No defence for consent to death

Domestic Abuse Bill – in a Public Bill Committee at 10:30 am on 16th June 2020.

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‘(1) If a person (“A”) wounds, assaults or asphyxiates another person (“B”) to whom they are personally connected as defined in section 2 of this Act causing death, it is not a defence to a prosecution that B consented to the infliction of injury.

(2) Subsection (1) applies whether or not the death occurred in the course of a sadomasochistic encounter.”—

This new clause would prevent consent of the victim from being used as a defence to a prosecution in domestic homicides.

Brought up, and read the First time.

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office)

I beg to move, That the clause be read a Second time.

Photo of Karen Buck Karen Buck Labour, Westminster North

With this it will be convenient to discuss the following:

New clause 5—No defence for consent to injury—

‘(1) If a person (“A”) wounds, assaults or asphyxiates another person (“B”) to whom they are personally connected as defined in section 2 of this Act causing actual bodily harm or more serious injury, it is not a defence to a prosecution that B consented to the infliction of injury or asphyxiation.

(2) Subsection (1) applies whether or not the actual bodily harm, non-fatal strangulation, or more serious injury occurred in the course of a sadomasochistic encounter.”

This new clause would prevent consent of the victim from being used as a defence to a prosecution in cases of domestic abuse which result in serious injury.

New clause 6—Consent of Director of Public Prosecutions—

In any homicide case in which all or any of the injuries involved in the death, whether or not they are the proximate cause of it, were inflicted in the course of domestic abuse, the Crown Prosecution Service may not without the consent of the Director of Public Prosecutions, in respect of the death—

(a) charge a person with manslaughter or any other offence less than the charge of murder, or

(b) accept a plea of guilty to manslaughter or any other lesser offence.”

This new clause would require the consent of the Director of Public Prosecutions if, in any homicide case in which any of the injuries were inflicted in the course of domestic abuse, the charge (or the plea to be accepted) is of anything less than murder.

New clause 7—Director of Public Prosecutions consultation with victim’s family in domestic homicides—

‘(1) Before deciding whether or not to give consent to charging a person with manslaughter or any other offence less than the charge of murder in an offence of homicide in which domestic abuse was involved, the Director of Public Prosecutions must consult the immediate family of the deceased.

(2) The Lord Chancellor must make arrangements, including the provision of a grant, to enable the immediate family to access legal advice prior to being consulted by the Director of Public Prosecutions under sub-section (1).”

This new clause would require the Director of Public Prosecutions to consult the immediate family of the victim before charging less than murder in a domestic homicide and provide the family with legal advice so they can understand the legal background.

New clause 10—Prohibition of reference to sexual history of the deceased in domestic homicide trials—

If at a trial a person is charged with an offence of homicide in which domestic abuse was involved, then—

(a) no evidence may be adduced, and

(b) no question may be asked in cross-examination, by or on behalf of any accused at the trial,

about any sexual behaviour of the deceased.”

This new clause will prevent the victim’s previous sexual history being used as evidence to prove consent to violence in a domestic homicide case. This draws on the legislative measures in the Youth Justice and Criminal Evidence Act 1999 to prevent rape defendants raking up or inventing complainants’ previous sexual history.

New clause 11—Anonymity for victims in domestic homicides—

‘(1) Where a person (“A”) has been accused of a domestic homicide offence and where the person (“B”) against whom the offence is alleged to have been committed has died in the course of sexual activity, no matter likely to lead members of the public to identify a person as B shall be included in any publication.

(2) The matters relating to a person in relation to which the restrictions imposed by subsection (1) applies (if their inclusion in any publication is likely to have the result mentioned in that subsection) include in particular—

(a) the person’s name,

(b) the person’s address,

(c) the identity of any school or other educational establishment attended by the person,

(d) the identity of any place of work,

(e) any still or moving picture of the person.

(3) If, at the commencement of the trial, any of the matters in subsection (2) have already appeared in any publication, the judge at the trial may direct that no further reference to any of these matters may be included in any publication.

