Amendment 19

Domestic Abuse Bill - Report (2nd Day) – in the House of Lords at 3:00 pm on 10th March 2021.

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Baroness Newlove:

Moved by Baroness Newlove

19: After Schedule 1, insert the following new Schedule—“SCHEDULE STRANGULATION OR SUFFOCATION: CONSEQUENTIAL AMENDMENTSPolice and Criminal Evidence Act 19841_ In section 65A of the Police and Criminal Evidence Act 1984 (qualifying offences for the purposes of Part 5 of that Act), in subsection (2), after paragraph (r) insert—“(ra) an offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation).”Housing Act 19852_ In Schedule 2A to the Housing Act 1985 (absolute ground for possession for anti-social behaviour: serious offences), after paragraph 14 insert—“14A_ An offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation).”Criminal Justice and Public Order Act 19943_ In Part 1 of Schedule 7A to the Criminal Justice and Public Order Act 1994 (offences in England and Wales for which cross-border powers of arrest available), for paragraph 24 substitute—“24_ An offence under either of the following provisions of the Serious Crime Act 2015— (a) section 45 (participating in activities of organised crime group);(b) section 75A (strangulation or suffocation).”Crime and Disorder Act 19984_(1) Section 29 of the Crime and Disorder Act 1998 (racially or religiously aggravated assaults) is amended as follows.(2) In subsection (1), after paragraph (b) (but before the “or” following it) insert—“(ba) an offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation);”.(3) In subsection (2), for “or (b)” substitute “, (b) or (ba)”.Youth Justice and Criminal Evidence Act 19995_(1) Schedule 1A to the Youth Justice and Criminal Evidence Act 1999 (proceedings in which witnesses are automatically eligible for assistance on grounds of fear or distress about testifying) is amended as follows.(2) After paragraph 29 insert—“Serious Crime Act 201529A_ An offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation) in a case where it is alleged that—(a) the accused was carrying a firearm or knife at any time during the commission of the offence, and(b) a person other than the accused knew or believed at any time during the commission of the offence that the accused was carrying a firearm or knife.”(3) In paragraph 30, after “paragraphs 1 to 8” insert “or 29A”.Sexual Offences Act 20036_ In Schedule 5 to the Sexual Offences Act 2003 (cases where sexual harm prevention orders may be made), after paragraph 63B insert—“63C_ An offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation).”Criminal Justice Act 20037_ In Part 1 of Schedule 15 to the Criminal Justice Act 2003 (violent offences specified for purposes of certain custodial sentences), before paragraph 63G insert—“63FA_ An offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation).”Domestic Violence, Crime and Victims Act 20048_ In section 6A of the Domestic Violence, Crime and Victims Act 2004 (evidence and procedure in cases of serious physical harm: England and Wales), in subsection (2), at the end insert—“(c) an offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation).”Children Act 20049_ In section 58 of the Children Act 2004 (reasonable punishment: England), in subsection (2), after paragraph (c) insert—“(d) an offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation).”Criminal Justice and Immigration Act 200810_ In section 98 of the Criminal Justice and Immigration Act 2008 (violent offender orders), in subsection (3), after paragraph (d) insert—“(da) an offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation);”.Modern Slavery Act 201511_ In Schedule 4 to the Modern Slavery Act 2015 (offences to which defence for slavery or trafficking victims under section 45 of that Act does not apply), after paragraph 35 insert—“Serious Crime Act 2015 35A_ An offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation).”Sentencing Act 202012_(1) The Sentencing Act 2020 is amended as follows.(2) In section 67 (assaults on emergency workers), in subsection (3), after paragraph (a) insert—“(aa) an offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation);”.(3) In Part 1 of Schedule 18 (violent offences for which extended sentence of imprisonment available), after paragraph 25 insert—“Serious Crime Act 201525A_ An offence under section 75A of the Serious Crime Act 2015 (strangulation or suffocation).””Member’s explanatory statementThe new Schedule amends other legislation in consequence of the proposed new Clause in the name of Baroness Newlove that provides for an offence of strangulation or suffocation.

