Amendment 50

Domestic Abuse Bill - Report (2nd Day) – in the House of Lords at 8:45 pm on 10th March 2021.

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Baroness Kennedy of The Shaws:

Moved by Baroness Kennedy of The Shaws

50: After Clause 68, insert the following new Clause—“Reasonable force in domestic abuse cases(1) Section 76 of the Criminal Justice and Immigration Act 2008 (reasonable force for purposes of self-defence etc.) is amended as follows.(2) In subsection (5A) after “In a householder case” insert “or a domestic abuse case”.(3) In subsection (6) after “In a case other than a householder case” insert “or a domestic abuse case”.(4) After subsection (8F) insert—“(8G) For the purposes of this section “a domestic abuse case” is a case where—(a) the defence concerned is the common law defence of self-defence,(b) D is, or has been, a victim of domestic abuse, and(c) the force concerned is force used by D against the person who has perpetrated the abusive behaviour referred to in paragraph (b). (8H) Subsection (8G)(b) will only be established if the behaviour concerned is, or is part of, a history of conduct which constitutes domestic abuse as defined in sections 1 and 2 of the Domestic Abuse Act 2021, including but not limited to conduct which constitutes the offence of controlling or coercive behaviour in an intimate or family relationship as defined in section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship).”(5) In subsection (9) after “householder cases” insert “and domestic abuse cases”.”Member’s explanatory statementThis Clause seeks to clarify the degree of force which is reasonable under the common law of self-defence where the defendant is a survivor of domestic abuse alleged to have used force against their abuser.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

It is a great privilege to take part in this debate and to hear the voices of so many people with expertise in this field —sometimes direct experience—speaking with wisdom and compassion about why the law had to change.

I remind noble Lords that not so very long ago there used to be a way of referring to domestic abuse as “a domestic”, as though it were lesser than ordinary crime. It has been a long and hard struggle to have the law shift and change, for the agenda and context to change and for our political and legal classes to understand the full import of domestic violence and the toll it takes on our lives and the whole of society. That is why it has been so uplifting to listen to this debate over the last few weeks. I will move for two new statutory defences to be included in the Bill and give notice that I intend to divide the House.

In 2017, the Home Office Minister for Crime, Safeguarding and Vulnerability said there needed to be a root and branch review of how women are treated in the criminal justice system when they themselves are victims of abuse. Unfortunately, criminal law still fails to protect those whose experience of abuse drives them to offend. I strongly urge this House that there cannot be two classes of victim: those who somehow win our compassion and for whom we are desirous of a much fairer system and those who somehow fall outside that kind of protection.

We know that the law has failed women in many different areas for many years, and that one of the reasons why has been the absence of women in lawmaking—in the senior judiciary and in Parliaments. Happily, we have seen that changing in our society over recent decades, but there is still work to be done. I am attempting in these amendments, supported by colleagues around the House, to fill a really important gap—for those who perhaps have least voice because they end up in prison.

These amendments are supported by virtually every organisation involved—I do not know any organisation involved in domestic abuse that is not supporting this change. Once you really know about abuse and its ultimate potential consequences, which can often be the death of a woman or a victim of abuse, you know that sometimes the person on the receiving end can take no more and, out of despair and desperation, inflicts violence. We have to understand the context, and what has often been missing in the courts was a full understanding of domestic violence and the context. I know that, even in this House, we learn from each other and from each other’s experience, directly and indirectly, about what is involved and what the long-term impact of domestic abuse can be. It has been in only recent times, for example, that forms of abuse other than violence have been shown to have long-term consequences that can be so damaging to someone’s mental health. That learning has, in turn, to be fed into the law.

The organisations supporting these amendments include Women’s Aid, Rights of Women, Refuge, the Criminal Bar Association and the Centre for Women’s Justice, which has been a very important part of the research-gathering for these amendments. One of the pieces of work has come out of a report recently published by the Centre for Women’s Justice, Women Who Kill: How the State Criminalises Women We Might Otherwise Be Burying. The Victims’ Commissioner supports these changes. The domestic abuse commissioner- designate supports these amendments. Unfortunately, at the moment, the Government do not. Is this about not wanting to be seen in any way to support persons who might be accused of crime, rather than seeing that you are really supporting victims?

The first of the amendments, Amendment 50, has a new statutory defence relating to self-defence and the reasonableness test that applies to it. This amendment would afford justice to women who, after long-term abuse, are unable to avail themselves of self-defence when they are accused of harming their abuser, using force against their abuser or, indeed, killing their abuser. Why does self-defence not work in these circumstances? The reason is that the force used in self-defence must be reasonable, but because of their experience of relentless abuse and their physical disadvantage, women often reach for a weapon. As a result, their action is often deemed disproportionate because, in examining whether something is reasonable, which is an objective test, the question is asked, “Is it proportionate to what was happening to her at the time?”

Of course, it might not seem proportionate if a woman runs to the kitchen drawer, or reaches to the kitchen counter, and picks up a knife, or, as Sally Challen did, reaches for a hammer and causes a fatal blow to her controlling, abusive husband. I even represented a woman who took a rolling pin and hit her husband, causing an injury to his skull that ended in his loss of life. But he had abused her over years and years, and she could not take any more. So, we have to look at the ways in which we can contextualise this form of abuse, and look at why self-defence does not work for women. The research conducted in the report by the Centre for Women’s Justice really lays it out very clearly.