(4) If any matter is included in a publication in contravention of this section, the following persons shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale—

(a) where the publication is a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;

(b) where the publication is a relevant programme—

(i) anybody corporate engaged in providing the programme service in which the programme is included; and

(ii) any person having functions in relation to the programme corresponding to those of an editor of a newspaper;

(c) in the case of any other publication, any person publishing it.

(5) For the purposes of this section— “domestic homicide offence” means an offence of murder or manslaughter which has involved domestic abuse; a “publication” includes any speech, writing, relevant programme, social media posting or other communication in whatever form, which is addressed to the public at large or any section of the public (and for this purpose every relevant programme shall be taken to be so addressed), but does not include an indictment or other document prepared for use in particular legal proceedings.”

This new clause will provide the victim of a domestic homicide with public anonymity.

New clause 14—Anonymity of domestic abuse survivors in criminal proceedings—

‘(1) Where an allegation has been made that a relevant offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the survivor.

(2) Where a person is accused of a relevant offence, no matter likely to lead members of the public to identify the person against whom the offence is alleged to have been committed as the survivor shall during the survivor’s lifetime be included in any publication.

(3) This section does not apply in relation to a person by virtue of subsection (1) at any time after a person has been accused of the offence.

(4) The matters relating to a survivor in relation to which the restrictions imposed by subsection (1) or (2) apply (if their inclusion in any publication is likely to have the result mentioned in that subsection) include—

(a) the survivor’s name;

(b) the survivor’s address;

(c) the identity of any school or other educational establishment the survivor attended;

(d) the identity of any place where the survivor worked;

(e) any still or moving pictures of the survivor; and

(f) any other matter that might lead to the identification of the survivor.

(5) At the commencement of a trial at which a person is charged with a relevant offence, the judge may issue a direction for lifting the restrictions only following an application by or on behalf of the survivor.

(6) Any matter that is included in a publication in contravention of this section must be deleted from that publication and no further reference to the matter may be made in any publication.

(7) If any matter is included in a publication in contravention of this section, the following persons shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale—where the publication is a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;

(a) where the publication is a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;

(b) where the publication is a relevant programme—

(i) any body corporate or Scottish partnership engaged in providing the programme service in which the programme is included; and

(ii) any person having functions in relation to the programme corresponding to those of an editor of a newspaper;

(c) in the case of any other publication, any person publishing it.

(8) For the purposes of the section—

“publication” means any material published online or in physical form as any well as any speech, writing, website, online news outlet, social media posting, relevant programme or other communication in whatever form which is addressed to the public at large or any section of the public.

a “relevant offence” means any offence where it is alleged by the survivor that the behaviour of the accused amounted to domestic abuse.

“survivor” means the person against whom the offence is alleged to have been committed.”

This new clause provides lifetime press anonymity for survivors of domestic abuse, and reflects similar protections for survivors of sexual assault enshrined in the Sexual Offences (Amendment) Act 1992. It prevents identifiable details from be published online or in print, and creates a new offence for breaching this anonymity.

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office)

I rise to speak not with my own voice, but with those of my right hon. and learned Friend Ms Harman and Mark Garnier. I am better at doing one of those voices than I am the other, but I shall try to do justice to both.

The short term for this subject—given that we are debating short titles—is the “rough sex defence”. Other such terms are “Strangled to death in kinky sex romp,” “Woman shot in the vagina in a sex game gone wrong,” and, “Accused killed barmaid during kinky sex session.” Over the last few years, any one of us might have seen this type of headline. They are salacious, tacky and often used as clickbait. We all know that sex sells, but these headlines trivialise what is actually occurring. Women are being murdered and the men who killed them are exploiting a loophole in the law. The “rough sex defence”, as it has become known, is when a woman is killed in what the perpetrator defends as consensual violence. That means that, if your partner left you with 40 separate injuries, dreadful blunt force injuries to your head, a fractured eye socket and vaginal arterial bleeding, but explained that you had consented to such acts and that your death was simply a sex game gone wrong, there is a good chance that your murderer will end up with a lesser charge or a lighter sentence, or your death may not even be investigated.

