The investigation, reporting and prosecution of offences of forced marriage or with a background of forced marriage
The purpose of this guidance is to inform and assist the Police Service of Scotland (PSoS) and the Crown Office and Procurator Fiscal Service (COPFS) regarding
- the investigation, reporting and prosecution of offences of forced marriage contrary to Section 122 of the Anti-social Behaviour, Crime and Policing Act 2014 (the 2014 Act),
- the investigation, reporting and prosecution of a range of offences where there is a background of forced marriage,
- assessing the need to seek a Forced Marriage Protection Order (FMPO) under the Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011 (the 2011 Act).
This guidance has been jointly produced and approved by PSoS and COPFS in consultation with key stakeholders within the Forced Marriage Network and is intended to supplement, rather than replace, any internal guidance produced by either organisation. PSoS and COPFS would like to thank the specialist support agencies who consulted and contributed to the creation of this document.
Having regard to the complexity of the issues that surround forced marriage and the difficulties often faced by victims (or those at risk) in seeking help and support, this guidance has been produced in order to:
- Highlight the importance of working with third sector partners and in particular agencies supporting victims of forced marriage or those at risk of becoming victims;
- Highlight the need to deal with all cases on an individual basis, appropriately tailoring the response of police and prosecutors to reflect, not only the public interest in investigating crime and holding perpetrators to account, but also balancing this with the needs of the victim. Integral to such an approach is an assessment of the risk posed by the perpetrator(s) to that victim or to others;
- Identify whether there is a requirement for an FMPO to protect the victim;
- Identify best practice and obtain consistency of approach while taking into account the needs of individuals.
In dealing with these cases, we will treat all victims in a fair, sensitive and ethical manner. In order to meet the needs of the communities that we serve, it is recognised that this will include consideration of the diverse nature of our communities.
1.1 The Scottish Government defines forced marriage in the Forced Marriage Statutory Guidance (update 2014) as follows:
"A forced marriage is a marriage in which one or both spouses do not (or, in the case of children/young people/adults at risk, cannot) consent to the marriage and duress is involved. Duress can include physical, psychological, financial, sexual and emotional pressure, threatening conduct, harassment, threat of blackmail, use of deception and other means. It is also to knowingly take advantage of a person's incapacity to consent to marriage or to understand the nature of the marriage. Duress may be from parents, other family members and the wider community".
Forced Marriage etc. (Protection and Jurisdiction) (Scotland) Act 2011
3.1 An FMPO is a Civil Order, which a court may make for the purposes of protecting a person:
- From being forced into a marriage;
- From any attempt to force them into a marriage;
- Who has been forced into a marriage.
3.2 The Order may, amongst other things, restrict or require certain actions or prohibit certain actions in relation to the protected person. This could include, for example, a prohibition on threatening or violent conduct towards the protected person, or any other person, or a requirement to take the protected person to a place of safety, a restriction on taking the protected person away from, or to, a particular geographical location or to submit documents such as passports to the court.
3.3 An FMPO applies to any person named in the Order and any other person who may become involved in forcing or attempting to force a person to enter into a marriage or who becomes involved in other respects (see Section 2(2) of the 2011 Act).
3.4 Examples of involvement in other respects include:
- Aiding, abetting, counselling, procuring, encouraging or assisting another person to force, or to attempt to force a person to enter into a marriage;
- Conspiring to force, or to attempt to force, a person to enter into a marriage
(see Section 2 (4) of the 2011 Act).
3.5 A victim may lack capacity to consent to marriage. Section 1(6)(b) of the 2011 Act states “force” includes, “knowingly take advantage of a person's incapacity to consent to marriage or to understand the nature of the marriage.”
3.6 Where the victim lacks the capacity to consent, an FMPO can be obtained to protect the victim from any conduct carried out for the purpose of causing the victim to marry, whether or not it amounts to violence, threats or any other form of coercion. Vulnerable persons, who have the capacity to consent, may still require an FMPO to provide protection from a forced marriage. Any social workers or care workers engaged with the victim may be able to provide information on the extent of any vulnerability or disability.
3.7 An FMPO can be applied for by the person seeking protection. The Chief Constable of the PSoS, the Local Authority and The Lord Advocate are “relevant third parties” (see Section 3(1)(b) of the 2011 Act) and can make an application for an FMPO in respect of a person who requires protection.
