultimately came to the view that the age and cultural difficulties likely to be encountered by Bachan in jail were such that a minimum term of 20 years was manifestly excessive and should be replaced with a term of 15 years. So far as Sukhdave is concerned, it was held that his minimum term should be reduced to 20 years to avoid excessive disparity with Bachan’s reduced sentence.
Without seeking to criticise the ultimate determination of sentence in that particular case, what becomes clear is that the court did not expressly take into account that this was crime motivated by the desire to control the behaviour of the victim and her right to a life of her choosing. Thus, somewhat bizarrely the sentencing judge was able to take into account the intention to gain from an insurance policy but not the intention to control and punish private behaviour. However, neither the sentencing judge nor the Court of Appeal could be criticised for not taking into account such motivation because the necessary framework to do so (through either statute or sentencing guidelines) does not currently exist.
When understood within a human rights perspective, however, it becomes clear why ‘honour-based’ motivation is always an aggravating feature; such crimes are almost always violent attacks not only upon individuals but also upon those individuals’ basic human rights; their right to a lawful private life of their choosing. Article 8 of the European Convention on Human Rights states: ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’
The courts have consistently invoked Article 8 in order to uphold the freedoms of individuals to live a life of their own lawful choosing. In Botta v Italy [1998] ECHR 12 it was held that a ‘private life… includes a person’s physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings’. Private life was further defined to extend ‘to those features which are integral to a person’s identity or ability to function socially as a person’ R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, HL (per Lord Bingham at [9]).
Rather than approaching this as a narrow legalistic point as to the scope of Article 8 in relation to acts by individuals, the broader point is that the positive right to a private life in Article 8 is already an integral and important part of the law as incorporated through the Human Rights Act 1998.
It follows that, by marking offences committed in order to punish censure or discourage individuals from living a lawful life of their choosing as more serious, the courts would be doing no more or less than upholding and reasserting what is rightly described as a ‘fundamental freedom’, as defined by s 1.
The second fundamentally aggravating feature of ‘honour-based’ crime is that it has the effect of, and is often designed to, instil fear within a wider population and to prevent others from exercising those same basic human rights. Once this type of crime is understood in these terms, it is clear that such motivation will almost always aggravate an offence as it is an attack upon the basic human rights of its victims.
Until now, in England and Wales there have been no guidelines as to how courts should approach cases where ‘honour-based’ motivation is a feature. However, the Northern Irish Lord Chief Justice’s Sentencing Group has set out specific guidance in its Sentencing Guidance Note: ‘Honour-based’ Crime. In this, such crime is defined as ‘to be any offence, violent or non-violent, which has been committed for the perceived defence of the honour of the family and/or community’.
In England and Wales, it is clear that although offences with an ‘honour-based’ motive are often dealt with by severe sentences, until now such motivation itself is an almost invisible factor in determining sentence. There has been no definitive guidance as to whether the courts should regard it as an aggravating factor, a mitigating factor or a matter of irrelevance in sentencing. Without a clear and positive framework, courts are likely to continue to assess such offences without reference to what led to the commission of the offences. Guidelines would also help ensure that the court applies a consistent approach across a variety of different offences and circumstances.
There has recently been some progress in that, in May 2018, the Sentencing Guidelines Council published Overarching Principles – Domestic Abuse: Definitive Guideline which set out general principles in cases of domestic abuse. These Guidelines refer to ‘honour-based’ violence within the context of domestic abuse. They encompass: ‘Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can encompass, but is not limited to: psychological, physical, sexual, financial, or emotional.’
The Guidelines define both controlling and coercive behaviour and list a number of aggravating factors, which include abuse of trust and abuse of power. This list, however, does not include any reference to wider factors such as an attempt to instil fear or coercion within a wider group and are more suited to ‘typical’ domestic abuse such as impact on children and using contact arrangements with a child to instigate an offence.
Equally, the Guidelines cover conduct where the victim is over 16 and those perpetrated by intimate partners or family members. There must be a significant amount of ‘honour-based’ violence that falls outside of this ambit.
Also, given the level of severity and variety of many of these crimes, it seems a little awkward, even condescending, to try and fit them within the strictures of domestic abuse.
It remains to be see whether the Guidelines will be effective in encompassing ‘honour-based’ conduct and also marking such crimes for their truly aggravating features.
Instead, consideration should perhaps be given to more general guidelines applicable whenever the motivation for offending appears to ‘honour-based’. Also, such guidelines should consider carefully the language that should be used by courts when dealing with such cases.