The horrific injuries I just described were inflicted on Natalie Connolly. Her killer, John Broadhurst, left her to die at the bottom of the stairs, in a pool of her blood. She died of internal bleeding from 40 injuries that he inflicted on her body. He claimed that she insisted on rough sex, so it was her fault, not his. His lurid descriptions of what she insisted he do to her were unchallengeable. Not only did Mr Broadhurst kill Natalie, but he was able to entirely shape the narrative around her death, as she was not there to speak for herself.

That is why I support new clauses 10, 11 and 14. Currently, if a man assaults a woman during sex but falls short of killing her, she is in a much stronger position. She can tell the court that she did not consent, and the law gives her anonymity as a victim of a sex offence. The law bans him from using her previous sexual history in evidence of his defence, although that does not always work. But if he goes the whole way and kills her, she cannot give evidence, she has no anonymity, and his version of her previous sexual history is splashed all over the papers and compounds the grief of her relatives. This is a double injustice: not only does the man kill her, but he drags her name through the mud.

I cannot imagine the hurt and trauma of families who have already lost a daughter, sister, aunt or mother to have to hear the man who killed her describing luridly what he alleges about her sexual proclivities. Of course, she is not there to speak for herself; he kills her and then he defines her. We cannot allow that to continue to happen. We have the opportunity here to make these amendments, so that no victim is posthumously defined by their murderer.

Natalie’s case rightly caused widespread outrage, as her killer escaped a murder charge and was convicted only of manslaughter. He was sentenced to just three and a half years. We cannot have violence against woman and girls continually undercharged. Three and a half years! It is unfathomable.

New clause 6 would require consent from the Director of Public Prosecutions to charge anything less than murder in a domestic homicide. The rough sex defence has proved to be a powerful argument in court and has led to prosecutors backing down from a murder charge in favour of manslaughter, believing that they will stand a better chance of securing a conviction. New clause 7 would require the Director of Public Prosecutions to consult the immediate family of the deceased before deciding whether to give such consent and to provide them with adequate legal advice so that they can understand the legal background. Natalie’s grieving family said that they were not adequately supported in understanding why the charge was being dropped from murder to manslaughter, and what that would mean for the sentence.

We Can’t Consent To This found 67 recent cases of people in the UK who were killed during so-called sex games gone wrong; 60 of them were female. Following the deaths of those 60 women and girls there were 37 murder convictions, but in three of those cases, the deaths were treated as non-suspicious results of sex games until other evidence emerged—respectively, a confession to a friend, dismemberment of two other women, and a further review by a pathologist. They were not investigated as murder or even violent acts until, in one of those instances, the perpetrator had dismembered two other women. Seventeen cases resulted in manslaughter charges, with sentences of three years and upwards; five were subject to no charge, or found not guilty; and one case has yet to come to trial. In nearly half the cases, a murder conviction was not secured.

In the past five years, 18 women and girls have been killed in claimed consensual violent sexual activity. In 10 cases, the man was convicted of their murder; in six cases, the conviction was for manslaughter, and in one, there was no conviction. In one further case, there was a murder conviction only when the victim’s husband confessed to the crime; police had treated her violent death as non-suspicious. One woman’s death has yet to come to court. No one can consent to his or her own death, and it is time this defence was made no longer available.

Photo of Fay Jones Fay Jones Conservative, Brecon and Radnorshire

The hon. Lady is making an extremely powerful speech. There are far too many cases to name them all, but I wanted to pay tribute to my colleague and hon. Friend Laura Farris, who spoke so movingly about this issue on Second Reading when she mentioned the cases of Laura Huteson and Anna Banks. I feel that both their names ought to be on the record.

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office)

I could not agree more, and thank the hon. Lady for her intervention. Any opportunity to get women’s names on the record, especially those who have died, is absolutely fine with me.

New clause 5 arises from similar considerations, stating that where serious harm has occurred during sex because of the behaviour of one person, consent does not exist. We Can’t Consent To This found 115 cases of women who had been injured in non-fatal assaults that those accused said they had consented to. Examples of the non-fatal injuries that were claimed to be due to consensual sex include: being slashed in the back with a knife; two black eyes; being strangled; being punched in the stomach; being held against a wall and slashed with a knife, causing permanent disfigurement; being electrocuted with mains electricity; and a woman being throttled with a shoelace by a man she had met for sex—in that case, the strangulation was so severe that some of her brain cells died when the blood flow was interrupted.