Photo of Baroness Newlove Baroness Newlove Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, the amendments in this group are government amendments tabled in my name. The principal amendment in this group is Amendment 49, which is also in the names of the noble Baronesses, Lady Wilcox and Lady Meacher. Amendments 19, 89, 95, 98, 100, 101 and 106 are consequential amendments. Amendment 49 establishes a specific offence of strangulation or suffocation. My noble friend the Minister has added his name to this group of amendments and has indicated to me the Government’s support for them. I thank my noble friend and welcome his support.

I am grateful to the Government for listening to this House and to the many organisations which have worked tirelessly for this vital change. I thank especially the women who have shared with me and other organisations their horrific experiences of strangulation and suffocation; this has helped make the case for this change in the law. One such woman is Rachel Williams. Rachel was strangled and then later shot by her partner. She was severely injured. I put on record my thanks to her for her tireless work in getting this offence recognised, as well as in supporting other victims through the organisation she has set up, Stand Up to Domestic Abuse. This year, 2021, is the year when we can be so proud to say to the thousands of victims and survivors who have suffered from this brutal act, and to their families, that your Lordships’ House is making this change.

I also pay tribute to all those who have worked side by side with me since Committee to ensure that a suitable amendment came together, as we have in front of us today. They include my successor as Victims’ Commissioner for England and Wales, Dame Vera Baird; the domestic abuse commissioner designate, Nicole Jacobs; the noble Lords, Lord Marks, Lord Anderson, Lord Blunkett and Lord Trevethin and Oaksey, and the right reverend Prelate the Bishop of London. Last but not least, I give a huge thank you to Professor David Ormerod. I am most grateful to all noble Lords around the House who have indicated to me their full support during the debates that we have had.

I know that I would not have got here without the incredible work of Nogah Ofer and the Centre for Women’s Justice, and Dr Cath White, the clinical director of SAFE Place Merseyside, whose detailed research and understanding of these cases has produced a strong case for reform. I am very conscious that they have done much of this work in their own time and my thanks go to them personally as well as to their organisations. Moreover, the work of the charity Advocacy After Fatal Domestic Abuse has been pivotal in getting us here today. I have huge respect for the chief executive Frank Mullane, who works tirelessly to help support traumatised families and ensures that professional training is given towards understanding domestic homicide reviews.

It is now accepted that our existing laws on assault are a very poor fit for strangulation and suffocation. Current laws focus on visible injuries, but with strangulation and suffocation there can be a high level of violence but few or no visible marks. Having a stand-alone offence will make assessing cases much more straightforward for the police as well as prosecutors. Implementation will be crucial. There will need to be appropriate training for police officers, the CPS, medical staff and domestic abuse workers. This will, of course, need financial resourcing. However, such investment into stopping domestic abuse at the very first opportunity will save countless lives of misery and the far greater costs of addressing further horrific crimes, including homicides, as well as suicides where domestic abuse is a factor. Implementation needs to be thorough and consistent across England and Wales.

I am concerned that many police forces’ specialist or dedicated domestic abuse units have been disbanded or so downsized that they cannot provide the service that victims have every right to expect. If this new offence within this landmark Bill is truly going to cause a sea-change in attitudes—a change that we desperately need—domestic abuse in all its forms must become a priority for all police forces, so that victims everywhere feel their voices are heard with dignity and respect and they are given the support that is needed for them to feel confident in and trust the criminal justice system.

I will leave it to the Minister to deal with the technicalities of the amendments but there are some obvious changes from Committee. The maximum sentence proposed here is five years, rather than seven, to bring it in line with the normal maximum sentence for actual bodily harm. The provision now includes the offence when carried out abroad by a UK national, which it is right to catch under this legislation. The new amendment introduces a limit on the consent normally allowed in law, so that a defendant cannot rely on a defence of consent if serious harm is caused, even if the defendant did not intend to cause the harm but was reckless; that is, they were aware that there was a risk of harm when they strangled someone but disregarded it. This limit to the defence of consent is in line with the “rough sex” defence amendment, which has become Clause 65 of the Bill. I accept the need for consistency, and I know that strangulation and suffocation can be part of rough sex.

Personally, I am concerned that many young people consent to violent acts because they feel pressured or coerced by partners and because of the normalisation of this violence through pornography. They may not be aware of the serious harm that this causes; even death can be caused in a matter of seconds. In a BBC survey of over 2,000 participants, 38% of women under 40 had experienced strangulation during sex; for women aged 18-24, this rises to 54%. Of the women who had been strangled or experienced other violence during sex, 53% had at least sometimes not consented; 42% of them said that on some or all occasions they had felt pressured, coerced or forced.