Given the above reasons why ‘honour-based’ motivation aggravates offending, guidance should direct judges to approach sentencing in such cases in a structured staged as follows:
The sentencing guidelines could also play a role in re-shaping the language used to refer to such offending. To call offending ‘honour-based’ frames the conduct around the viewpoint of the perpetrator and then obliges those who deal with such cases (such as judges and lawyers) to adopt this terminology.
There may be other terms that better express the essence of the offending. One suggestion would be ‘violent control crime’ which expresses a key component of the offending; an intention to control the behaviour of others. Another term would be ‘crime of behavioural control’ which emphasises that same coercive element. Whatever term may be adopted, just examining these two suggestions shows the powerful role that language can play in shaping how we view this serious criminal conduct.
All things considered, although the new Guidelines on domestic abuse are a welcome development, it is high time for general guidelines through which courts and all those dealing with these cases can apply a consistent approach and language so that this offending can be seen in its true light; crime against a person’s basic human right to a life of their own choosing.
Kevin Dent is a barrister at 5 St Andrews Hill specialising in fraud and money laundering and with a strong interest in human rights.
According to police records more than 11,000 cases of so-called ‘honour’ crime were reported to UK police forces from 2010-14. In one infamous case Surjit Athwal was killed by the arrangement of her mother-in-law and husband for seeking a divorce. A mother of two, Surjit was lured to India where she was murdered and her body thrown in a river – never to be recovered. Surjit’s husband, Sukhdave attempted to cover up the crime by forging letters to the Indian authorities and was sentenced (on appeal) to life imprisonment with a minimum of 20 years. Surjit’s mother-in-law, 70-year-old Bachan, was sentenced on appeal to life with a minimum of 15 years, and became one of the oldest women in criminal history to be jailed for life.
This type of crime presents a challenge for sentencing courts; the same motivation for the offending is often simultaneously relied upon by the perpetrators as a mitigating factor whilst many others view it as an aggravating feature. This article looks at the framework through which courts currently approach sentencing in such cases, then suggests a human rights-based case for sentencing guidelines to make it clear that such motivation is always an aggravating feature. It also suggests that it is time for a new way for the courts to talk about such offending that does away with the use of the word ‘honour’ entirely.
Sections 145 and 146 of the Criminal Justice Act 2003 (CJA 2003) cover ‘hate crime’ and provide a statutory basis upon which it is mandatory for courts to treat as an aggravating factor where crimes are motivated by hostility based upon race, religion, sexual orientation or disability. Although these provisions play a positive role in marking and deterring crimes of hate, only some types of ‘honour-based’ crime will fall within ss 145 and 146.
The provisions in relation to murder likewise do not explicitly or fully engage with ‘honour-based’ motivation. Under CJA 2003, Sch 21, there are specific aggravating features for a court to take into account when passing sentence following conviction for murder. Again, some cases of ‘honour-based’ motivation will fit into that, some will not.
Following convictions for the murder of Surjit, the defendants appealed. The Court of Appeal (R v Athwal & Ors [2009] EWCA Crim 789) dismissed the appeal against conviction then went on to consider the appeal against their sentences. A number of aggravating features of the offence had been identified by the trial judge in coming to the view that the appropriate sentences were life with a minimum sentence of 27 years for Sukhdave and a minimum of 20 years for Bachan:
The Court of Appeal ultimately came to the view that the age and cultural difficulties likely to be encountered by Bachan in jail were such that a minimum term of 20 years was manifestly excessive and should be replaced with a term of 15 years. So far as Sukhdave is concerned, it was held that his minimum term should be reduced to 20 years to avoid excessive disparity with Bachan’s reduced sentence.
Without seeking to criticise the ultimate determination of sentence in that particular case, what becomes clear is that the court did not expressly take into account that this was crime motivated by the desire to control the behaviour of the victim and her right to a life of her choosing. Thus, somewhat bizarrely the sentencing judge was able to take into account the intention to gain from an insurance policy but not the intention to control and punish private behaviour. However, neither the sentencing judge nor the Court of Appeal could be criticised for not taking into account such motivation because the necessary framework to do so (through either statute or sentencing guidelines) does not currently exist.
When understood within a human rights perspective, however, it becomes clear why ‘honour-based’ motivation is always an aggravating feature; such crimes are almost always violent attacks not only upon individuals but also upon those individuals’ basic human rights; their right to a lawful private life of their choosing. Article 8 of the European Convention on Human Rights states: ‘Everyone has the right to respect for his private and family life, his home and his correspondence.’