In one case brought to the attention of my right hon. and learned Friend the Member for Camberwell and Peckham this year by a solicitor, prosecutors declined to pursue charges against a man accused of sexual assault because of fears he would claim it was consensual sexual behaviour. In deciding not to proceed, the CPS prosecutor said in a letter to the complainant,

“A prosecution could follow in relation to this offence, but the courts have shown an interest in changing the law so that the suspect could say that you consented to these assaults. This would be difficult to disprove,” for reasons set out earlier in the letter.

“If I prosecuted this offence it is likely to lead to lengthy legal proceedings in which the background to the case would have to be visited as far as the sexual practices that led to and accompanied the infliction of the injuries. In my opinion it is not in the public interest to pursue this charge” in isolation.

We Can’t Consent To This, the campaign group, has found evidence of 67 cases in the past 10 years. That defence should never have been open to those defendants.

Photo of Christine Jardine Christine Jardine Liberal Democrat Spokesperson (Home Affairs), Liberal Democrat Spokesperson (Women and Equalities) 10:45 am, 16th June 2020

It is a world of difference, but talking about this sort of consent, I find my mind is thrown back 20 or 30 years to the original arguments about rape and consent. Does the hon. Lady share my disappointment that we have not moved on?

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office)

I absolutely share the hon. Lady’s frustrations. The truth of the matter is that we are talking about specific cases where this defence could easily be leaned on, and we are trying to shut those loopholes. There are only really three defences in a rape case. One is mistaken identity: it was not the accused, but someone completely different. Another is that it just did not happen, full stop—luckily, science has moved quicker than social science. The final one is that she or he consented. That is usually the one that is leaned on, because, unfortunately, it is much more difficult to prove than it is to rape.

Pre-existing case law, R v. Brown, makes it clear that a person cannot consent to injury or death during sex. However, in 45% of cases where a man kills a woman during sex and claims she consented to it, this defence works. We cannot let that continue.

If a man can convince police, prosecutors, coroners, a judge or even a jury that the woman was injured during a consensual act, he may see the following outcomes: he is believed; police do not investigate it as a crime or no charges are sought by prosecutors; prosecutors opt to pursue a manslaughter charge, ensuring a far shorter sentence than for a murder charge; mitigation in sentencing due to no intention to kill. Extreme sexual and sadistic violence is not treated as an aggravating factor in sentencing because it is accepted on his say so that she consented to it. All those outcomes are entirely acceptable today.

Photo of Peter Kyle Peter Kyle Shadow Minister (Justice)

There are many aspects of the cases that my hon. Friend is outlining that are extraordinarily disturbing and painful to understand. There is another one: the impact on the victim’s family. For them to sit there, coping with the death of their loved one, and then to hear that their loved one consented to these kinds of brutalising factors must cause pain beyond comprehension. Should we not remember the victims in all of this?

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office)

Absolutely. Even just from a personal perspective, the idea of my parents having to listen to conversations about me having sex at all is a harrowing thought, but we are talking about people who have lost their loved one having to listen to such things. The point about anonymity is made in rape cases, but there is no similar level of anonymity in this instance for a bereaved mother, father, brothers and sisters having to hear about vicious abuse, while somebody takes to the stand to say that the victim wanted it and loved it.

I have seen cases that would make most people’s toes curl, but I have to say that I have been deeply affected by this case. I have become a bit of an old hand at some things, but the Connolly case is so harrowing that I cannot imagine how her family have coped with it.

The law should be clear to all: a person cannot consent to serious injury or death. But the case law is not up to the task. When a woman is dead, she cannot speak for herself. Any man charged with killing a woman, or a current or former partner, should simply say, “She wanted it.” This is why we must change the law and urge the Government to accept these amendments.