My warning to those considering consenting is that there is no evidence that strangulation improves the sexual experience for women, but there is evidence that men routinely use strangulation as a method of assault, and it is dangerous. When people speak of strangulation for sexual gratification, they really mean sexual gratification of men at the expense of women’s safety.

It is important that where consent is raised and disputed, the CPS opposes such defences robustly to get across the message that strangulation can be very dangerous, and that using it is reckless as there is always a risk of harm because you are depriving the brain of oxygen. Restricting oxygen to the brain, even for a short time, can have long-term consequences such as neurological damage.

However, within domestic abuse most cases of strangulation are not to do with sex. In these cases, the strangling is usually part of an episode of aggression and the issue of consent is not raised by the police or the CPS. This new offence will make it clear that it must be taken seriously, not dismissed because there are no visible marks. The offence heightens the level of risk for the victim of further abuse.

If the implementation of the Bill is properly resourced and monitored, this will really be the start of a tangible change in attitudes towards a particularly horrifying form of domestic abuse. I hope we will see the culture shift so that such abuse becomes unacceptable to everyone. The new offence is just one part of the changes needed, and I urge all noble Lords to support the amendments. I beg to move.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour 3:15 pm, 10th March 2021

My Lords, I warmly commend the sterling efforts of the noble Baroness, Lady Newlove, to see the introduction of new offences of non-fatal strangulation or suffocation. The noble Baroness generously mentioned a number of organisations and people who have helped her but she deserves huge credit for the way in which she has championed this action, which I am delighted to see in today’s amendments.

The noble Baroness’s speech was very powerful. The statistics that she shared with us about the relationship between strangulation and sex were shocking but, as she said, it goes much further beyond that as well. Indeed, she has explained at previous stages of the Bill that non-fatal strangulation and suffocation have the unique characteristic of being extremely harmful physically and psychologically but often with no external physical signs. Because of the lack of observable injuries and the lack of understanding of the seriousness of the offence, strangulation when charged is generally pursued as a summary offence of common assault in the magistrates’ court. Undercharging limits sentencing options, and a summary offence also deprives the victim and the defendant of the greater resources and attention devoted to a Crown Court prosecution. Without the establishment of a separate offence, those unique characteristics mean that more victims would suffer and be killed in future.

The amendment tabled by the noble Baroness, Lady Newlove, creates a new criminal offence of strangulation or suffocation. The offence will apply where a person intentionally strangles another person, but it will also cover a range of behaviours, including suffocation and other acts that affect the person’s ability to breathe and which amount to battery. Alongside the new offence must go training and strong guidance to police forces and other statutory agencies about how it is to be implemented, but today is a very significant step forward. I am grateful to the Government for responding to the noble Baroness, Lady Newlove, and I warmly welcome the amendments.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, I too welcome the amendments. I welcome the new offence of non-fatal strangulation and suffocation. I echo the noble Lord, Lord Hunt of Kings Heath, in saying that this is a very significant achievement for the noble Baroness, Lady Newlove. As she generously said in opening the debate, many have helped to bring this new offence to the statute book, but she has been the driver throughout. This has not been for herself; her motivation has been to relieve the suffering of victims.

We on these Benches have given the noble Baroness our wholehearted support throughout. It was always an extraordinary anomaly that non-fatal strangulation was not a specific offence. As discussed in Committee, cases of strangulation were generally charged, and therefore sentenced, as assault occasioning actual bodily harm at most—for the reason, which she explained, that they often left little or no mark. The result was that strangulation and suffocation were undercharged and underpunished, and indeed often not punished at all. That was all despite the appalling truth that strangulation was so much the marker of more generalised domestic abuse, and despite the tragic fact that so often it turned out be a predictor of future killing.

I am very grateful to Ministers for engaging with so many of those concerned with the promotion of these amendments. The noble Lord, Lord Anderson of Ipswich, and I had the opportunity to discuss the legal aspects of the new proposed offence with Ministers, and the Government quickly saw the strength of the argument for a specific offence. It is a credit to Ministers that, after initial hesitation, they decided to include the new offence in the Bill and resisted the temptation to put it off to a future date. Because of the strong connection with domestic abuse, it is an offence that sits clearly within the Bill, but it was the right decision to work on this with the speed that we have. That decision must have saved many victims from further serious harm and has almost certainly saved lives.

