Amendment 277

Police, Crime, Sentencing and Courts Bill - Committee (10th Day) – in the House of Lords at 5:00 pm on 22nd November 2021.

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Baroness Kennedy of Cradley:

Moved by Baroness Kennedy of Cradley

277: After Clause 170, insert the following new Clause—“Section 6 of the Sexual Offences Act 1956: removal of time limitationProceedings for the offence under section 6 of the Sexual Offences Act 1956 (intercourse with a girl between thirteen and sixteen) are not to be barred only by virtue of the passage of time since the date of the alleged offence.”

Photo of Baroness Kennedy of Cradley Baroness Kennedy of Cradley Non-affiliated

My Lords, I shall speak to Amendment 277 in my name and I fully support Amendment 292C in the names of the noble Baroness, Lady Newlove, and others.

In 2004, when this House also acted in its judicial capacity, it considered an appeal by a Mr J, who had been convicted of three counts of indecent assault and one count of gross indecency with a child. Mr J, 35 years, had seduced the 13 year-old daughter of a friend. The charges of indecent assault actually related to full sexual intercourse. There was no doubt that he did those acts, for which he was originally sentenced to three years’ imprisonment, but this House quashed the convictions for indecent assault. The reasons why are still relevant today. Men who seduced girls between the ages of 13 and 16 before 1 May 2004 are now immune from prosecution on account of this case. It is still possible to do something about this, but legislation is needed, hence my amendment.

The problem is that sexual offences committed before 1 May 2004 must be prosecuted under the Sexual Offences Act 1956. Under that Act, the applicable offence is unlawful sexual intercourse, as outlined in Section 6. In the 1956 Act, there is a time limit of one year from the alleged commission of the offence under Section 6. Proceedings must therefore be instituted within a year from then. This time limit is clear and unambiguous and can be found in paragraph 10 of Schedule 2 to the Act.

The problem had been going on for some time, since before May 2004, but prosecutors were for a long time able to evade the time limit. Instead of charging for underage sexual intercourse, which could not be done if the offence was discovered or prosecuted too late, they would charge for indecent assault in relation to the same underage sexual intercourse.

That is where the J case comes in. Mr J argued that this was impermissible and the House accepted that argument. Since that time in 2004, men who procured sexual intercourse from vulnerable and impressionable girls before 1 May 2004, perhaps introducing them to like-minded friends, have been practically immune from prosecution. The only applicable offences in the 1956 Act were time-barred as a result of the time limit relating to underage sexual intercourse.

To avoid confusion, I should say that the time limit problem does not apply where the offence has been committed since 1 May 2004. If a man had sexual intercourse with a girl aged between 13 and 16 after 1 May 2004, he can be prosecuted for the new offence of sexual activity with a child. That was created by the Sexual Offences Act 2003 and no equivalent time limit is applied to it.

Many cases, however, are historical in nature and precede 1 May 2004. The 1956 Act must then still be applied, with all its anomalies—including this time limit. In theory, if two women came forward today and woman 1 reported abuse that took place on 30 April 2004 while woman 2 reported abuse that took place the next day, on 1 May 2004, only woman 2’s case would proceed, because the modern law of the 2003 Act applies to only her case.

Some may read this speech and question why I am assuming female victims and not children of any gender. Here, the story gets worse still. This time limit applies only to offences committed against underage girls; if the victim were a boy, it would be different, as historical cases of sexual intercourse between men and boys under 16 can still be prosecuted. The time limit applies only to girls. How can the law deny justice and discriminate in this way and this House not seek to put it right?

In fact, we can find anomaly after anomaly in this area. In my research, I read the work of Dr Jonathan Rogers, assistant professor in criminal justice at Cambridge University, who gives a full account of them. For example, Mr J was in fact still punished for the act of gross indecency with a child which related to oral sex with the same consenting child. It is incomprehensible that oral sex with the abused girl could be prosecuted at any time while the sexual intercourse had to be prosecuted within one year.

Some may say this is a past problem, but it is a present one, because we are still uncovering abuses that happened before 1 May 2004. Historical sexual abuse is, sadly, coming to light too frequently in the news. We know that girls are regularly threatened into silence for long periods. Many girls are victimised in this way and recognise themselves as victims or have the confidence to go to the police only much more than one year later. That is well known.

Something else may come to light that encourages them to bravely break their silence. This was illustrated in May 2013 when the BBC highlighted the case of two women who were told they could not press charges against their former teacher because of the 12-month time limit. One of the women said:

“I didn’t understand how they could have gone the best part of the year and I would just be hearing about that. It was horrible. I just collapsed on the floor and just felt I had gone through this horrendous ordeal for nothing.”

There is no way of knowing if this is affecting 1,000 women or just a few. The CPS keeps tallies of cases it has prosecuted, but does not keep a record of cases discontinued at an early stage, such as when the time limit problem is noticed. There must be hundreds of thousands of cases where men seduced a girl aged between 13 and 16 before 1 May 2004 but those victims for various reasons never told the police during the next year. I do not believe that we should need much evidence of the extent of the problem to justify the removal of the time limit. Nor would we open the floodgates by allowing justice to be done now: the CPS would proceed only where the evidence is strong and it serves the public interest, as in the case of much older abusers such as Mr J.