Photo of Peter Kyle Peter Kyle Shadow Minister (Justice)

I rise to say a few words about new clause 14. It seeks to grant anonymity in the press to survivors of domestic abuse, should they request it. In recent days, the front page of one of our national newspapers covered an instance of domestic abuse in really quite grim terms. It failed to point out the consequences of it, and did not report any remorse whatsoever. That kind of most insensitive reporting still makes its way on to the front page of papers.

We know the counter-case, too. In the wake of the Leveson inquiry, we know that these issues are sensitive. We must be fully aware of the need for the press to do their job in as unencumbered a way as possible. The Independent Press Standards Organisation, the largest independent regulator of the newspaper and magazine industry in the UK, has no guidance whatever for journalists on how to report domestic abuse cases. There is only a short blog, which suggests that journalists heed to how domestic abuse charities would like cases reported locally. The industry has acknowledged the issues relating to the reporting of domestic abuse, but no action whatever has been taken.

It is clear that the Government and Parliament need to speak, and we need to guide the industry through legislation. The issue has become so pronounced because stories are published in which victims and survivors of domestic abuse are named, as well as family members and children. When these stories make their way on to websites, which is where the majority of people read news these days, victims have no anonymity. Underneath the story, there is a plethora of people discussing and naming people, saying, “I heard this”, or “I heard that she was that”; the irony is that they are all anonymous. They are benefiting from an anonymity that the victims do not have. These issues are cast in a new light in the modern era, whereas regulations are distinctly old-fashioned.

Journalists are struggling on how to deal with the issue. I recognise that, and have spoken to many of them. It is not wholly the responsibility of the press, because when it comes to other crimes and their survivors, it is set out in law how journalists are to respond. The keystone piece of legislation providing anonymity is the Sexual Offences (Amendment) Act 1992, which gives survivors of sexual assault the right to press anonymity, and lays out the circumstances in which that right can be waived.

The Government have already shown support for the spirit of the new clause in legislation for survivors of other crimes such as the Serious Crimes Act 2015, which grants anonymity to and protection for alleged victims of female genital mutilation. In section 2 of the Modern Slavery Act 2015, victims of any human trafficking offence are granted anonymity. The Government are willing to grant anonymity to certain types of people, and it is striking that a person has the right to anonymity if they are the victim of sexual violence, but not if that sexual violence occurs within a relationship and in a home. These proceedings cast that anonymity in a new light. The new clause would provide similar restrictions on how the press could report on survivors of domestic abuse, so that it would not be left to individual publications to make that decision. In today’s hyper-competitive media world, where there are shrinking readerships and a move to online news, the issue is more important than ever.

The domestic abuse charity RISE in my constituency has been vocal about the need for this change. It reports that if the survivors they care for are named in the press, they are less likely to report domestic abuse in the first place. One service user provided testimony about the impact on their life of being named in the press:

“My daughter had to be informed by the school after the article named me as all the parents at school were aware, as well as the children because it was all over social media. It made me feel that I was still being controlled, I felt vulnerable and exposed. I feel so much hurt for my little girl, she didn’t need to know, the impact on her is huge, she is hypervigilant and gets very scared on the bus if someone is on their phone as she believes they are filming her. I never want another child to go through what my child went through.”

Another said:

“None of my family knew, neither did my employer. I felt a lot of shame and then seeing my name in the article and the awful comments made below the article were dreadful, there was racial abuse online. I felt sad, ashamed, embarrassed and violated. Something that took a lot of courage for me to report and everyone got to know about it. Even now I find myself googling my name for fear of it popping up again. There is an added layer of shame when I already had enough to process with regard to being abused.”

The Government have shown, through the development and scrutiny of the Bill, that they want it to stand the test of time. I believe that, as we move forward, the press becomes more competitive; there are more online opportunities to name and discuss people, and to tread over the line—particularly when someone in the public eye is subject to domestic abuse and the opportunity for media to make money from using that name becomes overwhelming. Some journalists might feel some shame about it, but for some it might be a choice between making money or income, and protecting a victim. I do not think that individual journalists should be put in that position.

We have an opportunity now to equalise the law and extend the protection of the anonymity given in cases of violent sexual crimes that occur outside the home, so that it is also given when crimes occur inside the home.