3.8 In all cases in which there appears to be a background of forced marriage or it is alleged
that an offence in terms of Section 122 of the 2014 Act has been committed, PSoS must consider if it is necessary to apply for an FMPO to protect the victim. This must take place before a case is reported to COPFS. If an FMPO is judged necessary PSoS should follow internal procedures to make an application for an FMPO within appropriate timescales. It is not necessary that the case is reported to COPFS before such an application may be made. The views of the victim in relation to the application will be an important factor, however, decision making should not be made solely on this view. The public interest consideration may require that an FMPO application is made.
3.9 When a charge in terms of Section 122 of the 2014 Act or other charge where there appears to be a background of forced marriage, is reported to COPFS, the SPR should describe whether application for an FMPO has been made by PSoS or the reasons why an FMPO is judged not to be necessary. The views of the victim on an FMPO should also be detailed.
3.10 If the initial prosecutorial decision is that there are to be no proceedings, the responsibility to consider whether an FMPO is necessary and, if it is judged necessary, to apply for an FMPO, shall remain with PSoS. If there is a prosecution or the case is marked for further inquiries, and an FMPO has not previously been applied for by PSoS, the responsibility to consider whether an FMPO is necessary and, if so to submit an application for an FMPO shall pass to COPFS. The views of the victim shall remain an important, but not decisive factor.
3.11 There is no requirement for criminal proceedings to be live or concluded before the PSoS or the Lord Advocate may apply for an FMPO. Therefore, the timing of an application will vary depending on the circumstances of each individual victim. There may be some cases where it is necessary to apply for an FMPO before the conclusion of the criminal case and in others bail conditions may be
protect the victim during the case.
Barriers to reporting
4.1 Many victims of forced marriage may be reluctant to involve the police or to engage with the authorities for a number of complex reasons. These may include:
- Emotional bonds and loyalty to those that are forcing or have forced them into the marriage (often family/community members);
- Fear of repercussions against themselves, siblings, other family members (including threats to their personal safety);
- Child abduction;
- Alienation from family and community;
- The stigma attached to police intervention in their affairs;
- Where the victim is reliant on the support of the perpetrator;
- Language difficulties which mean victims are unable to express the gravity of the difficulties that they encounter;
- Where the role of the police in providing support is not understood;
- A lack of awareness of the law and mistrust of the police;
- Insecure immigration status of the person requiring protection.
4.2 Investigators and prosecutors recognise that these situational vulnerabilities may result in victims feeling unable to engage with the police and authorities. As such, it is crucial for police and prosecutors to work with partner agencies to support victims and those at risk, in order to build confidence in the role of both the civil and criminal justice system in tackling forced marriage.
Benefits of working with partner agencies
5.1 Individuals being forced to marry against their will may be experiencing pressure by family and community members. Specialist organisations can play an important role in supporting and assisting individuals to report forced marriage or to act as a third party and pass on information to the police to ensure the safety of those requiring protection. There are various organisations (e.g. Shakti and Hemat Gryffe Women’s Aid and local Violence Against Women and Girls Partnerships) where victims or other witnesses can speak privately to a member of staff.
5.2 The police must work effectively with third sector organisations with a national and local remit, or with particular interest or experience in matters associated with Honour Based Abuse (HBA) and forced marriage and raise a case by case liaison strategy, which should be tailored to build confidence and aid communication with the victim. This should focus on building the individual’s trust and, where appropriate, encouraging them to engage in the investigation and any subsequent action.
5.3 Third sector partners are fully aware of legislative requirements surrounding forced marriage, child and adult protection and their obligations when direct intervention is necessary.
Initial response by the police
6.1 The police will treat all incidents which appear to involve forced marriage as high priority.
6.2 Every case of forced marriage will present a unique set of facts and circumstances and, in determining the appropriate response, officers must consider each case individually.
6.3 When the police receive information or intelligence, which suggests that a person is or may be at risk of forced marriage; the priority will be the safety and well-being of the victim/potential victim. Every report of forced marriage will receive a consistent response and will be investigated thoroughly.