Some may object that you cannot retrospectively make law in this way, but I believe that is wrong. It is true that you cannot retrospectively create new offences and punish people for them, but here the relevant offence always existed. Amendment 277 is just changing the rules relating to trials for those offences.

It has always been understood that rules of evidence and procedure can be amended and have immediate effect in subsequent trials, regardless of when the acts complained of actually happened. Is it not the case that courts would always try people according to contemporary law on procedure and evidence and would not normally think to ask whether such law applied at the time of the offence? The noble and learned Baroness, Lady Hale, said in the case of J, when referring to the time limit:

“It is a procedural bar which brings a fortuitous advantage to a defendant”.

As I understand it, Article 7 of the European Convention on Human Rights applies to the definition of offences and defences, but not matters of procedure, which includes time limits.

Finally, some may argue that this amendment risks exposing those who were prosecuted for some other offence relating to the sexual intercourse to being prosecuted again, this time for the offence of underage sexual intercourse. That is not my intention with this amendment, but it is a point well made. To resolve this issue, on Report, an additional provision could be added to the Bill which states:

“Nothing in the above section shall permit the trial of a person who has already been convicted of an offence relating to the sexual intercourse in question.”

In conclusion, the CPS has been silent about this problem for many years, but it is quite right for us to use the legislation now before us to put this right. I have spoken to Dr Jonathan Rogers, whose work on the matter has been peer reviewed by other criminal lawyers, and I thank him for all his support on this issue.

I am not a lawyer—in this debate, that may become apparent—and am aware that noble Lords may quote sections of the law or results of judgments that I will not have the breadth of knowledge to reply to in great detail today. However, I will take all points made on board, read more and consult further with noble Lords who are willing to engage with me. I ask and hope that the legal minds in this Chamber and the Government will resolve this issue within the Bill, as I strongly believe this time limit is wrong. I therefore also ask the Minister to meet me and Dr Jonathan Rogers to discuss this further before Report.

Let us take the opportunity of this Bill to right a wrong. There are still women who are denied justice for what happened to them in their early teenage years and men who can be fairly tried. Let them now be tried if the CPS considers the evidence strong enough and that the case still merits prosecution. I beg to move.

Photo of Baroness Brinton Baroness Brinton Liberal Democrat Lords Spokesperson (Health) 5:15 pm, 22nd November 2021

My Lords, I wish to support both amendments, and echo the very strong points made by the noble Baroness, Lady Kennedy of Cradley, regarding Amendment 277, which relates to Section 6 of the Sexual Offences Act 1956 and removing the time limitation on proceedings for the offence of intercourse with a girl aged between 13 and 16.

This appears to be a loophole left over from the Sexual Offences Act 2003, as ably argued by Jonathan Rogers of Cambridge University in his chapter in a book analysing the law on historic offences. He referred to the case of J, outlined by the noble Baroness, Lady Kennedy, earlier, affecting cases where the offence occurred before 2004. In that chapter he says that a workaround regarding the time limit on reporting offences was:

“In the years leading up to the SOA 2003, this unusual time limit proved to be tolerable only because it used to be evaded (!), namely by charging instead indecent assault under section 14 of the SOA 1956, for which the underage girl could also not give effective consent, but for which no time limit was provided in the statute. So ‘rough justice’ could still be done, and it frequently was.”

His chapter goes on to explain that much of the law, including subsequent judgments, is grounded in

“a toxic mixture of misogyny, prejudice and ignorance.”

Reading evidence from the Independent Inquiry into Child Sexual Abuse and its various specific reports on child sexual abuse in certain areas of society, it is absolutely clear that victims—especially child victims—of sexual abuse often find it difficult to come forward at the time. It is worrying, therefore, that there has to be a workaround to deal with a law that reflects late Victorian society’s attitudes to girls aged 13 to 16 being abused.

Amendment 292C asks for an extension of time limits for prosecutions for common assault in domestic abuse cases. I look forward to hearing the noble Baroness, Lady Newlove, speaking to her amendment, and propose to speak briefly only on one common theme that links these two amendments.

In 2017, the Ministry of Justice responded to a petition to Parliament that sought to remove time limits on the victims of domestic abuse getting legal aid, saying:

“Respondents to the survey in particular felt that the time limit is arbitrary—respondents felt that a victim does not stop being a victim after the passage of time. Similarly, they felt that the risk of experiencing violence does not necessarily dissipate over time.”

There is substantial evidence to show that many women—it usually is women—do not report the first, second or even 10th incident of domestic violence. The reasons for this are many, but fear of the behaviour of their partner is key. They may also still be in a relationship with the abuser, and there is the worry—too often well founded, sadly—that they will not be taken seriously when they report the behaviour. The current six-month time limit means that many common assault charges time out and the women cannot access justice, and the protection and support that the justice process can offer them is denied.