The courts have consistently invoked Article 8 in order to uphold the freedoms of individuals to live a life of their own lawful choosing. In Botta v Italy [1998] ECHR 12 it was held that a ‘private life… includes a person’s physical and psychological integrity; the guarantee afforded by Article 8 of the Convention is primarily intended to ensure the development, without outside interference, of the personality of each individual in his relations with other human beings’. Private life was further defined to extend ‘to those features which are integral to a person’s identity or ability to function socially as a person’ R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368, HL (per Lord Bingham at [9]).
Rather than approaching this as a narrow legalistic point as to the scope of Article 8 in relation to acts by individuals, the broader point is that the positive right to a private life in Article 8 is already an integral and important part of the law as incorporated through the Human Rights Act 1998.
It follows that, by marking offences committed in order to punish censure or discourage individuals from living a lawful life of their choosing as more serious, the courts would be doing no more or less than upholding and reasserting what is rightly described as a ‘fundamental freedom’, as defined by s 1.
The second fundamentally aggravating feature of ‘honour-based’ crime is that it has the effect of, and is often designed to, instil fear within a wider population and to prevent others from exercising those same basic human rights. Once this type of crime is understood in these terms, it is clear that such motivation will almost always aggravate an offence as it is an attack upon the basic human rights of its victims.
Until now, in England and Wales there have been no guidelines as to how courts should approach cases where ‘honour-based’ motivation is a feature. However, the Northern Irish Lord Chief Justice’s Sentencing Group has set out specific guidance in its Sentencing Guidance Note: ‘Honour-based’ Crime. In this, such crime is defined as ‘to be any offence, violent or non-violent, which has been committed for the perceived defence of the honour of the family and/or community’.
In England and Wales, it is clear that although offences with an ‘honour-based’ motive are often dealt with by severe sentences, until now such motivation itself is an almost invisible factor in determining sentence. There has been no definitive guidance as to whether the courts should regard it as an aggravating factor, a mitigating factor or a matter of irrelevance in sentencing. Without a clear and positive framework, courts are likely to continue to assess such offences without reference to what led to the commission of the offences. Guidelines would also help ensure that the court applies a consistent approach across a variety of different offences and circumstances.
There has recently been some progress in that, in May 2018, the Sentencing Guidelines Council published Overarching Principles – Domestic Abuse: Definitive Guideline which set out general principles in cases of domestic abuse. These Guidelines refer to ‘honour-based’ violence within the context of domestic abuse. They encompass: ‘Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members regardless of gender or sexuality. The abuse can encompass, but is not limited to: psychological, physical, sexual, financial, or emotional.’
The Guidelines define both controlling and coercive behaviour and list a number of aggravating factors, which include abuse of trust and abuse of power. This list, however, does not include any reference to wider factors such as an attempt to instil fear or coercion within a wider group and are more suited to ‘typical’ domestic abuse such as impact on children and using contact arrangements with a child to instigate an offence.
Equally, the Guidelines cover conduct where the victim is over 16 and those perpetrated by intimate partners or family members. There must be a significant amount of ‘honour-based’ violence that falls outside of this ambit.
Also, given the level of severity and variety of many of these crimes, it seems a little awkward, even condescending, to try and fit them within the strictures of domestic abuse.
It remains to be see whether the Guidelines will be effective in encompassing ‘honour-based’ conduct and also marking such crimes for their truly aggravating features.
Instead, consideration should perhaps be given to more general guidelines applicable whenever the motivation for offending appears to ‘honour-based’. Also, such guidelines should consider carefully the language that should be used by courts when dealing with such cases.
Given the above reasons why ‘honour-based’ motivation aggravates offending, guidance should direct judges to approach sentencing in such cases in a structured staged as follows:
The sentencing guidelines could also play a role in re-shaping the language used to refer to such offending. To call offending ‘honour-based’ frames the conduct around the viewpoint of the perpetrator and then obliges those who deal with such cases (such as judges and lawyers) to adopt this terminology.
There may be other terms that better express the essence of the offending. One suggestion would be ‘violent control crime’ which expresses a key component of the offending; an intention to control the behaviour of others. Another term would be ‘crime of behavioural control’ which emphasises that same coercive element. Whatever term may be adopted, just examining these two suggestions shows the powerful role that language can play in shaping how we view this serious criminal conduct.
All things considered, although the new Guidelines on domestic abuse are a welcome development, it is high time for general guidelines through which courts and all those dealing with these cases can apply a consistent approach and language so that this offending can be seen in its true light; crime against a person’s basic human right to a life of their own choosing.
Kevin Dent is a barrister at 5 St Andrews Hill specialising in fraud and money laundering and with a strong interest in human rights.
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