I just raise the comparison that I put before the House originally, when I spoke at Second Reading and then in Committee. I pointed out that there had already been a departure from the normal rules when dealing with a householder. The Government’s response then was to distinguish a householder’s fear if someone trespassed on to their property—an Englishman’s home is his castle—as, not knowing who they may be, they may take a weapon from a drawer and use it fatally, from the position of a victim of domestic violence taking a weapon in her hand.

I suggest that the point was ill made, because no one is suggesting a parallel. A departure has been made from the normal rules, which were made with a different perception in mind, by men of law who had not imagined the circumstances of domestic violence, the long-term abuse, the toll that it takes and the psychological impact it has on someone—the rising fear, the reading of a situation, the complexity referred to by the Minister and the dynamic that is created in these relationships. The point that I was making was that a departure has been made for the circumstances of the householder. If we are prepared to make it there, why are we so reluctant to make it here, particularly when it is going to be made use of by women—rare as these cases are—defending themselves against someone?

We heard today of the Government’s change of heart in their concession that non-fatal strangulation should become a crime, properly recognised by the courts at the right level. I have not worked on a single homicide where such a strangulation has not put people in fear that, one day, it will extinguish their life. That has been part of the histories that they have given to the court about the way in which they have been treated over the years.

The concern here is that self-defence is not working in these cases. The amendment seeks to introduce the test that was introduced for the householder, which is that, instead of being reasonable and proportionate, it would have to be grossly disproportionate to lose the right to draw down self-defence as a rationale or defence for conduct and for seeking an acquittal. For most of these women, because they face a conviction of murder if they fail, those acting for them persuade them to plead guilty of manslaughter. They are driven down another road that will lead to a conviction, but that is not the justice of the situation. They plead guilty to manslaughter, are convicted and end up in prison. That conviction will have consequences for their lives—employment and so much else—when they have been at the receiving end of abuse. That is quite wrong. It is in the hands of the Government to make a difference and I call upon them to reconsider their position.

I turn now to an interesting piece of academic work that was written under the names of Sheehy, Stubbs and Tolmie in 2012. It is about defences against homicide from battered women, as a comparative analysis of laws in Australia, Canada and New Zealand. This House can be persuaded by research from elsewhere, if changes have been made in other common law jurisdictions. It would be good for us to take a lead. When Theresa May introduced this legislation, she spoke of the United Kingdom leading the world in making changes to law that would bring proper justice to anybody facing domestic abuse, particularly women. Seeing whether others have made those changes first is not necessary, but it is helpful to look at research.

The research by Sheehy, Stubbs and Tolmie shows that the same problems exist in other jurisdictions. In Canada, they have tried to find ways of dealing with this by contextualising. Self-defence would be measured as having to be grossly disproportionate only if the nexus was with a context of domestic abuse. They then talk about how tweaking away at other parts of it have not been successful.

Self-defence is still a problem in these three jurisdictions. They point out that the guilty pleas women end up tendering to lesser charges of manslaughter because they cannot invoke self-defence mean that they risk compromising their innocence. They deny themselves the acquittal they would be deserving of if the law were fairer. That is the reason for Amendment 50.

Amendment 51 draws on a similar experience of women not being able to use the law because it was manmade. It did not ever contemplate the circumstances in the lives of women coerced and compelled into acts they are not consenting to in the ordinary way because of the ways they have to live with partners. I was taken with what the noble Lord, Lord Paddick, just said about compliance being rewarded and defiance being punished—that toxic way of having to live with an abusive partner, where you are having to please and do things to prevent abusive conduct.

Amendment 51 is the second statutory defence we are seeking to introduce. This provides a defence where a person is compelled to commit a crime because they live in a situation of domestic abuse. They live in fear, under the control of their abusive partner and there is a history of domestic abuse. There has to be the nexus with domestic abuse. It is not about everybody being able to make the claim; there would have to be that history. There would have to be evidence of abuse and of being compelled to commit the crime.

It happens and the circumstances will be familiar to people who have dealings with the courts: where women who are abused and under the control of their partner are forced to store stolen goods, hide guns or drugs and end up before the courts. They end up losing their liberty and are separated from their children. It is a horrible cycle: their children are taken into care; if they live in council accommodation, they lose their accommodation and the destruction becomes intergenerational. We really have to examine this to see whether we can find a fairer and more just way of doing things.

The general principle of criminal law is that those who chose to break the law are held responsible for their crime, and so it should be. But this amendment would create an exception. The exception is on the grounds that the choice is not being made voluntarily. It is not going to apply in every case, but it will in cases where there is clear evidence of coercion, a fear of violence or being killed by a partner and a sense of powerlessness, which we know is the experience of those subject to serious domestic abuse.