Photo of Alex Davies-Jones Alex Davies-Jones Labour, Pontypridd

Diolch, Ms Buck. I will be brief. I do not want to repeat the powerful words of my hon. Friend the Member for Birmingham, Yardley, but it is important to make the point that previous sexual behaviour is not, and should never be, taken as evidence of consent to a particular encounter. Neither should experience of or interest in any particular act be used to suggest that it is possible for someone to consent to their own murder, as has been the case in the past.

My hon. Friend the Member for Hove said that the media are complicit in sexualising and sensationalising horrific acts of violence and causing huge further trauma to the families of victims. Those victims—mainly women—and their families need anonymity.

A BBC study in 2019 found that more than a third of UK women under the age of 40 had experienced unwanted slapping, choking or gagging during consensual sex. Of the women who experienced those acts, 20% said they had been left upset or frightened. It is vital that women’s voices should no longer be silenced.

Photo of Alex Chalk Alex Chalk Assistant Whip, The Parliamentary Under-Secretary of State for Justice

It is once again a pleasure to serve under your chairmanship, Ms Buck. I thank colleagues for those helpful and powerful contributions. I want to begin my remarks by echoing a point that was made: we should not be shy in this place about making observations that are sometimes uncomfortable.

It seems to me a fact that there is a worrying and increasing normalisation of acts that are not just degrading but dangerous. Because we live in a liberal, open, tolerant society we of course do not want to step into the bedroom. We do not want to intrude into people’s private affairs, but when what they do leads to someone’s death we should not have any compunction about taking the steps necessary, first to ensure that people are safe, secondly to ensure that justice is done, and thirdly to send a message: if someone wants to behave in that way, when the consequences come to pass, on their head be it.

I am grateful to the Opposition Front-Bench spokespersons for making the case for the new clauses. Before addressing those in detail, I pay tribute, as others have, to my hon. Friend the Member for Wyre Forest, who is the constituency MP of Natalie Connolly and her family, and to the right hon. and learned Member for Camberwell and Peckham. They have run a formidable campaign and have engaged closely and constructively with the Government. I pay tribute to them for that.

My fellow Minister, my hon. Friend the Member for Louth and Horncastle, has temporarily departed, but I also pay tribute to her. She has met the family of Natalie Connolly and taken a close personal interest. She really recognises the seriousness of the issue, which all of us feel.

Before going into the detail of new clauses 4 and 5, let me say this: it is unconscionable for defendants to suggest that the death of a woman—it is almost invariably a woman—is justified, excusable or legally defensible simply because that woman consented in the violent and harmful sexual activity that resulted in her death. That is unconscionable, and the Government are committed to making that crystal clear.

A note of caution: as the Secretary of State for Justice said on Second Reading, this is a complex area of law. The law of homicide is of labyrinthine complexity, so there is a need to ensure that any statutory provisions have the desired effect—an effect that I do not think is controversial—and that they do not lead to any unintended consequences. We need to ensure that any change does not inadvertently, although with the best of intentions, create loopholes or uncertainties in the law that may be exploited by unscrupulous individuals who seek to carry out the type of crimes that we are talking about.

I will develop those observations by reference to the wording of the proposed new clause. As I and others have discussed with my hon. Friend the Member for Wyre Forest and the right hon. and learned Member for Camberwell and Peckham, new clauses 4 and 5, while on the right lines, might not have the effect that they seek.

Take a moment to look at new clause 4, which is headed “No defence for consent to death”. The words that I would stress in proposed new subsection (1) are

“to whom they are personally connected as defined in section 2”.

Clause 2 defines “personally connected” as “two people” who

“are, or have been, married to each other…are, or have been, civil partners…have agreed to marry one another (whether or not the agreement has been terminated)…have entered into a civil partnership agreement…are, or have been, in an intimate personal relationship”—

I stress “relationship”—

“have, or there has been a time when they each have had, a parental relationship”, or “they are relatives”.

Hon. Members will immediately spot the potential issue. What if people have not been in a relationship as defined in what will become section 2? One incident involved a British national in another jurisdiction, so I am necessarily cautious about referring too much to it, but what if someone is a Tinder date, for want of a better expression?

