So-called ‘honour-based’ violence 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. Simply put, the essential aggravating feature is that such crimes are really and fundamentally violent crimes of behavioural control; seeking to censure punish and discourage people from enjoying a private life of their own lawful choosing. This article 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.
Such cases are amongst the most chilling that the courts encounter, sometimes involving family members and even parents conspiring to murder or assault their off-spring because the victim chose to live life in a way that their families did not approve of. Banaz Mahmood for instance (1986-2006) was a British woman of Iraqi Kurdish origin who was married at age 17 to a man 10 years older than her in an arranged marriage. Within months, the marriage turned violent and Banaz wanted a divorce and fell in love with someone. The uncle and father of Banaz wanted full control of who she saw, and wanted to force her into a marriage of their choosing. Mahmood went to the police for help five times before her uncle and father had her raped and murdered in revenge for Banaz's refusal to accept their determination to control her private life. This case is brilliantly recounted in the harrowing documentary ‘Banaz: A Love Story’ by director by Deeyah Khan.
In another 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 and 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, the 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 heinous crime is portrayed in the moving ‘Killer In The Family: The ''Honour'' Killers Surit Arthwal Murder.’ Surjit’s sister Sarbjit Athwal helped bring the perpetrators to justice and has gone on to found True Honour, one of a number of charities providing help and support to those affected by so-called honour crime.
Unfortunately there is nothing to indicate that such offending is on the wane. On the contrary, according to police records more than 11,000 cases of so-called honour crime were reported to UK police forces from 2010-14. There is therefore a strong case for courts to play their part in deterring such offences, both the way in which courts approach sentencing and the language used to describe such offending.
Do existing statutory sentencing provisions sufficiently cover the aggravating features of so-called honour crime?
Sections 145 and 146 of the Criminal Justice Act 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. The sections set out are as follows:
“145 Increase in sentences for racial or religious aggravation
(1) This section applies where a court is considering the seriousness of an offence other than one under sections 29 to 32 of the Crime and Disorder Act 1998 (c. 37) (racially or religiously aggravated assaults, criminal damage, public order offences and harassment etc.).
(2) If the offence was racially or religiously aggravated, the court—
(a) must treat that fact as an aggravating factor, and
(b) must state in open court that the offence was so aggravated…
146 Increase in sentences for aggravation related to disability or sexual orientation
(1) This section applies where the court is considering the seriousness of an offence committed in any of the circumstances mentioned in subsection (2).
(2) Those circumstances are—
(a) that, at the time of committing the offence, or immediately before or after doing so, the offender demonstrated towards the victim of the offence hostility based on—
(i) the sexual orientation (or presumed sexual orientation) of the victim, or
(ii) a disability (or presumed disability) of the victim, or
(b) that the offence is motivated (wholly or partly)—
(i) by hostility towards persons who are of a particular sexual orientation, or
(ii) by hostility towards persons who have a disability or a particular disability.
(3) The court—
(a) must treat the fact that the offence was committed in any of those circumstances as an aggravating factor, and
(b) must state in open court that the offence was committed in such circumstances.
(4) It is immaterial for the purposes of paragraph (a) or (b) of subsection (2) whether or not the offender’s hostility is also based, to any extent, on any other factor not mentioned in that paragraph...”
Although these provisions play a positive role in marking and deterring crimes of hate, some types of so-called honour-based crime will fall within Sections 145 and 146 but some will not. Where crime is committed, for instance, with the motivation to express disapproval of the gay or lesbian orientation of a victim, Section 146 will be triggered. On the other hand, where crime is committed to punish a woman or man for having (or wishing to have) an opposite-sex relationship that is disapproved of, this is not caught within Section 146. There is nothing within the Act to say that this motive would aggravate the offence. Likewise, crimes to express disapproval of general conduct (such as a victim engaging with social media such as Facebook) are not within the Sections 145-6.
The provisions in relation to murder likewise do not explicitly or fully engage with so-called honour based motivation. Under Criminal Justice Act 2003 Schedule 21 there are specific aggravating features for a court to take into account when passing sentence following conviction for murder. Firstly, there are particular features of cases considered sufficiently aggravating that, where present, courts are directed that the appropriate starting point is a ‘whole life order’:
“SCHEDULE 21 – Determination of minimum term in relation to mandatory life sentence
(2) Cases that would normally fall within sub-paragraph (1)(a) include—
(a) the murder of two or more persons, where each murder involves any of the
(i) a substantial degree of premeditation or planning,
(ii) the abduction of the victim, or
(iii) sexual or sadistic conduct,
(b) the murder of a child if involving the abduction of the child or sexual or sadistic motivation,
(c) a murder done for the purpose of advancing a political, religious [F1, racial] or ideological cause…”
Again, some cases of so-called honour-based motivation will fit into that category and some will not. Firstly, there will be some such cases that will involve the murder of two or more persons and also feature a substantial degree of premeditation or planning, the abduction of the victim, or sexual or sadistic conduct. Equally, there are some cases where a so-called honour based motivation will include some overlap with a religious or ideological cause.