It is not one size fits all, which was a concern expressed by the noble Baroness, Lady Fox of Buckley. This is very much about looking at the evidence in a particular case and creating a nexus between the history of abuse and the compelling of someone to commit a crime. The question will arise: what is wrong with duress? Is duress not a defence in law? I should say that duress rarely avails itself to any defendant because it sets such a high bar. It is particularly hard for women who have been abused. Again, the tests are unsuitable for this situation because, of course, they turn on questions such as, “Was the threat such that it would overbear the will of an ordinary person?” There is also what used to be called the reasonable man test, although we now call it the reasonable person test, as though that cancels out the problems. However, it does not do that because you have to weave in aspects of the woman’s experience. The threat must be of death or of serious harm. The question is asked, “Did he actually say that he was going to kill you if you did not hide his gun?” But he does not have to say the words because she will know that that threat was persistent while they were living together.

Photo of Lord Parkinson of Whitley Bay Lord Parkinson of Whitley Bay Lord in Waiting (HM Household) (Whip) 9:00 pm, 10th March 2021

My Lords, I am sorry to interrupt the noble Baroness. I appreciate that she has three amendments to introduce—

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

The third one does not count.

Photo of Lord Parkinson of Whitley Bay Lord Parkinson of Whitley Bay Lord in Waiting (HM Household) (Whip)

She has taken 20 minutes to do so already and the House is keen to debate the amendments she is putting forward. If she could do so briefly, it will give noble Lords the opportunity to do just that.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

I feel that that was unnecessary, but I was coming to my conclusion anyway. There must be a causal link between the threat and the decision of the defendant to break the law, and that is a high bar. I strongly urge the House to support this new statutory defence for women who are compelled to commit crimes so that they can put it before the court where it can be tested and measured evidentially. If it passes the test, she can be acquitted.

Amendment 66 is a list of the offences to which this would not apply because of their gravity. I hope that the Crown does not think that there are two kinds of victims: those who are somehow deserving and those who are undeserving. The end of the road is when women are forced to do things that take them into the criminal ambit because of a history of abuse. I beg to move.

Photo of Lord Randall of Uxbridge Lord Randall of Uxbridge Conservative

My Lords, we have heard a passionate and erudite speech by the noble Baroness, Lady Kennedy of The Shaws. I have attached my name to her Amendment 51 principally because I was struck by the similarity, which is mentioned in the explanatory statement, to what is set out in the Modern Slavery Act 2015, where someone cannot be found guilty of committing a criminal act if they have been subjected to the coercion of modern slavery. I can see the same parallel between that and the domestic abuse situation which has been put so well by the noble Baroness. I therefore say, in the interests of brevity, that the noble Baroness has said it all and I shall support her, certainly on Amendment 51, if she puts it to a vote.

Photo of Baroness Hamwee Baroness Hamwee Liberal Democrat Lords Spokesperson (Immigration)

My Lords, I am glad that the noble Baroness is intent on pursuing these two amendments, to which I have added my name. She mentioned a report published recently by the Centre for Women’s Justice. The report mentioned that a defendant must be prepared, which I think means in both senses of the term, to disclose in court in the presence of the deceased’s family, how he—it is usually he—had treated her; it is usually her. I would add to that the further difficulty of disclosing the behaviour in the relationship in front of one’s own family. Shame is another component of what we have been discussing, however misplaced it is.

I mention this because I want to use this opportunity to ask the Minister about the MoJ’s review of the issues raised in this debate. I heard the Secretary of State for Justice being interviewed yesterday about the sentencing Bill which has just been introduced in the Commons. He talked about the views of a victim’s family. He referred to the victims’ commissioner, having talked to her about the disproportionately high sentences imposed because the weaker partner, as has been referred to, had to arm herself because she could not defend herself with her bare hands against a stronger person. Can the Minister tell us more? There is clearly a relationship between this and what we are discussing in the context of these amendments. Amendment 50 is not about sentencing but about culpability, and if there should be a review, we should not delay.

During the Bill’s passage, I have been struck by how fast our understanding of domestic abuse has been developing. The noble Baroness, Lady Kennedy, referred to this. In Committee, the right reverend Prelate said that she is a passionate defender of trauma-informed interventions. I am with her there. Would we have heard that 10 years ago? Perhaps 10 years ago, because that was post Corston, but it would have been quite rare in the sort of debate that we are having now, not in specialised circles and among professionals, but in this sort of debate.

Reading the report that I have just referred to, I was struck by the observation that often abuse is disclosed very late, sometimes after conviction, especially when abuse has taken the form of coercive control. The noble Baroness, Lady Kennedy, explained in Committee that this was the form of abuse in all the cases that she had been involved in. So much of our debate has touched on, if not centred on, training. I refer to this here because it is a shorthand way of referring to a thorough understanding of the subject, or as thorough as it can be, while understanding of the whole issue continues to develop.

In Committee, the Minister, when arguing for the status quo, said that it is important to ensure that wherever possible, people do not resort to criminal behaviour—well, indeed. The amendment proposed is quite limited. To quote from the 2008 Act as amended for the householder cases,

“the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.”

He also argued, as, he said, an “enthusiastic” fan of the common law, that

“the courts are quicker, more nuanced and more flexible in developing the common law”.—[Official Report, 3/2/21; col. 2285.]