Both amendments seek to change the time limits. First, there is a loophole that needs to be sorted out in a 21st century world that understands child sex abuse better than seven decades ago, let alone in the late 19th century. Secondly, they seek to extend the time limit to up to two years for domestic abuse victims to be able to report their abuse to the police. I shall be glad to support both amendments. The courts and prosecutors should not have to rely on workarounds.

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

My Lords, as the former Victims’ Commissioner, I am amazed by these time limits. To find our domestic abuse victims were being constantly told they were timed out beggars belief in the 21st century, considering we can buy an item in our homes that has a 10-year guarantee, a two-year guarantee, or whatever, yet common assault has six months. What does that say about how we look at human lives?

Under current rules on common assault, any instances of common assault, regardless of context, must be reported within six months of the incident occurring. If a report is made outside this six-month period, there is no option, as has been said, for the police or the CPS to bring charges and, unless there are other charges to be brought, the alleged perpetrator faces no further action.

The CPS definition of common assault is

“any act by which a person intentionally or recklessly causes another to suffer or apprehend immediate unlawful violence.”

It does not necessarily have to include literal physical violence; it can include raising a fist, spitting or using threatening words.

The reason for the rule is that we need cases to travel through the system quickly—especially considering recent court backlogs and long delays across the system. However, the rules on common assault are built on the assumption that crimes can be reported quickly and easily. This might be the case for a fight in the street with a stranger, but it cannot and should not be applied to domestic abuse contexts.

Regarding the impact on victims, most will not even know that this law exists until they come forward and find that it is too late. They will make the hugely brave decision to come forward and make a report to the police, only to be told that time has run out and there is nothing to be done. Victims are being left completely in the dark.

Perpetrators, however, will often have the support and guidance of a legal representative, especially if they have offended in the past. It is highly likely that perpetrators are much more aware of this time limit than the victims—some perpetrators may even use this loophole in the law to their advantage.

The time limit not only allows perpetrators to carry on abusing, it emboldens them to do so. There are sure to be cases where a victim has come forward with their report; it has failed due to the time limit, and they have faced further abuse and violence as punishment or retribution for telling the police. The time limit in its current form is putting victims in harm’s way.

The offences covered by common assault—threatening words, raising a fist and spitting—are the types of crime that can easily escalate if perpetrators are not stopped. The time limit is preventing any kind of intervention. The message being sent to victims by the current law is that common assault is not important enough to prosecute, and that victims will be listened to only if they have been more seriously hurt.

Common assault is often the only charge left to lay. Police officers have spoken to me about their frustration in trying to reach the higher evidence threshold for actual bodily harm or coercive control and being told by the CPS that it should be downgraded to common assault instead. However, because of this rule, it is often too late. A dangerous perpetrator is allowed to go free and will probably go on to offend again, against the same victim or someone new.

Police forces have also spoken about the complexity of investigating domestic abuse. It can often require extensive digital investigation and the need to gather medical and forensic evidence. All this takes time and often cannot be done in a six-month window, even if the victims report straightaway.

There are examples of victims coming forward with reports a month or two after an incident occurs—so within the time limit—but cases still failing because they cannot be adequately investigated in the time left. So, it is not just about victims coming forward, it is about the complex nature of domestic abuse, which is not currently reflected in the law.

BBC figures obtained through freedom of information requests show that nearly 13,000 cases of common assault in the domestic abuse context were closed due to the time limit between 2016-17 and 2020-21. Only 30 of the 43 police forces in England and Wales responded to the freedom of information request, so the real figure is likely to be much higher. In the same period, the number of common assaults flagged as domestic abuse increased by 71%. Meanwhile, the number of these common assaults that resulted in charges being brought fell by 23%.

What do the numbers tell us? They tell us that thousands of victims of domestic abuse are being failed by this time limit every year. Instances of common assault in a domestic violence context are increasing, but the number of perpetrators being charged is decreasing. The numbers are going in the wrong direction in every way and, again, the victims are paying the price.

All this is against the backdrop of a criminal justice system that is consistently failing to protect and support victims of domestic abuse. Prosecutions are going down, as they are for rape. A recent report from the criminal justice inspectorate—a fantastic report, but very sad reading—showed that an incredibly high number of victims of both domestic abuse and rape are dropping out of the system and cases are closing. Victims are losing faith in the system and deciding that it is far better to end the process completely.

The aim of my Amendment 292C is to increase the time limit from six months to two years for common assault cases flagged as domestic abuse. I recognise the need to have time limits in place to allow cases to move through the system as quickly as possible and to give police forces targets for investigations. However, a six-month limit simply does not work in the context of domestic abuse and the figures outlined above prove this. A two-year time limit gives far more time and space for victims to come forward, and gives the police the time they need to fully investigate cases and bring forward evidence that is more likely to lead to a successful prosecution.

The hope is that this change to the law would help boost prosecutions for domestic abuse and stop dangerous perpetrators before they go on to reoffend. The amendment is supported by the domestic abuse commissioner, as well as Refuge, Women’s Aid and the Centre for Women’s Justice, all of which have shared case studies from their work with victims and are certain that this change will make a real difference.