6.4 Where the report relates to a child victim, child protection procedures must be implemented. Any decision relating to a child will be consistent with the UNCRC, including that the best interests of the child are required to be treated as a primary consideration. Every victim/potential victim will undergo a risk assessment, receive protection and safety advice and be offered referral to a relevant support service.
6.5 In every case which appears to involve forced marriage, police officers should consider whether an FMPO is necessary to provide protection for the victim. Where it is judged that an FMPO is required, police officers should follow internal processes to ensure that an application is made within appropriate timescales.
7.1 When investigating reports of forced marriage the police will have regard to the individual needs of victims and witnesses and will be aware that diversity of culture, religion, ethnicity, sexual orientation, sex, gender identity or disability can present particular hurdles to reporting forced marriage. This can result in victims feeling unable to engage with police and authorities.
7.2 Officers should also be mindful that forced marriage may be committed with the knowledge or approval of family or community members who might consider any disclosure of forced marriage by the victim as undermining the family/community ‘honour’.
7.3 Consideration will be given to whether additional support during the investigation would be of assistance to victims and witnesses. Where appropriate, officers will liaise with partner agencies when carrying out investigations and refer victims to specialist agencies who wish such support.
7.4 During the investigation, officers must be alert to other offences linked to HBA and Gender Based Violence (GBV) and ensure that all possible lines of enquiry are sensitively but rigorously pursued, and all available evidence is secured. Where appropriate, consideration will be given to the arrest and interview of suspected perpetrators in order to secure further evidence. Where the perpetrator is not traced, they will be actively pursued until arrested.
7.5 The police will record full details of all reports made. An assessment of risk will be undertaken on all occasions, which must consider all information available at the time. Victim safety is paramount. The risk to the victim will be continually assessed by the police. A safety plan will be raised engaging with any specialist support organisations already working with the victim and this will be allocated ownership to a divisional public protection or domestic abuse unit officer to investigate. The plan will be reviewed and if necessary, refreshed as and when new information comes to light. Appropriate safety advice will be given, and the victim will be provided with information regarding support agencies if they are not already receiving support. This will all happen regardless of whether or not the case is reported to COPFS.
7.6 The risk of domestic abuse may increase for victims of HBA or FM and officers should be aware of this when dealing with incidents. Historically, even within the UK, domestic abuse of women was regarded as acceptable and for members of some communities that have immigrated into the UK, domestic abuse may have been socially acceptable, or not legislated against, under the laws of their country of origin. Some may also believe that religious and/ or cultural belief systems permit such acts of abuse. Officers must always be alert to the potential for HBA and FM when responding to calls and record concerns on the interim Vulnerable Person Database (iVPD) where there is a feature of domestic abuse or other family conflict. When domestic abuse is identified as occurring within the context of HBA or FM, officers should follow guidance contained within this document and the Domestic Abuse SOP. The nationally agreed definition of domestic abuse does not include inter-generational abuse (e.g. father and son) or other familial violence (e.g. uncle and niece) therefore many cases of HBA will fall out with this definition. If the incident involves inter-generational or familial abuse, then it should be dealt with as HBA only.
7.7 Where appropriate local victim advocacy services are available, consideration should be given to a partnership approach in relation to victim safety.
7.8 The police will have regard to the Scottish Government Guidance on the Joint Investigative Interviewing of Child Witnesses in Scotland and to the special measures available to child and vulnerable adult witnesses in terms of Sections 271 to 273 of the Criminal Procedure (Scotland) Act 1995 to assist them in giving their evidence in court.
7.9 The police will fully consider the risk assessment, the individual needs and views of the victim, any protection required by the victim and apply to the court for an FMPO where necessary within appropriate timescales.
7.10 Please see Appendix A for case examples and the support that specialist organisations can provide during a case.
Reporting of cases
8.1 In all cases of forced marriage or offending with a forced marriage background where there is sufficient evidence that a crime has been committed, the case will be reported to the Procurator Fiscal. This is regardless of whether or not the victim makes a complaint, or the complaint is made and then retracted, and this should be explained to the victim in a sensitive manner.