However, such features will by no means apply in all cases and, given the severe consequences of a whole life order, it is to be expected that terms such as ‘religious or ideological cause’ will be interpreted in a narrow way and limited to expressly religious motivation such as hostility by one religious group to the religious teachings of another group.
Moreover, where ‘whole life order’ features are not present, and the court is determining in other murder cases how long the minimum period should be before parole can be considered, the list of aggravating features will not cover all so-called honour based motivation. For instance, certain aggravating features to be taken into account are listed at Schedule 21 Section 5(2) to indicate where crimes are so serious that a starting point of a minimum term of 30 years may be appropriate;
(a) the murder of a police officer or prison officer in the course of his duty,
(b) a murder involving the use of a firearm or explosive,
(c) a murder done for gain (such as a murder done in the course or furtherance of robbery or burglary, done for payment or done in the expectation of gain as a result of the death),
(d) a murder intended to obstruct or interfere with the course of justice,
(e) a murder involving sexual or sadistic conduct,
(f) the murder of two or more persons,
(g) a murder that is racially or religiously aggravated or aggravated by sexual orientation.
As for Section 145 and Section 146, murders racially or religiously aggravated or aggravated by sexual orientation are mandatory aggravating features to be reflected in higher sentences. As set out above, however, many categories of so-called honour-based motivation will not be covered by such factors.
A case example where the current sentencing framework did not reflect the so-called honour-based motivation
Following convictions for the murder of Surjit Athwal, the defendants appealed against both the convictions and the sentences passed. The Court of Appeal judgement (R v Athwal & Ors  EWCA Crim 789) regarding the appeal against sentence illustrates how current sentencing provisions do not provide sufficient guidance to courts as to how to approach crimes with a so-called honour-based motivation.
As part of the introductory remarks in the appeal, Lord Justice Maurice Kay said:
“3. In December 1998, the marriage of Sukhdave and Surjit was in difficulty. They had both contemplated divorce. They had sought legal advice although on 30 November 1998 Surjit had told her solicitor to await further instructions. The solicitor never heard from her again. Surjit was having an affair with a work colleague, Harry Grewal, and it was thought that he might be the father of Gavan. Surjit was undoubtedly an attractive and lively young woman.”
Although perhaps meant in a complimentary way, the reference to Surjit being “an attractive and lively young woman” is perhaps a little jarring, particularly given the horrific consequence of her daring to be ‘lively’. The court dismissed the appeal against conviction then went on to consider the appeal brought by both against their sentences. A number of aggravating features of the offence had been identified by the trial judge (and endorsed by the Court of Appeal) 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:
- This was a planned killing
- It was intended to result in gain from the insurance policies taken out on the life of the deceased (albeit this was never achieved).
- There was also a cover up involving deceit, concealment of the body which was lost to Surjit's blood relatives
- In the ‘cruellest breach of trust’, as the matriarch of the family, Bachan had removed the deceased from her role as mother of her two children.
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 life 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 disapproved of. 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.
So-called honour based motivation as an aggravating feature; the human rights perspective
It may be that, by concentrating on ensuring appropriate sentencing in the immediate cases before them, judges generally have little opportunity to reflect upon or set out more general principles as to why such crimes are considered so heinous.
When understood within a human rights perspective, however, it becomes clear why as a matter of principle so-called honour based-motivation is always an aggravating feature.
The key reason is that 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 defines the right to a private life as follows:
“1. 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 life a life of their own lawful choosing. In the landmark case of Smith and Grady v. The United Kingdom (1999) 29 EHRR 493 the European Court of Human Rights unanimously found that the investigation into and subsequent discharge of personnel from the Royal Navy on the basis they were homosexual was a breach of their right to a private life under Article 8 of the European Convention on Human Rights. In Botta v Italy 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  2 A.C. 368, HL (per Lord Bingham at ).
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. Indeed Section 1 of that Act describes these rights as ‘fundamental freedoms.’
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’.