I ask my noble and learned friend the Minister to reply to these questions. On 22 October, the media was briefed that the Government would support the campaign to extend the time limit, but we have not had any further detail as yet. We have not been able to get any further confirmation from the Home Office about what form its support will take. Yvette Cooper wrote to the Home Secretary on 19 November. Key questions to the Government are whether they will support my amendment or table their own and, if they table their own amendment, what its exact wording will be. Will the Government’s version extend the time limit to the full two years?

It is important that changing the law is in the interest of victims, as much as possible. They have suffered under this time limit for far too long and, as the former Victims’ Commissioner, I am tired of listening to these women—mostly women—who have gone for support but have been left out on a limb yet again. Leaders from across the violence against women sector contributed to this amendment. They have worked with victims and understand their real-life experiences and what law changes are needed to protect them, so I urge the Government to accept this amendment in full to reflect their work.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour 5:30 pm, 22nd November 2021

My Lords, I support both noble Baronesses’ amendments and urge the Minister to accept them with alacrity or, if that is not possible, to work with the noble Baronesses and parliamentary counsel to achieve the compelling intentions behind both amendments.

The last thing my noble friend Lady Kennedy of Cradley needs to do is apologise to the Committee for not being a lawyer because, if I may say so, her speech in support of her amendment combined every ounce of detailed legal reasoning with a humanity of which any lawyer would be proud. The anomaly to which she refers goes back to the 1956 Act, which sat around on the statute book before the 1997 Labour Government conducted a sex offences review. Clearly, this anomaly has not been corrected.

This particular offence is very grave, and it should never have had a time limit. In criminal law, we understand why certain lesser offences should be time-limited. We would not want every ordinary common assault or minor act of shoplifting not to be subject to a time limit, with this sword of Damocles potentially hanging over young people for the rest of their lives. We understand the public policy reasons to have time limits, but I suggest that to have them for such grave offences is contrary to the rule of law and fundamental human rights. The anomaly to which my noble friend Lady Kennedy of Cradley spoke so well clearly puts this jurisdiction in violation of Article 3 of the European Convention on Human Rights, and probably Article 14, on account of the various types of discrimination that are also involved—between not just boys and girls at the time, but children and adults who did not consent. We rightly assume that young children do not have the capacity to consent.

My noble friend Lady Kennedy is so right that the rule against retrospectivity is a presumption against changing the substance of a criminal offence. She put the point well: it is not there to prevent us from dealing with procedural obstacles that are unconscionable, as she is attempting here. So I see no problem at all with retrospectivity, because it would be contrary to any notion of human rights or justice for a defendant charged today, tomorrow or as soon as this is enacted, to argue that he thought he was in the clear because enough years had passed since this terrible crime. Even with substantive changes to criminal law, there have been exceptions to the presumption against retroactivity, as we saw in the higher courts some years ago when the position on marital rape was changed. In one case, the defendant said, “This is not fair; I raped my wife when I thought I was allowed to.” In any event, this is a procedural matter that is standing in the way of dealing with a terrible anomaly and human rights violation that will be ongoing unless we deal with it.

As to Amendment 292C in the name of the noble Baroness, Lady Newlove, and her supporters, common assault can be a minor enough offence in certain contexts, such as the two young people who have a fight. It is fine to leave a short time limit for that, but domestic abuse is a very particular context in which the victim, whoever in the family they are, may well still be in the abusive situation within those two years. Rather than create a separate specific offence of common assault domestically, why not deal with it in the fairly neat way that the noble Baroness, Lady Newlove, has?

If the Minister or his colleagues disagree with me, no doubt they, with the aid of parliamentary counsel, can come up with the right fix. However, I say to this Committee that both of these matters need to be dealt with not in future but with this vehicle. Frankly, there are lots of things in this very large Bill that I do not agree with, but the Bill would do something good if these two matters were tackled immediately.

Photo of Lord Russell of Liverpool Lord Russell of Liverpool Deputy Chairman of Committees

My Lords, I was very happy to put my name to the amendment in the name of the noble Baroness, Lady Newlove, but first I will refer briefly to Amendment 277. The first thing I have to say is that, as any inhabitant of the West Midlands will know, the noble Baroness who moved the amendment is the noble Baroness, Lady Kennedy of Cradley. It is pronounced “Cradely”, not “Cradley”—it is a bit like “Chumley” instead of “Cholmondeley”.

My second point is this: the point made by the noble Baroness about the amount of time that sometimes elapses before individuals feel able to come forward is a moot one. Yesterday evening, I watched a new programme with my daughter. It was a documentary on a well-publicised streaming platform that begins with the letter “N”; I will not advertise it here. The programme is called “Procession” and deals with the way in which five men, all of whom were the victims of predatory Catholic clergy 30 to 40 years ago, have finally started being able to talk about what happened to them and come to terms with it. When something like that happens to one at that age—in this particular instance, these young men were even younger than the people we are talking about, aged between 13 and 16—it does not take a brilliant imagination to work out the sort of trauma that it must instil in people and how difficult it can be even to recognise it oneself, let alone bring oneself to talk to others about it. The noble Baroness’s point was well put; it will be hard to disagree with her.