It is right that the new offence is of general application, not just limited to domestic abuse. It would not have been appropriate to confine it to cases within the statutory definition of “domestic abuse” contained in the Bill, despite the overwhelming majority of cases falling within that category. That is because all cases of strangulation or suffocation are required to be treated as specific offences, for the reasons that I mentioned earlier.

I am grateful for the advice of Professor David Ormerod, the former criminal law commissioner at the Law Commission, for his help with the drafting. He changed my view on the consent issue; I had originally been of the view that consent should be no defence, but it is right that there is a defence of consent—to cover, for example, cases of sporting contests that lead to injury—provided that serious harm was unintended. That proviso is elegantly drafted in the amendments before us. I know the Government are also grateful for the generosity with which he gave his advice, and for the advice of the Law Commission.

In my view, the broad definition of “serious harm” in proposed new subsection (6) to include actual bodily harm is right. It will be less difficult to prove, in cases of both physical and psychiatric injury, than if the only harm that met the required criteria were those for grievous bodily harm or wounding offences under Sections 18 and 20 of the Offences against the Person Act. It is also right that the new offence has extraterritorial application under the new Section 75B, and we welcome that.

I commend the Government on behalf of these Benches for their comprehensive and well-modulated response to this new offence, and to the amendments by the noble Baroness, Lady Newlove. I congratulate her once again. It is a victory for her but also for the many victims of this horrible crime. It is to be hoped that this provision will ensure that many others are spared both strangulation offences and the possible escalation to fatal violence thereafter.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green 3:30 pm, 10th March 2021

My Lords, I will keep my remarks short, in view of the amount of work to get through today. I congratulate the noble Baroness, Lady Newlove, who has shown the most incredible tenacity to get to this point. It is absolutely amazing, and an example to us all. Also, if I can say this without sounding anodyne or even boring, I congratulate the Government on picking this up. It was the right thing to do, and I am delighted. It opens the way for survivors of domestic abuse to seek justice and have a legal pathway to see their abusers punished. In later amendments, I will pick up on other areas where women are legally discriminated against very seriously, but for the time being, this is a fantastic move by the Government.

Photo of Lord Blunkett Lord Blunkett Labour

My Lords, in view of the pressure of time, I shall be brief, but I could not allow this amendment to pass without congratulating all those who have played such a significant part. The noble Baroness, Lady Newlove, has shown enormous tenacity. There are times in all our parliamentary, public and political lives when we suddenly realise that we can make a real difference to the well-being, and in this case the lives, of others. I congratulate her from the bottom of my heart. I pay tribute to those whom she generously paid tribute in her speech, and also to her co-signatories, my noble friend Lady Wilcox and the noble Baroness, Lady Meacher, who have stuck with this all along.

Unusually for these Benches, I congratulate, as my noble friend Lord Hunt did, the two Ministers, who have been assiduous in their preparedness to listen, respond and be flexible. This is the House of Lords at its best. Parliament is at its best when people listen to each other, where divides are narrowed and overcome, and where people of good will are prepared to find a way forward in the interests of the people whom we seek to serve in the country as a whole.

I have played a very small part in this, but I like to think that the Minister, as I said to him on another occasion, would not wish to put his parliamentary colleagues in the House of Commons in the invidious position of voting down such an important and critical measure. He certainly listened, as have the Government. Will we be able to do so on other issues?

Today there will be many votes. It should not diminish the importance of the Bill that we have continuing issues to raise, because this is a really important piece of legislation. I have one thing to put on the record on the statistics that the noble Baroness, Lady Newlove, gave us this afternoon. This is about power and domination, never about love. It is about people who are prepared to use their manhood for ill, not for good. It is about inadequates who then inflict their inadequacy on the people they claim to love. If we can put that message out to young men in particular, we will have done a very proud job of work this afternoon.

I thank the noble Baroness, Lady Newlove, for what she has done. Many people will have cause to thank her in years to come.