The second fundamentally aggravating feature of so-called 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. Such crimes
Reflecting upon the brutal murder of Banaz Mahmood, Nazir Afzal then of the Crown Prosecution Service rightly observed:
“We don’t see this as domestic violence – it’s beyond that. The murder of Banaz was so brutal that it was a clear warning to others; it was a way of saying ‘don’t step out of line or this could be you.” (See ‘Crimes of the Community’ (2008) by the Centre for Social Cohesion).
Once so-called honour based 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.
The Sentencing Council for England and Wales is a body set up to promote greater transparency and consistency in sentencing. It issues guidelines on sentencing for various types of offending, which the courts must follow unless it is in the interests of justice not to do so. In addition to issuing guidelines, the Sentencing Council also has responsibility for;
- assessing the impact of guidelines on sentencing practice. It may also be required to consider the impact of policy and legislative proposals relating to sentencing, when requested by the Government; and
- promoting awareness amongst the public regarding the realities of sentencing and publishing information regarding sentencing practice in Magistrates’ and the Crown Court;
- publishing information regarding sentencing practice in Magistrates’ and the Crown Court;
- considering the impact of sentencing decisions on victims;
- monitoring the application of the guidelines, better to predict the effect of them; and
- playing a part in promoting understanding of, and increasing public confidence in, sentencing and the criminal justice system.
Guidelines issued so far cover not only particular types of offending but also general approaches to sentencing applicable to a wider range of offending. Until now, however, in England and Wales there have been no guidelines as to how courts should approach cases where so-called honour based motivation is a feature.
Guidelines in Northern Ireland
Unlike England and Wales, however, the Northern Irish Lord Chief Justice’s Sentencing Group (which plays a similar role to the Sentencing Guidelines Council) has set out specific guidance as to how the courts should approach sentencing in its ‘Sentencing Guidance Note ‘Honour-based’ Crime’. In this guidance 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’.
This guidance begins by quoting the judgement of Wall LJ in the Children’s Act case of AM v A Local Authority and another; Re B-M (children) (care orders: risk)  2 FCR 505:
“ My second point is that the time has surely come to re-think the phrase 'honour killings'. It is one thing to mock the concept of honour—as, for example, Shakespeare does through Falstaff in Henry IV Part I, Act V, Scene i. It is quite another matter to distort the word 'honour' to describe what is, in reality, sordid criminal behaviour. I put on one side the murder of a baby in this case, since brother 1's motivation for the murder is not known. However, the remorseless pursuit of the baby's mother who, the judge found, was a woman fleeing from domestic violence; the fact that the mother of the subject children in this case sprayed the nightclothes of one of them with white spirit and set fire to her house in order to implicate the intervener; the fact that the mother will not identify her brothers in the conspiracy for fear of reprisals; the fact that the grandfather appears to believe that the death of the baby was an accident and the will of God—these things have nothing to do with any concept of honour known to English law. They are, I repeat, acts of simply sordid, criminal behaviour and a refusal to acknowledge them as such. We should, accordingly, identify them as criminal acts and as nothing else.”
After noting the generally severe approach that courts have adopted towards such cases, the Note then goes on to set down detailed and considered guidance within the framework that ‘in many instances the “honour based” characteristics will constitute aggravating factors’ which increase the seriousness of the crime:
“There is no separate category of ‘honour-based’ crimes. An offender who is convicted of a crime which he/she seeks to justify as ‘honour-based’ will fall to be sentenced in accordance with normal sentencing principles. In many instances the very matter(s) which the offender seeks to justify his action will constitute aggravating factor(s) increasing the seriousness of the crime.
One or more of the following list of aggravating factors will usually be present in the context of so called “honour based” crimes:
- The offence was committed in an attempt to control perceived unwarranted sexual behaviour (e.g. homosexuality or perceived promiscuity);
- The offence was committed in an attempt to control perceived unwarranted social behaviour (e.g. use of alcohol or drugs, wearing make-up or behaving in what is perceived to be a ‘westernised’ manner);
- The offence was committed in an attempt to prevent a perceived unsuitable relationship (e.g. a relationship with someone outside the ethnic, cultural, religious or caste group);
- The offence was committed in order to ensure land, property and wealth remain within the family or is brought into the family;
- The offence was committed in the context of ‘hostility’ as defined by Article 2 of the Criminal Justice (No.2) (NI) Order 2004;
- The offender used their senior position within the family/community to encourage/counsel/coerce others to commit the offence.