8.2 The police will ensure that any forced marriage case or any offending with a forced marriage background reported to the Procurator Fiscal contains all pertinent information, including:
- The nature and circumstances of the offence, including any injuries sustained and full details of any medical treatment received;
- The results of all inquiries made, regardless of whether they yield additional evidence;
- Full details of the relationship between the victim/accused and any witnesses;
- Full details of any previous incidents between the victim/accused, regardless as to whether this relates to forced marriage or other offending and whether or not the subject of a previous report to the Procurator Fiscal;
- Details of previous convictions and any criminal justice involvement with the victim, perpetrator or family members on similar issues or other related offending;
- Any Court Orders including whether an FMPO has been granted;
- Details of an FMPO that has been granted or is being sought or, if an FMPO has not been applied for, the reasons why an FMPO is judged not to be necessary;
Conditions attached to any previous liberation, undertaking or bail conditions or whether the accused was remanded;
- Any special risks which have been identified which impact on the victim and/ or their children, and the victim’s siblings or other parties;
- Any diversity requirements pertaining to the victim or witnesses, such as need for an interpreter, or other communication needs, any physical disability or any relevant cultural information;
- Any views expressed by the victim to the police, to their specialist support service or a specialist victim advocacy service, including any views in relation to any previous liberation, undertaking or bail and/or special conditions of bail;
- Information about any children resident in the household, including any details of any views expressed on giving evidence in court and bail and/or special conditions of bail;
- Any relevant additional information submitted on behalf of the victim by their specialist support service or specialist victim advocacy services;
- Address and contact telephone number for the victim as well as details of the victim’s preferred means of contact;
- Contact details for worker from specialist support service and victim advocacy service.
8.3 The report will consider how child and vulnerable witnesses may be appropriately supported to give evidence in the event of court proceedings. This should be consistent with the directions in the Lord Advocate’s Guidelines to the Police on Providing Information on Vulnerable Adult Witnesses. Consideration should be given to alternative forms of identifying the accused where possible.
Prosecutorial decision making
9.1 When considering reports of forced marriage, the prosecutor must first assess whether there is sufficient evidence that a crime has been committed by the accused. Where there does not appear to be sufficient evidence in the report, but other evidence may be available, the prosecutor will contact an agreed police point of contact to offer advice and direct further inquiries.
9.2 If there is insufficient evidence in law, no action can be taken by prosecutors. The prosecutor will clarify with the PSoS whether the victim has been referred to a specialist agency and if not the PSoS will discuss this with the victim.
9.3 If there is sufficient evidence in law, the prosecutor must consider what action is in the public interest in terms of the COPFS Prosecution Code. Assessment of the public interest will include the interests of the victim, the accused and the wider community. The factors, which require to be taken into account in assessing the public interest, will vary according to the circumstances of each case.
9.4 While the views of the victim are an important consideration in line with the COPFS Prosecution Code, the decision to prosecute does not lie with the victim. Placing such an onus on victims would create a situation in which they were liable to threats, intimidation and manipulation not to proceed. It is important that the victim is aware that the final decision on whether or not to prosecute, and the charges which will be prosecuted, rests with COPFS.
10.1 Where there is a prosecution and the accused is to appear from custody or on an undertaking, the prosecutor will oppose bail where appropriate. If bail is not to be opposed, the prosecutor will consider whether it is appropriate to seek special bail conditions to protect the victim.
10.2 A breach of bail is a serious offence and the police should pro-actively monitor bail conditions as part of the safety plan. If this discloses a breach of bail, or if a specific complaint is made, the police will investigate the matter thoroughly. If there is sufficient evidence of a separate criminal offence having been committed, the police will report this to the Procurator Fiscal. The accused may be detained in custody pending appearance at court, or if appropriate, a warrant will be sought for the accused’s arrest.
10.3 Where there are reasonable grounds to suspect that an accused person has broken or is likely to break any condition of bail imposed, the accused can be arrested and a bail review sought. There does not require to be corroboration of the conduct to arrest the accused. In such circumstances, the police must consider whether it is appropriate to arrest the accused and hold them in custody to appear at court the next lawful day.
10.4 On receipt of any new information about the conduct of the accused towards the victim or any other significant change in circumstances, the prosecutor will consider the accused’s bail status and seek a bail review where to do so is necessary for the protection of the victim.