Photo of Baroness Meacher Baroness Meacher Crossbench

My Lords, this Bill will be remembered in years to come for the many important changes and reforms that will be introduced through it, but without doubt one of the most welcome changes will be the recognition of non-fatal strangulation in law and, we hope, the effective response by the criminal justice system. I say “welcome”; this particular amendment will be most welcomed by the most severely abused women who suffer this particularly horrible crime. As others have said, the noble Baroness, Lady Newlove, has done a superb job, supported by some pretty superb people, in steering the amendment to this point. She has said pretty well all that I would have said, and therefore I will be extremely brief.

The only point that has not been mentioned is that if we really want the amendment to achieve what it should achieve, which is the appropriate response by the police, the courts and so on, then training police officers so that they are aware of this stand-alone offence will be very important, and maybe a little training for doctors, although they should certainly be aware of what a strangulation looks like. Can the Minister say anything about that?

Like others, I say a tremendously sincere thank you to our Ministers, who have really listened. The noble Baroness, Lady Williams, has been a marvellous Minister in this House for a long time now, and we now have the benefit of the noble Lord, Lord Wolfson, as well as the noble Lord, Lord Parkinson. We are very lucky to have those Ministers in this House and I pay credit to them.

Photo of Baroness Burt of Solihull Baroness Burt of Solihull Liberal Democrat

My Lords, like others who have spoken, I am absolutely delighted at this outcome and grateful to the noble Baroness, Lady Newlove, and the two Ministers for addressing this gap in the legislation by giving this cruel and dangerous offence its rightful place as a crime in its own right. I congratulate all outside and inside this place who have campaigned for years to bring non-fatal strangulation on to the statue book. This will make a huge difference, as others have said, to the police, who will be given the confidence to arrest perpetrators. Judges will be able to bring the full force of the law on these sadistic, controlling criminals, who threaten, hurt, maim and kill their terrified victims.

Nothing that I can say can add to the cogent, clear contribution of the noble Baroness, Lady Newlove. As my noble friend Lord Marks said, this is a victory not only for her, but for all those victims from the past and the future who will now get justice, as well as greater awareness that this is not okay, and, as the noble Lord, Lord Blunkett, says, is nothing about love.

Photo of Baroness Wilcox of Newport Baroness Wilcox of Newport Opposition Whip (Lords), Shadow Spokesperson (Equalities and Women's Issues)

My Lords, the important issue of non-fatal strangulation has been powerfully supported by the noble Baroness, Lady Newlove, throughout the passage of this Bill, and she deserves every plaudit available to her for taking this through. I add my thanks to the Ministers engaged in this matter and echo the comments of my noble friend Lord Blunkett, which emanate from his huge experience in the Commons. This is indeed the House of Lords at its best, and I am delighted that the Government have listened and introduced Amendment 49.

Having the separate offence of non-fatal strangulation on the statute book will help the police to stop domestic abuse and coercive control. One of the UK’s leading domestic abuse campaigners is Rachel Williams, whom I got to know very well during my time as leader of Newport City Council. She lobbied me at every opportunity on these matters. She currently has a petition running on change.org to ask the Prime Minister to amend the law on non-fatal strangulation. She says in her petition:

Strangulation is a very symbolic act of control which leaves its victim in no doubt that there is a real and visceral threat to their life. If you put your hands on someone’s throat and squeeze the message and terror for the victim is clear.”

As a survivor of domestic violence, Rachel really knows what impact that has.

Strangulation is a very particular form of assault for three reasons: it is likely to cause serious injury or death, it is perceived by the victim as a direct threat to their life, and it is highly predictive of future homicide. A separate offence on the statue book will give the power to the police and the justice system to treat these offences with the seriousness that they deserve. I am delighted to tell Rachel, and the 108,609 people who had signed her petition when I last checked, that this amendment will ensure that the law is indeed changed, and that non-fatal strangulation will become a stand-alone offence on the face of this landmark Bill.

Photo of Lord Wolfson of Tredegar Lord Wolfson of Tredegar The Parliamentary Under-Secretary of State for Justice

My Lords, first, I congratulate my noble friend Lady Newlove on bringing forward these amendments, which, as she said, will create a new criminal offence of strangulation and suffocation. A number of tributes have been paid to my noble friend; they are all well deserved and I associate myself and the Government with them. If I may pick up one phrase used by the noble Lord, Lord Blunkett, she has made a real difference and, moreover, in a really important area. I assure him and the House that we listen. I will listen to noble Peers on this and on other matters. We will not always agree but I will always listen.