The corollary of this is that the Note refers to the youth of a defendant as a mitigating factor:
“Sentencers should also note that, where the defendant is young and has been manipulated or coerced into committing the offence by family or community elders, then it may be appropriate for lesser weight to be attributed to certain aggravating factors in the case.”
It could be said, however, that courts should be cautious before regarding youth as a mitigating factor in that this may make it more likely that young people within families will be selected and pressured into committing attacks on behalf of older members. The opposite point could therefore also be made that; severe sentences are required to deter such a dynamic.
The need for sentencing guidelines in relation to so-called honour based crime
It is clear from all of the above that, although offences with a so-called honour-based motivated are often dealt with by severe sentences, until now such motivation itself is an almost invisible factor in determining sentence.
Indeed, until now in England and Wales 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 court apply a consistent approach across a variety of difference offences and circumstances. Also, given how many sentencing guidelines and legislative steers on sentencing the courts already have to consider when passing sentence, it would take a brave judge to explicitly increase a sentence to take into account a feature not already present in other sentencing guidelines.
Sentencing Guidelines on Domestic Abuse
There has recently been some progress in that, in May 2018, the Sentencing Guidelines Council brought in guidelines ‘Overarching Principles: Domestic Abuse Definitive Guideline’ setting out general principles in cases of domestic abuse. These Guidelines refer to so-called honour based violence within the context of domestic abuse:
“A useful, but not statutory, definition of domestic abuse presently used by the Government is set out below. The Government definition includes so-called ‘honour’ based abuse, female genital mutilation (FGM) and forced marriage.”
These new Guidelines 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 controlling behaviour as:
“Controlling behaviour is a range of acts designed to make a person subordinate and/or dependent by isolating them from sources of support, exploiting their resources and capabilities for personal gain, depriving them of the means needed for independence, resistance and escape and/or regulating their everyday behaviour.
The Guidelines define coercive behaviour as:
“Coercive behaviour is an act or pattern of acts of assault, threats, humiliation (whether public or private) and intimidation or other abuse that is used to harm, punish, or frighten the victim. Abuse may take place through person to person contact, or through other methods, including but not limited to, telephone calls, text, email, social networking sites or use of GPS tracking devices.”
The Guidelines go on to state that the domestic context of offending makes offending more serious because it “represents a violation of the trust and security that normally exists between people in an intimate or family relationship”.
The Guidelines go on to 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 install 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 so-called honour based violence that falls outside of this ambit.
Also, given the level of severity and variety of many so-called honour based crimes, it seems a little awkward and even condescending to try and fit them within the strictures of domestic abuse. Is a targeted killing of a family member involving members of the wider family, for the crime of trying to live a free life, properly described as domestic abuse? Are these Guidelines perhaps playing lip-service to so-called honour based violence but without really defining or addressing it?
These Guidelines are new and it remains to be see whether they will be effective in encompassing so-called honour based conduct and also marking such crimes for their truly aggravating features.
General guidelines for so-called honour based crimes
Instead, consideration should perhaps be given to more general guidelines applicable whenever the motivation for offending appears to be so-called honour based crime. Also, such guidelines should consider carefully the language that should be used by courts when dealing with such cases.
Given the above reasons why so-called honour based motivation aggravates offending, guidance should direct judges to approach sentencing in such cases in a structured staged as follows:
- To identify a starting point for the offence or offences that are being dealt with in the usual way, taking into account usual aggravating and mitigating factors.
- To consider whether the motivation in issue is already aggravated as a ‘hate crime’ under Sections 145-6 Criminal Justice Act 2003 or, for murder, racially or religiously aggravated or aggravated by sexual orientation under Schedule 21).
- If not already aggravated as a hate crime, the judge should then raise that starting point in all cases where a so-called honour based motivation is identified as a significant contributing factor for the offending.
- Judges should give consideration to deterrent sentences in all cases where so-called honour-based motivation is identified as a contributing factor in the offending. Where a deterrent sentence is not passed, the judge should give reason why he or she is not passing a deterrent sentence.
A new way of talking about so-called honour based violence
The sentencing guidelines could also play a role in re-shaping the language used to refer to such offending, leading the way in a fundamental recasting of the framework by which courts view such cases.
How we name things plays an important role in how we view them. ‘Female Genital Mutilation’ is a good point in hand; the term powerfully expresses that this involves a mutilation. It is quite properly not referred to as ‘corrective genital surgery’ or, to use the viewpoint of perpetrators, ‘surgery to ensure virtue’.
To call offending ‘honour-based’ arguably makes precisely that error; it 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 without referring to such pejorative terms as ‘honour’.
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 and used, 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.