On Amendment 292C, first, I put on record my thanks—indeed, our thanks—to Yvette Cooper, who has been pursuing this forensically in another place. Her latest attempt was made today when she asked the Home Secretary directly what her view on this is and whether anything will happen. I am not clear why we are debating this amendment at all because, on 5 July, Victoria Atkins, now in the Ministry of Justice but the then Home Office Minister, said this in the House of Commons when talking specifically about this same amendment:

“We take this issue very seriously, and I can assure the House that we will return with a proposal at a later stage. I certainly do not rule out an amendment, if appropriate, in the Lords. This must be looked into”.—[Official Report, Commons, 5/7/21; col. 572.]

There it is on the record.

As the noble Baroness said, the Home Office seems to have developed a sort of hotline with certain reporters in the BBC, where certain potential developments are briefed to the BBC, which puts them out fairly prominently. There is then complete radio silence; there is no acknowledgement by the Government or Home Office in any way, shape or form that a briefing took place, so we are left in a slight quandary as to whether it did or not. Unlike some noble Lords, those of us on the Cross Benches have a high enough regard for the BBC that we tend to believe it when it comes out with something like this, so I find this practice of putting these things out into the public domain then saying nothing about them somewhat unhelpful. Frankly, it is a sort of legislator abuse since many of us are trying to do our best in talking on behalf of others and it is confusing when the Government apparently say one thing to the media and then stand at the Dispatch Box and say something similar to what they have been saying, sometimes for many years. My noble friend Lady Newlove put the case clearly.

It is moot to remember that only 70% of the police forces that were asked to respond to Freedom of Information requests by the BBC actually responded. If you do the maths, this means that the figures we have are about 30% underreported. The volume of types of assault that have been reported as being related to domestic abuse have soared, particularly during the pandemic. In the law of unforeseen consequences, one result of the welcome developments that the Government are making through the Domestic Abuse Bill and some of the ancillary legislation is the likely possibility that more of these instances will be reported because, one hopes, more women will have sufficient confidence to go the police and get a responsive response. More and more police officers are being trained to recognise domestic abuse and respond appropriately. Let us assume, first, that more women will, we hope, report. Secondly, we hope and expect that the police will respond more positively and quickly. However, if that is the case, we will have created another problem for ourselves because there will be a logjam in the system in trying to cope with the increased volume. That is a compelling reason for the two-year extension of the time limit for after these assaults are reported. If we do not do that, everything will come to a huge, legislative constipatory stop, which is in nobody’s interest. I look forward to the Minister’s response.

Photo of Lord Hunt of Kings Heath Lord Hunt of Kings Heath Labour 5:45 pm, 22nd November 2021

My Lords, I have added my name to the amendment in the name of the noble Baroness, Lady Newlove; I also support my noble friend in her powerful advocacy for her own amendment.

I want to emphasise a couple of points made by the noble Baroness. She referred to HMIC report, Police Response to Violence Against Women and Girls. I must say it makes for very sober reading about the inadequate response of many police forces to these issues. We know from the report and from the statistics referred to by the noble Lord, Lord Russell, that many cases do not proceed through the criminal justice system and, of the offences that do come to the attention of the police, many do not proceed any further. I would not argue that time limits are the sole reason, but they are a factor. I am indebted to Refuge, which does fantastic work in this area, for setting out some of the challenges that particularly women experiencing domestic abuse face and why they delay reporting incidents of common assault. They may feel understandably traumatised or physically unsafe immediately after the incident. They may still be in a relationship with the perpetrator. They may be dealing with the traumatic and logistical challenges of fleeing the scene.

Due to the six-month time limit on charging summary common assault offences, by the time many women are ready to speak to the police, they are told that the charging time limit has passed and there are no further opportunities for them to seek justice against their perpetrator or access protection through criminal restraining orders. There are so many reasons why, quite legitimately, women in particular are not able to come forward and meet the time limit. I appeal to the Minister not to respond with a typical ministerial response but to say that he will take this away and look at it. I echo the point made by the noble Lord, Lord Russell. I have noticed the practice of announcements being made in the media about what the Home Secretary is going to do but then often dying a death. We realise that sometimes they are flying a kite to see how it lands, but this is not the way to do business on such sensitive and important issues. I hope that the Minister will bring us comfort.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, I, too, support these amendments. I shall add two very brief points in relation to Amendment 277, which was moved by the noble Baroness, Lady Kennedy. First, the noble Baroness referred in her speech to the Appellate Committee decision in R v J. The Committee may be interested to know that in that decision Lord Bingham of Cornhill, the senior Law Lord, said at paragraph 15 that the history of the 1956 Act

“has been shown to result in much internal inconsistency and lack of coherence”.

His Lordship added that the fact that an unambiguous statutory provision—and it is unambiguous—is

“anachronistic, or discredited, or unconvincing” does not enable a court to do anything about it. This Committee and Parliament are, of course, under no such inhibition, and for the reasons that have been given, I hope we will do something about it.