There have been a number of powerful and brief contributions. The noble Baroness, Lady Jones of Moulsecoomb, was kind enough to thank the Government, which is very welcome. I will seek to make it a more regular occurrence but it is warmly accepted. As the noble Lord, Lord Hunt of Kings Heath, mentioned, and as my noble friend Lady Newlove identified, a number of organisations have worked hard in this area. Their names are on the record and they deserve the credit as well.

I am also personally grateful to the noble Lord, Lord Marks of Henley-on-Thames, for the discussions which he and I have had on this matter, together with the noble Lord, Lord Anderson of Ipswich. They have been extremely useful to me. Perhaps I may also pick out some good discussions I have had with somebody who did not contribute to this debate but has worked hard in this area: the noble Baroness, Lady Bertin. She certainly improved my knowledge of and focus on this matter.

My noble friend Lady Newlove has highlighted to the Government why this new offence was necessary. She has engaged with me and my officials, to whom I should also pay tribute for working at significant speed, together with Professor David Ormerod—I think I can now say Professor David Ormerod CBE. This is not the first time, and will not be the last, that he has contributed significantly to the criminal law of this country. I will take a few moments to explain the architecture of the offence, because it is a new offence.

The key amendment in the group is Amendment 49, which provides for the substantive new offence. Strangulation and suffocation are always dangerous and, subject to the issue of consent, which was raised by a number of noble Lords and which I will come back to, they are wholly unacceptable. Strangulation can not only injure but be used by perpetrators to cause fear or exert control over their victim, as part of an abusive relationship.

Amendment 49, as I have stated, seeks to create a new offence of non-fatal strangulation or suffocation in England and Wales. It applies to behaviour which is currently criminal, so the aim is to improve the ability to prosecute such offences effectively—a point made by a number of noble Lords. The offence is designed to deal with assaults on any person where this affects their ability to breathe, whether by application of force to the neck—that is, strangulation—or by any other act; for example, by suffocation or constriction. The offence applies to all cases where strangulation or suffocation takes place, including those that occur in a domestic abuse situation. To pick up the point made by the noble Lord, Lord Marks of Henley-on-Thames, this offence is not restricted to domestic abuse situations but it is quite right that it is in this Bill, because it is often found in those situations.

Although such criminal behaviour can currently be captured under the offence of battery or, where more serious harm is caused, via the offence of causing actual bodily harm under the Offences against the Person Act 1861, the Government have been persuaded of the need to distinguish such crimes through a stand-alone offence. Serious offences against the person currently require actual bodily harm, which can make cases of strangulation or suffocation potentially difficult to prosecute. That is because the victim may have no, or limited, signs of injury. The problem can be compounded by the fact that the existing charge of battery, which carries a penalty of six months’ imprisonment, does not enable the seriousness of the offence as experienced by the victim—the terror caused during the assault or the often long-lasting psychological effect of it—to be suitably punished.

Unlike the summary-only offence of battery, the new offence of strangulation or suffocation will not be time-limited if a prosecution does not commence within six months of the offence. But perhaps of greater importance here, as my noble friend Lady Newlove identified, the new offence will expose the defendant to a more serious sentence than the current six months’ imprisonment for battery. That is because the nature of the harm required to qualify for the maximum five-year penalty has been reduced.

As is the case under the law for other assaults, the new offence will also provide a defence for the perpetrator to show that the victim consented to being strangled. However, and importantly, that defence of consent will not apply if the victim suffers serious harm, including where the perpetrator intended to cause serious harm or was reckless as to causing harm, regardless of the victim’s consent to those acts.

Noble Lords may ask why consent needs to be addressed here at all. The reason is that the law has to strike a balance. On the one hand, it must not interfere with an individual’s Article 8 ECHR rights to respect for their private life; we also do not want to criminalise low-risk consensual activity. But, on the other hand, we must ensure that any activity which causes serious harm is punished. We have sought to strike that balance in a manner which reflects the current law of the land. That was established by your Lordships’ House in its previous judicial function, which some of us still remember, in its decision in 1993 in the case of R v Brown.