They are not quick, nuanced, and flexible enough, or we would not be having this debate. I do not know the genesis of the 2008 Act but clearly it was thought then that it was necessary to produce legislation on reasonable force for the purposes of self-defence, and then of course we had the householder defence. I hope that as an equally enthusiastic parliamentarian—the enthusiasms are not mutually exclusive—the Minister takes the view that there are occasions when Parliament should lead the way.

I find it difficult to accept, and indeed I cannot accept, that there can be a householder defence—“the Englishman’s home is his castle”, which some called for—but not an equivalent defence in the extreme cases dealt with by Amendment 50.

I have also added my name to Amendment 51. In Committee, I referred to the Modern Slavery Act, which the noble Lord, Lord Randall, mentioned, and I do not want to repeat that. But I came across a briefing from the Prison Reform Trust that included a paper from the Criminal Bar Association, written in 2017. It addressed the potential application of duress to domestic abuse and coercion. It quoted the noble and learned Baroness, Lady Hale, in the 2005 case of Hasan—as usual, she was in the vanguard—and I cannot do better than to quote her. Although it was obiter, what she said was very clear and relevant:

“I have no difficulties envisaging circumstances in which a person may be coerced to act unlawfully. The battered wife”— we have moved on from that sort of terminology, but this was in 2005—

“knows very well that she may be compelled to cook the dinner, wash the dishes, iron the shirts and submit to sexual intercourse. That should not deprive her of the defence of duress if she is obliged by the same threats to herself or her children to commit perjury or shoplift food … It is one thing to deny the defence (of duress) to people who choose to become members of illegal organizations, join criminal gangs, or engage with others in drug related criminality. It is another thing to deny it to someone who has quite a different reason for becoming associated with the duressor and then finds it difficult to escape. I do not believe that this limitation on the defence is aimed at battered wives at all, or at others in close personal or family relationships with their duressors and their associates, such as their mothers, brothers and sisters.”

These are important amendments, and we support them enthusiastically.

Photo of The Bishop of Gloucester The Bishop of Gloucester Bishop 9:15 pm, 10th March 2021

My Lords, I spoke in support of Amendments 50 and 66 in Committee and have added my name to them again. I remind noble Lords of my interests as listed in the register. As ever, I am grateful to the noble Baroness, Lady Kennedy, for setting out the amendments so clearly and with such expertise. It is also a privilege to follow the noble Baroness, Lady Hamwee, and I echo all that she has said.

I speak not as a lawyer but as the Anglican Bishop for prisons and a long-time advocate for women in the criminal justice system. There is still a great need for reform. In recent years, it has been recognised that we need to rethink how women in the criminal justice system are treated and their paths straightened. With the Female Offender Strategy, the Government seem to have conceded to a more nuanced approach but we are still waiting for it to be fully implemented.

Here is an opportunity for the Government to recognise that far too many women in prison or under supervision in the community are survivors of domestic abuse and that that unimaginable experience has driven them to offend. If we are convinced of the need to protect all survivors of domestic abuse then we have a moral obligation to dig deeper and extend that protection to all those, mainly women, who have offended while being coerced or controlled by an abusive partner, as we have heard. The experiences of those who retaliate against abusive partners in self-defence or after years of horrific abuse must be taken into account. Protection must be afforded to those who are compelled to offend as part of, or as a direct result of, their experience of abuse.

There are many outstanding organisations that support vulnerable women in the criminal justice system, not least women’s centres such as the one run by Nelson Trust in Gloucester or Anawim in Birmingham. They, along with others, have numerous stories to tell of how domestic abuse has driven someone to use force against their abuser. I am a big advocate of community-based support, which, as we have heard, offers a holistic, trauma-informed response to these women. I am glad about the development of much-needed, police-led diversion work, and that judges and magistrates have been given the resources and information to sentence women appropriately.

However, this legislation is also required here. As I said in Committee, we are not talking in the abstract. The decisions we make have a real and lasting impact on people’s lives. The most vulnerable, with limited life choices, deserve our attention and voice. However, if the compassionate argument is not strong enough and finance is your only focus, it makes no sense to spend nearly £50,000 a year to lock someone in prison when about £5,000 a year would enable a women’s centre, with professional expertise, to support, holistically in the community, someone who has been diverted from the criminal justice process, in recognition that their alleged offending was the direct result of their experience of abuse—and where their prosecution would not be in the public interest. This legislation will enable that to happen.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, I agree with every word that we have heard so far, and I have signed all three of these amendments—I think that they are superb and have been carefully and expertly drafted. It is deeply unfortunate that the Government have not adopted them as part of their unusually co-operative approach in this Bill.

The need is very clear: the deeply sad Sally Challen case was only one proof point of the lack of legal protection available for survivors of domestic abuse. Women get a terrible deal in the criminal justice system. Most are there for non-violent offences, and many are there for really minor things like not paying their TV licence. However, sometimes, violence does happen, and, where that is related to domestic abuse, there needs to be a sufficient legal defence to recognise the reduced culpability.