10.5 Similarly the need for an FMPO will be kept under review by the prosecutor and the police at all stages of the case in the event that the risk to the victim increases or circumstances change. A breach of an FMPO is a criminal offence which will be investigated by the police when they become aware of the circumstances.
Information and support for victims
11.1 All cases involving vulnerable and child witnesses will be referred to the Victim Information and Advice (VIA) service within COPFS. VIA assists vulnerable witnesses by:
- Providing information about the criminal justice system;
- Keeping them up-to-date on key developments in the case that affects them;
- Helping them get in touch with organisations that can offer practical and emotional support;
- Discussing any additional support that might help them, for example special measures when giving evidence;
- Where the victim wishes, helping to arrange a visit to court for them so that they know what to expect if the case goes to trial.
11.2 Police officers and VIA staff will provide victims with information about the available support agencies and will make onward referrals, where appropriate. VIA staff will also refer vulnerable and child witnesses to Victim Support Scotland, consistent with the terms of the agreement between COPFS, Scottish Court and Tribunal Service (SCTS) and Victim Support Scotland.
11.3 Subject to any express local arrangements with specialist support organisations and/or where appropriate, advocacy services, VIA will notify the victim of the outcome of the case, the granting of any bail, the terms of any special bail conditions or bail review. This will be done by telephone that day or within a maximum of 24 hours of the accused appearing in court. Where an accused has been released from custody and VIA has been unable to contact the victim, the police will be asked to do so.
11.4 If any significant change is made to the conditions of bail or an order is granted or revoked, VIA will inform the victim by telephone that day, or within a maximum of 24 hours thereafter. This includes where the accused has been granted bail by the High Court. If VIA has been unable to contact the victim, the police will be asked to do so.
11.5 The victim should also be advised that they should contact the police if they become aware that the accused has broken any bail conditions or breached any of the requirements of an FMPO.
12.1 Victims can sometimes feel unable to continue engaging with police and authorities due to situational vulnerabilities such as blackmail, coercion threats against them or threats against other persons and may retract their original statements or be pressurised into doing so. They may be reluctant to give evidence for these and a number of other reasons, including previous experience of the accused’s conduct.
12.2 Where the police or VIA staff become aware of this, the prosecutor must be advised immediately. Before making any decision on discontinuing proceedings, consideration must be given to the particular circumstances of the case.
12.3 The prosecutor or police should, as a matter of urgency, contact any specialist support services and advocacy services working with the victim as they may have information about the retraction or reluctance on the part of the victim to proceed and/or engage.
12.4 It must be established whether this reluctance or retraction is a result of threats or pressure from the accused or any other person. It may be appropriate to meet with the victim or to instruct the police to interview the victim to explore, sensitively, the reasons for their retraction or reluctance. The specialist support service should be engaged to assist the victim in this process and during any meeting with COPFS staff and/or police. Where the victim has not already engaged with a specialist support service, the victim should be advised of the available support and offered referral to a relevant support service.
12.5 The final decision to discontinue proceedings rests with COPFS and this decision will only be made on the instruction of the COPFS National Sexual Crimes Unit (NSCU) where the offence is under section 122 of the 2014 Act.
13.1 Further information is available from:
Crown Office Policy Division on 0300 020 3000 or at PolicyDivision@copfs.gov.uk
Domestic Abuse Co-ordination Unit on 01786 896 150 or firstname.lastname@example.org
Appendix A: Case examples and assistance of support organisations
If in any of these examples the victim was a child, child protection procedures would also have been invoked and any decisions taken would have been in accordance with the UNCRC.
Miss A (19) resides with her parents and younger siblings. Following a trip abroad, Miss A’s parents mentioned the possibility of a marriage which she declined. This refusal was met with anger by her parents and during further conversations, Miss A was struck to the back by her father and slapped to the face by her mother, both insisting the marriage go ahead.
Miss A found three airline tickets to Pakistan for her and her parents leaving in a few months, a trip she was unaware of. On returning home from work one day, Miss A discovered her bedroom had been searched and laptop, credit card and passport missing. Believing she was going to be forced into a marriage in Pakistan, Miss A left the family home to reside with a work colleague.