The only other point I want to make is that any defendant in any criminal case who believes that the passage of time results in unfairness to them is perfectly entitled to submit to the court that it would be an abuse of process for the trial to continue. They are perfectly entitled so to argue, but that is not a reason why we should not amend the law in the way suggested.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General

My Lords, I am disappointed that the noble Lord, Lord Pannick, did not refer to the opinion of the noble and learned Baroness, Lady Hale, in the case of J. She dissented—notwithstanding Lord Bingham’s inability to change the law—in these words:

“In short, the 1956 Act was a mess when it was enacted and became an ever greater mess with later amendments. It is not possible to discern within it such a coherent Parliamentary intention as to require it to be construed so as to forbid prosecution for a “mere” act of sexual intercourse after 12 months where that act properly falls within the definition of an indecent assault. Although we do have to try to make sense of the words Parliament has used, we do not have to supply Parliament with the thinking that it never did and words that it never used.”

I think we can see which side the noble and learned Baroness, Lady Hale, was on in that case.

The restriction has had an interesting history. Non-consensual sex was, and is, of course, rape, but consensual sex was a different matter. A girl was protected until the age of 10 under Queen Elizabeth I, to the age of 12 under George IV, 13 in 1875 and finally 16 in 1885. The time limit for bringing proceedings was at first within three months in 1885, which was increased to six months in 1904 and to nine months in 1922, and a provision of the Criminal Law Amendment Act 1928 increased the time limit to 12 months. It was anomalous then, and it is anomalous now, and I fully support the amendment in the name of the noble Baroness, Lady Kennedy of Cradley.

Amendment 292C in the name of the noble Baroness, Lady Newlove, seeks to extend normal time limits imposed on summary proceedings in the magistrates’ court and suggests that an offence of common assault may be brought within a period of six months from the date of reporting, rather than the date of the incident, with an outside limit of two years where it comes within the ambit of domestic abuse. This is an issue that might well have been discussed in the recent passage of the Domestic Abuse Bill. Summary proceedings are really intended to be summary. Assault and battery are attacks or threats of attack on the person. If significant injuries are caused, they should be tried on indictment in the Crown Court as ABH—assault occasioning actual bodily harm. So where is the dividing line between common assault and ABH?

The noble Baroness, Lady Newlove, referred to the CPS guidance Offences Against the Person, Incorporating the Charging Standard, dated 6 January 2020, which states that common assault is charged

“where injuries amount to no more than … Grazes; Scratches; Abrasions; Minor bruising; Swellings; Reddening of the skin; Superficial cuts.”

By contrast, ABH includes

“damaged teeth or bones, extensive and severe bruising, cuts requiring suturing” and injuries

“that result in loss of consciousness.”

ABH is appropriate where

“the victim is vulnerable or intimidated”, including

“a pattern of similar offending against the victim”, and if a person suffers mental stress, that can also be seen as ABH. Your Lordships will appreciate that if the case is brought for ABH on indictment, this procedural limitation of the magistrates’ court does not apply.

Therefore, it is arguable that injuries of the nature that require interfering with the customary time limit applied in summary proceedings may not demand a change. I think the protections which are contained in the Domestic Abuse Act 2021 should deal with the problems in the area referred to by the noble Baroness, Lady Newlove. If a domestic abuse protection order is issued, breach of it is a criminal offence, which can be triable either way. A summary conviction may lead to a sentence of 12 months’ imprisonment, while conviction on indictment may lead to a term of imprisonment not exceeding five years.

This is the important point: a protection order can be made where the court is satisfied on the balance of probabilities. The prosecution does not have to prove beyond reasonable doubt that the victim has suffered. It is on the balance of probabilities for a protection order: simply that the person concerned has been abusive towards a person aged 16 or over to whom he or she is personally connected, where it is necessary and proportionate to protect that person from domestic abuse or the risk of domestic abuse. No time limits are set. I think we have moved on from common assault at common law in this field, and it may well be that this amendment is unnecessary.

Photo of Lord Ponsonby of Shulbrede Lord Ponsonby of Shulbrede Shadow Spokesperson (Justice), Shadow Spokesperson (Home Affairs)

My Lords, I support both these amendments. My noble friend Lady Kennedy of Cradley is seeking to get rid of time limits relating to having sex with girls aged between 13 and 16 before 1 May 2004. As she said in her comprehensive introduction to the amendment, it is not known whether this anomaly, which a number of noble Lords have described, affects thousands of girls or fewer. It is simply not known. Nevertheless, from my understanding of the way she presented the case and the other comments on the amendment, it clearly seems to be a loophole which could be closed.

The noble Baroness, Lady Newlove, explained why common assault is different in domestic abuse cases from general common assault. As I think I have said in other Committees, I fairly regularly sit in domestic abuse courts in magistrates’ courts, and I have to say that I disagree with the concluding comments of the noble Lord, Lord Thomas of Gresford, that we seem to have moved on from common assault with domestic violence protection orders. Certainly, the way I view them, and I do those courts as well, they are very different because they are dealing with the civil standard. You can have cases where people have simply been abusive to each other and you are dealing with a very different type of case, in my experience, from common assault cases which you see in a more standard domestic abuse court.