It is obvious that judges and, sometimes, lawyers do not understand coercive control and other abuses. The excellent report from the Centre for Women’s Justice, which the noble Baroness, Lady Kennedy of The Shaws, referred to, is called Women Who Kill—I will give a copy of the executive summary to the Minister afterwards to make sure that he reads it. It lays out the response of the criminal justice system to women who kill abusive partners and the way the law itself, and the way it is applied, prevent women from accessing justice.

Women who have been abused by the man they kill are unlikely to be acquitted on the basis of self-defence. Of the 92 cases included in the research for the report, 40—that is 43%—were convicted of murder. Some 42—that is 46%—were convicted of manslaughter, and just six, which is only 7%, were acquitted. The use of weapons is an aggravating factor in determining the sentence, and the report found that, in 73 cases—that is 79%—the women used a weapon to kill their partner. This is fairly unsurprising, given women’s relative size and physical strength and their knowledge of their partner’s capacity to be violent.

However, as other noble Lords have pointed out, this contrasts with the legal leeway given to householders if they kill or injure a burglar. Therefore, we need legislative reform to extend provisions of householder defence to women who use force against their abuser. It is discriminatory to have a defence available to householders defending themselves but not to women in abusive relationships defending themselves against someone who they know can be dangerous and violent towards them.

In the week that Sarah Everard was abducted and, we suppose, killed—because remains have been found in a woodland in Kent—I argue that, at the next opportunity for any Bill that is appropriate, I might put in an amendment to create a curfew for men on the streets after 6 pm. I feel this would make women a lot safer, and discrimination of all kinds would be lessened.

However, once convicted, women’s chances of successful appeal are extremely slim. Society’s understanding of domestic abuse has come such a long way, even in the last few years, yet a jury is forced to apply outdated ideas of self-defence, such as responding to a threat of imminent harm, which have no relation to the realities of domestic abuse.

The Government have said that they are persuaded on the issue but will

“monitor the use of the existing defences and keep under review the need for any statutory changes.”

I simply do not believe that that is true. It is not appropriate for the sort of crimes that we are talking about. As such, can the Minister please tell me which Minister is charged with this review, how many civil servants are involved and when will they report?

Photo of Lord Paddick Lord Paddick Liberal Democrat Lords Spokesperson (Home Affairs)

My Lords, my noble friend Lady Hamwee has already set out our support for all three of these amendments but I want to address the Minister’s remarks in Committee on Amendment 50.

I have seen misogyny described as the hatred of women who fail to accept the subordinate role ascribed to them by a patriarchal society, who fail to conform to the misogynist’s belief that women should be no more than compliant and decorative, whose role is to serve the needs of men. Out of such a false and outdated narrative comes the idea that physically stronger men should stand and fight while physically weaker women should run away. I am very sad to say that this appeared to be the Government’s position when we discussed these amendments in Committee.

In Committee, the Minister said correctly that what is sought is an extension to the current provisions to enable victims of domestic abuse to have the same level of protection as those acting in response to an intruder in their home. That is, the degree of force used in self-defence by the defendant would have to be grossly disproportionate rather than simply disproportionate.

The Minister suggested that judges have developed common law defences and that we should trust them to apply these to domestic abuse cases. However, the Government did not trust the judges when it came to someone acting in response to an intruder in their home, passing primary legislation to change the acceptable degree of force to include disproportionate force in such circumstances by means of Section 76 of the Criminal Justice and Immigration Act 2008.

The Minister took up the challenge I put to him to demonstrate the difference between this amendment and Section 76. He said that in the case of an intruder, the householder is put in a position where they are acting

“on instinct or in circumstances which subject them to intense stress.”—[Official Report, 3/2/21; col. 2285.]

He also noted that the amendment did not appear to deal with the defendant’s option to retreat. Section 76 makes it clear there is no duty for a householder to retreat. With the greatest respect to the Minister, I suggest that it would appear from the Government’s response that neither he nor those advising him have been the victim of domestic violence. I have, and I can tell the Minister that when you are cornered in your own home—the one place where you should feel safe—by an abusive partner who is using physical violence against you, you are subjected to intense stress and there is a distinct possibility that you will react instinctively.

As I said in Committee, in my experience, having been physically threatened by an intruder and having been physically assaulted by my then partner, the intense stress is far worse and sustained when the person you rely on for love and affection snaps and attacks you or subjects you to abuse over a prolonged time. My own experience of domestic violence is that retreat just encourages further violence. Why should a victim of domestic violence retreat but the victim of a burglary stand and fight?

As noble Lords will have gathered by now, I am not a believer in domestic abuse being defined as a gendered crime—that it is overwhelmingly male violence against women. In my case, it was the fact that my abusive partner was far stronger than me that meant he felt able to attack me. However, two-thirds of victims are women and the overwhelming majority of them will be victims of male violence. Men are, on average, physically stronger than women and abusive men may even seek out weaker women to facilitate their abuse. Women are therefore far more likely to have to resort to the use of a weapon in what would otherwise be an unequal physical contest when they are attacked by a male partner. Their use of force is therefore more likely to be considered disproportionate, albeit understandable.

We then had what appeared to be an attempt to cling to the wreckage of the Government’s failed arguments: the assertion that the amendment

“would need to be accompanied by guidance and training for the police, the CPS, the probation service, defence lawyers and the judiciary to ensure that it was applied as intended.”—[Official Report, 3/2/21; col. 2286.]