If I can summarise a very long decision in one sentence, it would be this: where a victim consents to an act that amounts to no more than a battery, the consent of the victim can be a valid defence for the perpetrator. Subsection (3) of proposed new Section 75A, however, also gives effect to the other aspect of R v Brown in that a person ordinarily cannot consent to having serious harm inflicted upon them. This is linked to Clause 65 of the Bill, which lists the three assault offences for which, to cite R v Brown, consent to serious harm for sexual gratification is not a defence. That, of course, ties into the point made by the noble Baroness, Lady Burt, when she said that this is nothing about love. Importantly, exceptions that are recognised separately under the common law in relation to sports and other activities will not be affected and will also apply here. In such cases, where serious harm is caused the courts will consider this offence inapplicable where an existing public policy exemption applies.

The extraterritoriality point was raised by a number of contributors. A new Section 75B is to be inserted into the Serious Crime Act 2015, providing extraterritorial jurisdiction for the offence created by new Section 75A. It will mean that where the offence of strangulation or suffocation is committed outside the United Kingdom by a UK national or a person habitually resident in England or Wales, they can be prosecuted for the offence in England and Wales as if they had committed the offence in England and Wales.

Finally, given that the creation of a new offence of strangulation or suffocation is being achieved here, a number of consequential changes are required, including a new schedule and a change to the Long Title. These are set out in Amendments 19, 89, 95, 98, 100, 101 and 106. The amendments in the new schedule add this new offence to existing lists of mainly violent offences which trigger special consequences; for example, at paragraph 12(3) of the schedule it becomes a violent offence for which an extended sentence of imprisonment is available.

The noble Baroness, Lady Meacher, who has also put her name to Amendment 49, asked about training. In short, whenever there is a new offence, the police and CPS consider training for that new offence. Such training is a matter for them but I am sure that all those involved in the criminal justice system will be alive to the point that she made.

I hope it is not impertinent to say, as a recent arrival in your Lordships’ House, that I respectfully endorse the comment made by the noble Baroness, Lady Wilcox of Newport, who also put her name to Amendment 49. She said that the amendment—and, if I may say, the work that has led up to it—has shown the House at its best. As a new Minister, it has been a pleasure to work with everybody involved in this matter. I am very conscious that I am taking some of the credit for work done by other Ministers, including my predecessors.

To conclude, it is important when considering the creation of any new criminal offence that the offence is proportionate, and that it allows for more prosecutions to brought and convictions secured. As I stated in Committee, there were several difficult legal and technical issues which needed to be considered, particularly matters such as consent and the application of existing public policy exceptions, including those that exist for sports.

The Government are happy to agree that the amendments now address those points while ensuring that crimes of strangulation or suffocation can be prosecuted, with the perpetrators of such crimes more readily brought to justice. I therefore join my noble friend in commending these amendments to the House.

Photo of Baroness Newlove Baroness Newlove Deputy Chairman of Committees, Deputy Speaker (Lords) 3:45 pm, 10th March 2021

My Lords, I thank everybody in the Chamber and speaking virtually for their very kind words. This is the first Bill I have been completely involved with and I have been blown away by the experience, knowledge and huge support I have received from each and every noble Lord.

I thank my noble friend the Minister and my noble friend Lady Williams because they have truly listened and taken everything that has been discussed on board. I am not a lawyer or barrister so I thank those I call my “legal eagles”— I mean them no disrespect by that —who have the brains to narrow this down and support the victims of this horrific and violent offence.

I have goosebumps about what has been said. I think the best words were from the noble Lord, Lord Blunkett, when he said that this shows the House at its best. When we listen, we learn, and we can resolve to get what is needed for the victims on the ground. I especially thank the noble Baroness, Lady Meacher, who has been by my side throughout this passage of the Bill. I appreciate her expertise and, more importantly, her support. I also thank the back-room staff and the government lawyers, who have worked really quickly for us to get to this point today.

To all the victims and survivors who have challenged for change to get this support for many years, I say: this is your day, you are the heroines of what we are discussing. All of us across the Chamber, no matter our political party, have achieved the very best we can for you on strangulation and suffocation. It is for you, the victims of these horrific offences, that I urge all noble Lords to support these amendments.

The one thing I would like to ask—and the best thing I have always said throughout my journey—is that we treat victims and survivors with dignity and respect. One of the sincerest forms of respect is listening to what another has to say, to hear them and help them, so that they will no longer struggle on a daily basis as we progress this Bill. I hope that noble Lords will support these amendments.

Amendment 19 agreed.

Clause 55: Support provided by local authorities to victims of domestic abuse