I want to pick up the point made by my noble friend Lady Chakrabarti. She put it very clearly that there is no offence of domestic common assault; there is no such thing, only common assault. However, one way of recognising that common assault in a domestic context is different—we are told repeatedly, and certainly this is my experience, that it happens repeatedly and maybe in an escalating way—is by extending the time limit up to two years. That seems to me like quite a neat fix, rather than coming up with a separate charge altogether. I thought that was a succinct way of expressing why the amendment of the noble Baroness, Lady Newlove, is a good one.

In the introduction of my noble friend Lady Kennedy, she asked for the intervention of a number of lawyers—and, my goodness, towards the end of this debate, she got it. We have heard from Lord Bingham and the noble and learned Baroness, Lady Hale. We have heard from the noble Lord, Lord Thomas, the history of how these types of offences against girls have been charged over the last 150 years or more. I hope that has given my noble friend Lady Kennedy—as it has certainly given me—something to ponder. We strongly support both amendments.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland 6:00 pm, 22nd November 2021

My Lords, I thank the noble Baroness, Lady Kennedy of Cradley, for her amendment.

For the victim of a crime to be told that the culprit cannot be prosecuted because a time limit has elapsed would doubtless be the cause of, at the very least, dissatisfaction and, at the very worst, anguish, and may very well lead to a loss of confidence in the criminal justice system. That is why, in respect of offences that are serious enough to be capable of being tried in the Crown Court, such time limits are virtually unknown in our system of criminal law in England and Wales. That differentiates England and Wales from many other jurisdictions, where time limits apply even to the most serious offences.

In England and Wales, the only exceptions are certain customs offences and offences of unlawful but consensual sexual intercourse, which I shall refer to as USI, with a girl aged 13 to 15 years committed before 1 May 2004, when the Sexual Offences Act 2003 came into force. The statute which that Act replaced, the 1956 Act—I extend apologies to the noble Lord, Lord Ponsonby of Shulbrede, for yet further legal history here—included a requirement that a prosecution for USI with a girl aged between 13 and 15 must be commenced within 12 months of the offence. That requirement was highly unusual even when it was enacted, and it was duly removed by the 2003 Act. I am sure that members of the Committee will echo the words of the noble and learned Baroness, Lady Hale, quoted by the noble Lord, Lord Thomas of Gresford, in relation to the 1956 Act.

That was an anomaly, as the noble Baroness, Lady Chakrabarti, and other noble Lords have described it in our discussion today. However, when it was removed in 2003 it was done so only prospectively, from the point when the Act came into force; in relation to offences that would fall to be charged under the 1956 Act, the time limit remained.

As your Lordships are aware and have heard again today, Parliament usually acts on the principle of non-retroactivity. Removing the time limit in circumstances where a prosecution was already time-barred, while it would not have amounted to substantive retroactivity in the sense of criminalising conduct that was not previously unlawful, would have exposed a person to criminal liability where there had been none before. Thus, Parliament’s aversion to retroactive legislation also applies to fundamental procedural preconditions for the bringing of charges against an individual. In relation to that—the point was canvassed by the noble Baroness, Lady Chakrabarti—I make reference to the case before the European Court of Human Rights called Antia and Khupenia v Georgia. Oh, for a Lord Russell of Georgia, that I might be corrected for any mispronunciation of the names of any plaintiffs in that matter.

For that reason, we do not consider it would be right to disregard the time limit in the increasingly rare cases in which it would apply. Since the changes in the 2003 Act were not made retrospective at that time, I submit that it would be difficult to justify now extending them to cases in which prosecution has been time-barred for at least the intervening 17 years—even allowing for the development in our understanding of sexual crime, as referred to by Members of this Committee who contributed to the debate.

I join the noble Baroness, Lady Chakrabarti, the noble Lord, Lord Russell of Liverpool, and others in acknowledging the skill and humanity with which the noble Baroness, Lady Kennedy of Cradley, presented her amendment to the Committee. I am grateful to the noble Baroness for expressing a willingness to meet. I would be delighted to meet her at any time, but I think it would be more convenient for her, for the purposes purely of this amendment, to meet with my noble friend Lord Wolfson of Tredegar, the Minister in charge. I have taken steps by electronic means during the discussion in the Committee to arrange that my noble friend is made aware of her desire to meet, and an appointment will be fixed.

Photo of Baroness Chakrabarti Baroness Chakrabarti Labour

Obviously I will go and read the Georgian case—I will call it “the Georgian case” so as not to repeat my earlier offence in relation to my noble friend—but, before any meeting, I will just say one thing. The Georgian case is now being cited as the reason why the Government will not move in my noble friend’s direction. I repeat my concern that we are currently in breach of the convention on human rights, not in relation to an Article 7 point but in relation to an Article 3 violation in relation to any woman, of whatever age, who now says “My statutory rapist will not be dealt with”. The Georgian case is up against cases such as X in the Netherlands and all the other cases where people were barred from getting redress in the criminal courts. That needs to be considered by the Minister as a senior law officer in Her Majesty’s Government.