Well, I would jolly well hope so. Presumably, that is exactly what happened when the Government enacted Section 76 of the 2008 Act. If it was not a problem then, it should not be a problem now.

I have the utmost respect for the Minister and I take full account of the fact that he repeatedly prefaced his remarks in Committee with “We have been advised that”. But I suggest to him, for the reasons I have explained, that there is more of a case for this amendment than there is for Section 76 of the 2008 Act. Perhaps one of the reasons why the Government, and potentially noble Lords around the House, might disagree is that they may more easily envisage themselves in the situation of confronting an intruder than of being the victim of domestic abuse. I do not blame them for that. Personally, I never understood why battered wives went back to their abusers, until I became a victim of domestic violence myself.

I have been in both these situations: being attacked by an intruder and by a lover. From that objective position, I personally support Amendment 50 and we, as Liberal Democrats, support all the amendments in this group. I am glad that the noble Baroness, Lady Kennedy of The Shaws, has said that she will press her amendments to votes because we on these Benches will be voting with her.

Photo of Lord Kennedy of Southwark Lord Kennedy of Southwark Opposition Whip (Lords), Shadow Spokesperson (Home Affairs), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Housing) 9:30 pm, 10th March 2021

My Lords, Amendment 50 is proposed by my noble friend Lady Kennedy of The Shaws, along with Amendments 51 and 66. These amendments were debated in Committee and when my noble friend tests the opinion of the House at the end of this debate, the Labour Benches will support her. Today and during Committee my noble friend, and other noble Lords who have spoken, have highlighted how domestic abuse can lead to death. We all know of the terrible figures about women who die at the hands of a partner or former partner.

My noble friend’s amendment draws attention to the tragic situation where some women—the victims of the abuse—find themselves in the dock when they have in the end killed their abuser, often after years of horrific abuse and in situations where they feared they were going to be killed. The Sally Challen case is an example of where coercive control had not been fully understood by the courts; further, pleading self-defence has not been working for women. My noble friend, who has many years of experience in the criminal justice system, has told the House of truly tragic situations where women have not been treated fairly, or where the horror of the situation that they and their children found themselves in has not been properly appreciated.

These amendments seek to correct this imbalance and would, in my opinion, put the law in the right place by protecting those victims who have had to defend themselves in situations where they have feared for their life. The law should provide them with the ability to mount a defence, along with an understanding by the court of the horrors of domestic abuse and the need, when your life is in danger from an abusive partner or ex-partner, to take actions which are not grossly disproportionate to defend oneself.

As my noble friend said, a situation often plays out where a woman is taken along a route where she has to plead guilty to manslaughter and is convicted. On release from prison, such women have problems for the rest of their lives, for example with employment; they may also find that they have lost their home, or their children may be taken into care.

My noble friend also carefully explained the intent behind Amendment 51; the noble Lord, Lord Randall of Uxbridge, drew attention to his support for it. It mirrors the coercive control provisions of the Modern Slavery Act.

The noble Lord, Lord Paddick, asked a powerful question: why is it that victims of domestic abuse are meant to retreat while someone under attack from intruders in their home has greater protection? That cannot be right.

This has been a very good debate and I look forward to the Minister’s response. As I said, we on these Benches will certainly support the noble Baroness when she divides the House.

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

My Lords, I am extremely grateful to the noble Baroness, Lady Kennedy of The Shaws, for providing a full and detailed explanation of the reasons she believes that these amendments should be included in this Bill. In addition to the noble Lords who have spoken today, I am aware of the support that these proposals received last Thursday evening at the parliamentary event hosted by the noble Baroness and Jess Phillips MP on this subject. So that noble Lords do not think that only Kennedys can support other Kennedys, I join the noble Lord, Lord Kennedy of Southwark, in acknowledging and paying tribute to the noble Baroness’s work in, and experience of, this area.

The noble Baroness has put two amendments before the House; they are conceptually distinct, so I will address them in turn. Amendment 50 deals with the defence of the reasonable use of force by victims of domestic abuse who, in self-defence, react to violence from an abusive partner. Amendment 51 would create a new statutory defence for victims of domestic abuse who commit a criminal offence. The third amendment, Amendment 66, is intimately linked to and logically consequent on Amendment 51.

I turn first to the reasonable use of force and Amendment 50. Although the Government are wholly sympathetic to the plight of victims of domestic abuse, we are unpersuaded that there is a gap in the law here that needs to be filled. Nor do we feel that the circumstances of a victim of domestic abuse, who has often experienced that abuse over a prolonged period, are necessarily comparable to that of a householder who suddenly finds an intruder in their home and acts instinctively.

Let me expand on that point. Section 76 of the Criminal Justice and Immigration Act 2008 covers a specific circumstance. Its focus is on those occasions where an intruder, who is unlikely to be known to the householder, puts the householder in a position where they react instinctively as a result of intense stress. By comparison, in domestic abuse cases, the response may not be a sudden instinctual one but may follow years of physical and/or emotional abuse.