Miss A was reported missing to police by her parents, when traced she did not wish to see her parents or inform them of her current whereabouts. No disclosure was made to police about the previous assault or the theft of her belongings, Miss A also did not disclose the reason for leaving the family home. Miss A’s parents were informed their daughter was safe and well, however, did not wish any contact with them.
Following the missing person report, Miss A’s father attended at her workplace on a number of occasions and was told to leave by building security. On one occasion as Miss A was leaving work, her father and uncle who were waiting for her attempted to pull her into a car, a passer-by intervened and reported the incident to the police. Miss A disclosed the full details of her leaving home and her fear of being forced into a marriage in Pakistan.
A police investigation was instigated into the crimes of assault, theft, abduction, stalking and Section122 of the Anti-Social Behaviour, Crime and Policing Act 2014, against Miss A’s parents and
In addition to the criminal investigation a risk assessment was carried out by police and
consideration given to an application of an FMPO to protect Miss A from further attempts to force her into marriage A referral was also made to a relevant support agency who specialises in forced marriage (see below).
The wishes of Miss A were taken into account at all stage of contact with Police Scotland and COPFS.
Miss B (20) confided in a colleague that while abroad on a family holiday she was forced to marry her first cousin. Miss B disclosed that when she tried to refuse the marriage she was threatened with violence by her parents and told that they would return to the UK with her passport and leave her in the country if she continued to reject the marriage, as she would bring shame on the family.
Miss B felt pressure to go through with the marriage as she believed that her family would carry out their threat and she also felt that she needed to protect the family honour. Miss B was encouraged by her colleague to speak with an organisation that specialised in forced marriage support (see below). With their support Miss B reported her situation to the police.
Police carried out an investigation into the threats of violence and the coercion towards Miss B by her family and offences under Section 39 of the Criminal Justice and Licencing (Scotland) Act 2010 and Section 122 of the Anti-social Behaviour, Crime and Policing Act 2014. A report was submitted to the Procurator Fiscal.
An FMPO was applied for to assist Miss B in these circumstance by the police as the legislation equally applies to protect a person forced into a marriage. Conditions were granted requiring Miss B’s parents to bring her to the court or a place of safety, to submit any documents such as a passport to the court and to refrain from any violence or threatening behaviour.
The wishes of Miss B were taken into account at all stages of contact with Police Scotland and COPFS.
Assistance of support organisations specialising in Forced Marriage
In tandem with the police investigation and prosecution, PSoS and COPFS can refer victims to a support organisation which specialises in forced marriage and work with this organisation throughout the case. This happened in the case examples above relating to Miss A and Miss B. A support organisation provides invaluable support to victims throughout their journey and empowers a
victim to make choices.
A victim is allocated a key worker by the organisation who carries out a risk assessment with the victim. The organisation would work together with the victim and may provide support in areas such as:
- Safe temporary refuge accommodation to women, children and young people.
- Referral to other agencies such as social work and housing;
- Multiagency work with all partners involved;
- Any advice needed and referral to a solicitor for further legal advice;
- Provide support, information and advocacy in relation to civil or criminal proceedings involving any prosecution or FMPO application;
- Access to benefits and other welfare funds;
- Support to build a network;
- Referral for any counselling;
- Provide emotional support;
- In line with their service, provide assistance, with and onward referral to other appropriate organisations and services in relation to employment, education and learning;
- Introduction to support groups within the organisation for peer support;
- Discuss cultural specifics, family honour and abuse and dispel any myths;
- Referral to other services if a victim moved out the area;
- Discussion of advising any employers of the situation to receive the support of any gender-based violence policy the company may have.
Appendix B: Details of support organisations:
Appendix C: List of associated legislation
Appendix D: List of associated documents
Appendix E: Glossary of terms
- COPFS: Crown Office and Procurator Fiscal Service
- DNA: Deoxyribonucleic Acid
- EqHRIA: Equality and Human Rights Impact Assessment
- FMPO: Forced Marriage Protection Order
- HBA: Honour Based Abuse
- NSCU: National Sexual Crimes Unit
- PSoS Police Service of Scotland
- PF: Procurator Fiscal
- SOP: Standard Operating Procedure
- UK: United Kingdom
- UNCRC: United Nations Convention on the Rights of the Child
- VIA: Victim Information and Advice
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