If our positions were reversed and I had to face these two potential challenges in the European Court of Human Rights—a man who says “I had the opportunity to run Lord Pannick’s arguments about delay but none the less I was convicted of a historic statutory rape and I say that is a violation of my Article 7 rights” versus a woman who says “My rapist was not dealt with because of this time limitation”—I know which of those challenges I would rather defend as Her Majesty’s Government.

Photo of Lord Stewart of Dirleton Lord Stewart of Dirleton The Advocate-General for Scotland

My Lords, I acknowledge the long-standing interest and expertise of the noble Baroness, Lady Chakrabarti, in this field. Her words will have been noted by the Bill team listening in on this, and I assure her and the Committee that that matter will be examined.

My intention was to turn now to the terms of Amendment 292C. Again, I am grateful to my noble friend Lady Newlove and the noble Lord, Lord Russell of Liverpool, for raising this issue in the Committee and, in so doing, raising a matter that, as your Lordships have heard, the Government have acknowledged in the other place to be an important one. The amendment would have the same effect as one tabled during the passage of the Bill through the other place, both in Committee and on Report—that is, to alter the period of six months allowed for bringing

“summary proceedings for an offence of common assault or battery involving domestic abuse”, as defined by the Domestic Abuse Act 2021, so that it ran not from the commission of the alleged offence but from its being reported to the police within two years. I sense that the Committee will be as one in agreeing that it is essential that victims have confidence in the justice system—confidence that it is a fair, impartial system that will support them when they come forward.

A number of noble Lords who have given their views on this amendment have spoken of the context of domestic violence, in which these matters take place. We know it may take many attempts before victims of domestic abuse finally leave the abusive relationship, and that this may cause delay in reporting crimes to the police. When the Bill was in the other place, we acknowledged the concerns about the possible effect of the six-month time limit for prosecuting summary-only offences—common assault in particular—in domestic abuse cases. Again, there is no disagreement between us about the importance of domestic abuse victims being able, practically, to seek justice. They should not be frustrated in so doing by the standard time limits set by Section 127 of the Magistrates’ Courts Act 1980, should the evidence indicate that this time limit is too short in this context.

We were clear in the other place that this is an issue that must be looked into. The Home Office has been working to obtain data on cases that appear to have been brought to an end through the operation of the current time limit. I am also aware of the media coverage, to which the noble Lords, Lord Russell of Liverpool and Lord Hunt, referred. I note the concern expressed that, for whatever reason, it would appear that matters are being submitted to the press in advance of proper scrutiny by Parliament. Being aware of those concerns, I will relay them to the appropriate quarters.

I can confirm to the Committee today that we agree that there is a problem here and that domestic abuse-related crimes are disproportionately likely to be timed out. The Domestic Abuse Act demonstrated clearly this Government’s determination to address domestic abuse, and throughout its passage we showed our willingness to listen and take additional steps to address this abhorrent crime. It is important that we develop a proportionate response to this issue, so I ask for the patience of the Committee while we complete consideration of the matter and finalise our proposals. As the previous Minister for Safeguarding at the Home Office—now Minister of State at the Ministry of Justice—the Member of Parliament for Louth and Horncastle, Victoria Atkins, has stated, that might include an amendment. We will complete our consideration shortly, and I assure the Committee that we will return with a proposed course of action on Report.

I hope all Members of the House with an interest in this subject, including the noble Baroness, Lady Greengross, who spoke on it on Second Reading, will be reassured by what I have been able to say. Therefore, on the clear understanding that we agree there is a problem to resolve and that we will be able to return to the issue with our conclusions on Report, I urge the noble Baroness to withdraw her amendment at this stage.

Photo of Baroness Kennedy of Cradley Baroness Kennedy of Cradley Non-affiliated

My Lords, I am grateful to all noble Lords and noble and learned Lords who have spoken in today’s debate and supported my Amendment 277 and Amendment 292C in the name of the noble Baroness, Lady Newlove, and others. I am heartened by the debate. I thank the Minister for his reply; however, I am disappointed that the retrospective argument is the main one being given for not moving ahead to change this legislation. But I am hopeful and grateful for the agreement to meet the noble Lord, Lord Wolfson, to discuss this issue further before Report. I thank my noble friend Lady Chakrabarti for potentially giving me another reason—Article 3—for this legislative change. I will go and read the case cited around the article and discuss this directly with her to add the argument to my armour.

I should like to put on record my thanks to the noble Baronesses, Lady Brinton and Lady Newlove, and all noble Lords who spoke about how the restrictive time limits prevent justice being given to abused girls and women. It takes so much time and confidence to come forward. It takes energy and everything the victims can muster to challenge and stand up and be counted in these cases. To then be told that you did not come forward soon enough and that is somehow your fault is heartbreaking and wrong. The law is failing these victims, and I hope that this Chamber can work together to put down amendments that will be agreed by the Government on Report. I repeat that I am hopeful that the meeting with the noble Lord, Lord Wolfson, will come to a conclusion and that it will allow this Chamber to right this wrong, stand up for these women and girls, and give them the satisfaction and the justice they are currently being denied.

Amendment 277 withdrawn.