Furthermore—and this is an important point—the current law on self-defence and loss of control allows that any previous and extended history of domestic abuse be taken into account. I respectfully disagree with the point made by the noble Baroness, Lady Jones of Moulsecoomb, that the law on self-defence is, to use her word, outdated. It is not. As a result, it does not seem necessary to extend Section 76 of the 2008 Act to a wider set of circumstances as proposed by this amendment, given the defences that already exist in law.

I note too that no mention has been given in this new clause to a defendant’s option to retreat from the abuse, and I make that point with due care. I acknowledge, and am well aware, that an abused woman or man may not have that option. However, although Section 76 of the 2008 Act makes clear that there is no duty to retreat, the option to retreat remains a factor, and, where that is established on the facts of the particular case, it is a matter that will always be taken into account.

Therefore, although I warmly reciprocate the kind words that the noble Lord, Lord Paddick, said about me, and while I respect and acknowledge his personal history and experience, about which he has spoken extremely movingly on a number of occasions, I know that he will not like what I am going to say. I stand by the points that I have just made about the comparison or lack thereof between the householder situation and the situation of a victim of domestic abuse. I think at one point he came close to an implied charge of misogyny. I respectfully say that that does not easily sit with my approach to many amendments to the Bill or indeed the way in which I have dealt with the Bill itself. The issue between us is one of principle.

I am aware too that the noble Baroness who proposed the amendments has stated that there are difficulties with establishing the common-law defence of self-defence in cases of reactive violence by a survivor of domestic abuse against their abusive partner or former partner. As I stated in Committee, the ethos of the Bill is to improve and provide better support for victims of domestic abuse and to recognise and indeed highlight the wide-ranging impacts and implications of such behaviour. In raising the profile of domestic abuse, the Government hope to strengthen not only statutory agency support for victims and survivors but to improve the effectiveness of the justice system in better protecting those who suffer such abuse while bringing perpetrators to justice.

To that extent, I share the aims of the right reverend Prelate the Bishop of Gloucester. I assure her that this is not a question of finance; it is a question of the proper approach that the law should take in this area. That is because it is important for the Government to ensure that there is fair and equal access to justice for all. The law has to balance both the recognition of the abuse that has been suffered and the impact that it has had on a victim against the need to ensure that people, wherever possible, do not revert to criminal behaviour. I was pleased to hear that the noble Baroness, Lady Hamwee, agreed with me, at least on the latter proposition. The Government believe that that balance is currently reflected in the law—a law that continues to evolve but nevertheless strikes the right balance between those factors.

In making that last point, I referred in Committee to the fact that courts can often be quicker, more nuanced and more flexible in developing the common law than can Parliament in introducing a statutory provision that can be too rigid and narrowly drawn and may become more problematic than useful. I expressed myself as a fan of the common law, and I confirm again this evening that my enthusiasm for it is undimmed. Of course I agree with the noble Baroness, Lady Hamwee, that sometimes Parliament can lead the way—but not here.

Before I conclude my remarks on this amendment, I shall reply to one other point made by the noble Baroness, Lady Jones. She said that the Government have moved on several parts of the Bill, so why not this one? The reason is that, for the reasons I have set out, there is a principled argument that we make and which we stand by. I suggest that that argument is rooted properly in the way that the law is now applied and in the distinction between the domestic abuse case and the householder case. Towards the end of her remarks, the noble Baroness asked me a couple of quickfire questions. I am not sure that I have picked them all up, so if, on reading the Official Report, I find that they are relevant to this amendment, I will respond to them.

Although the Government are sympathetic to the aim behind Amendment 50, we remain entirely unpersuaded that it is needed, given the current defences that exist in law and the increased help, support and advice that will be available to victims of domestic abuse throughout the rest of the Bill.

I now turn to the conceptually distinct Amendment 51 and the linked Amendment 66. These propose a statutory defence for victims of domestic abuse who commit an offence. These amendments provide such a new statutory defence for victims of domestic abuse who commit a criminal offence and set out the offences to which the defence for victims of domestic abuse who commit an offence will not apply. The Government here also remain unpersuaded. We are unpersuaded that the model on which the proposed new clause is based—Section 45 of the Modern Slavery Act 2015—is either apt or effective.

I make four broad points in this context. First, we are particularly concerned about the anomalies that these amendments could create for other offences. As I stated in Committee, there are a range of serious offences to which the Section 45 defence does not apply. They are mainly serious sexual or violent offences, and the Section 45 defence does not apply to avoid creating legal loopholes through which serious criminals could escape justice. They are set out in Schedule 4 to the 2015 Act, which the amendment here seeks to replicate. While I note that the proposed new schedule seeks to replicate that list of excepted offences, pinpointing the behaviour that caused the offence nevertheless remains problematic. If we accept that the proposed statutory defence of compulsion to do an act is attributable to a person being a victim of domestic abuse—rather than a victim of trafficking, slavery or other relevant exploitation under the Modern Slavery Act—the question becomes: at what point in time, and to what type or level of domestic abuse, should any statutory defence be available?

When it comes to providing a defence to a potentially serious criminal charge, it is not appropriate simply to say that there can be any level of abuse that gives rise to such a defence, which is a complete defence to the charge, or that such abuse can be defined, as the Bill does—and I am proud of that—in the widest possible sense. That is not the case with the provisions relating to modern slavery. The defence there does not apply to the widest definition of exploitation of a person, but instead applies to behaviour which meets an existing criminal offence threshold—a threshold for a reasonable person to withstand behaviour directed against them. We are concerned about what could amount to domestic abuse in this context, and therefore what could trigger this absolute defence. That means that the position is so wide-ranging that it potentially provides a full defence to any criminal act, save those offences specifically listed. That is the first broad point.

Secondly, the Government are also concerned that a full defence for a defendant who has been subject to domestic abuse would create difficulties for other defendants who had been subject to other forms of harm, such as racial harassment or sexual harassment from strangers.

Thirdly, the proposed statutory defence would not only overlap with existing defences and prosecution policies, but undoubtedly cause confusion as to which law or policy would be applicable. Uncertainty within the criminal law is not to be welcomed, as it increases the risk of making the law inconsistent, unfair and possibly ineffective. That is not in the interests of justice.

Fourthly, the Government are aware of anecdotal evidence from law enforcement partners and others that the Section 45 defence is being misused. I made that point in Committee. There are reports that some offenders are falsely claiming that they are victims of modern slavery to escape justice. That is a very worrying development. It is why the Government are now working with criminal justice partners to assess how that defence is being used in practice, and why the Government are so cautious about the creation of a similar defence which might also be abused in a similar manner.

There are currently several defences potentially available in law to those who commit offences in circumstances connected with their involvement in an abusive relationship or situation. There are full defences—duress and self-defence—as well as, in homicide cases, the partial defences of loss of control or diminished responsibility. These defences are available to a defendant who is a victim of domestic abuse. Full defences, including duress and self-defence, are defences to any crime and, if pleaded successfully, result in acquittal. Partial defences, such as diminished responsibility and loss of control, reduce a charge from murder to manslaughter.

Moreover, where a person accused of a criminal offence has been subjected to domestic abuse, this will be considered throughout the criminal justice system, from the police investigation, through the CPS charging decision, to defences under the existing law, and finally as a mitigating factor in sentencing. One thing the Bill does is raise awareness and understanding of the devastating impact of domestic abuse on victims, survivors and their families. But defendants also need to make sure that their legal representatives and the CPS are aware, as soon as possible, of whether they have previously been a victim of domestic abuse and provide details of their domestic abuse history, as this will have an impact on any charging decisions and when considering guilty pleas.

That will need to be offset against the recognition of the harm done by the perpetrator of the crime, and the impact on the victim. It is important to ensure, as I said earlier, that wherever possible, people do not resort to criminal behaviour. It is this ethos that is currently reflected in the law and which seeks to strike the right balance between these various factors. For those reasons, the Government are unable to support the need for a new statutory defence, or indeed for a new defence on the reasonable use of force by victims of domestic abuse. Given that defences are available now in law, and given that courts can interpret and take account of any previous history of domestic abuse in their consideration of a case before them, amendments seeking new defences are considered unnecessary and likely to prove extremely problematic in their application in practice. We will keep the current defences under review.

In response to the point made by the noble Baroness, Lady Hamwee, about the discussion of the Bill in another place, there is a distinction between the defence to an offence, which is what we are talking about, and the sentencing approach, which is, I think, what she was referring to.

We will keep the position under review but, for the reasons I have set out, we have principled objections to both amendments. The noble Baroness, Lady Kennedy, intends to divide the House on each amendment and, as she has given that intimation of her intention, I invite all noble Lords to reject each of them.

Photo of Baroness Kennedy of The Shaws Baroness Kennedy of The Shaws Labour

My Lords, I am of course disappointed but not surprised by the response, as it was indicated that I would not receive the response that some other amendments have. It is regrettable, because all the evidence points towards problems in both these areas. There are women being convicted of crimes where they have clearly been coerced and their abusive partners are forcing them to commit crime. In relation to homicide and, indeed, lesser crimes, self-defence is not available to women because of the “disproportionate” issue. The measure should be just the same as in the intruder case. The distinction that the noble Lord seeks to make between that and the householder is really without merit and not convincing. I am sure he is having to read from a brief and he will know himself.

Anyone who really knows about domestic abuse knows that this is instinctive: when someone snaps, in the end, it is because they cannot take any more. That is why they reach for a weapon; they know that they cannot take on the sort of force that they have experienced in the past. This is a failure of understanding. It is being unable to stand in the shoes of someone in these circumstances.

I do not blame the noble Lord, Lord Wolfson, in any way. It is just that there is a process of learning here, which we have all been on. It may be easier to understand someone nearly being strangled, but harder to understand the moment when, instinctively and in terror, a person who has been abused over a long period suddenly reaches for a weapon in their defence. Not to understand that is regrettable, so I will move both these amendments and test the opinion of the House.

Ayes 298, Noes 241.

Division number 3 Domestic Abuse Bill - Report (2nd Day) — Amendment 50

Aye: 298 Members of the House of Lords

No: 241 Members of the House of Lords

Ayes: A-Z by last name

Nos: A-Z by last name

Division conducted remotely on Amendment 50

Amendment 50 agreed.