Photo of Peter Kyle Peter Kyle Shadow Minister (Justice) 11:00 am, 16th June 2020

The Minister is making a good point. As he knows, the opportunity to amend legislation does not come up often, and we often do not get the chance to amend the perfect piece of legislation. Using all his wit, experience and erudition, he is able to find the failings in the new clause, but a principle is at stake. If he is saying that this is not the ideal piece of legislation or method to achieve those aims, will he spend a bit of time telling us what is, whether he will back it and whether he will make it happen swiftly?

Photo of Alex Chalk Alex Chalk Assistant Whip, The Parliamentary Under-Secretary of State for Justice

I invite the hon. Gentleman to listen carefully to what I say in due course, and I hope that he will not be unhappy—

Photo of Alex Chalk Alex Chalk Assistant Whip, The Parliamentary Under-Secretary of State for Justice

Disappointed—thank you. Do you want to make the speech?

The concern with the new clauses, among other things, is that they do not necessarily replicate the dictum in Brown.  To those who are not familiar with this, a case more than 20 years ago, Crown v. Brown, laid down some case law—a point adverted to by the hon. Member for Birmingham, Yardley—that we recognise needs to be clarified. The point that I will develop in due course, which I think will find favour with the hon. Member for Hove, is that that is precisely what we intend to do. The concern is that these new clauses, for the reasons I have indicated—I will not go into any detail on new clause 5, because it is a similar point that I would seek to make—limit the application of the principles in Brown to offences that occur in a domestic abuse situation. I heard the hon. Member for Birmingham, Yardley say sotto voce, “Isn’t a Tinder date an intimate personal relationship?”. The reality is—I speak as someone who has defended as well as prosecuted—that the job of a defence advocate is to find whatever wiggle room there is in the law. Our job here is to close that down.

As I have indicated, the prosecution would have to show also that this activity was either not consensual, or was consensual and also amounted to domestic abuse. Again, defence counsel will be seeking to ask, “Is this really domestic abuse in circumstances where it is consensual?”. You can immediately see the arguments that would be made in court. The key is for us to close that down and give practitioners—but, more importantly, people—absolute clarity about what is and what is not acceptable. As I said at the outset, we need to ensure that any change made is clear, and does not inadvertently create loopholes or uncertainties in the law.

I invite the hon. Member for Hove to accept that despite the difficulties, we have been anxiously and actively considering for some considerable time how we can best ensure greater clarity in the law. We aim to set out the Government’s approach in time for Report.

Photo of Peter Kyle Peter Kyle Shadow Minister (Justice)

On behalf of the Opposition Front Bench, I thank the Minister for his comments and the considered way he made them. We particularly thank him for the timeframe he outlined. Making a statement before Report is incredibly important; we need to move swiftly. The Minister knows better than anyone that if the same thing happened to one other person in the coming weeks, it would be an absolute travesty, so we need to make sure that these loopholes are dealt with quickly.

Photo of Alex Chalk Alex Chalk Assistant Whip, The Parliamentary Under-Secretary of State for Justice

I hear what the hon. Gentleman has said, and I leave it where it stands. I understand and I agree. I turn to new clauses 6 and 7. Those who have argued passionately in respect of the so-called rough sex defence will acknowledge that perhaps this point is contingent on that. There are also real practical difficulties with new clauses 6 and 7. Let me develop them briefly.

New clause 6 requires the personal consent of the personal Director of Public Prosecutions where a charge or plea less than murder, for example manslaughter, is applied or accepted in cases of domestic homicide. That sounds unobjectionable. It would be perfectly sensible if the DPP was readily able or had the capacity to give that kind of personal consent. However, there are practical problems with it. Let me set out the context. A statutory requirement of this nature is, and should be, extremely rare. It should only be imposed where a prosecution touches on sensitive issues of public policy, not simply sensitive issues, which are legion in the criminal justice system. The only recent example of this consent function applies to offences under the Bribery Act 2010, and last year, a Select Committee undertaking post-legislative review of the 2010 Act recommended that the requirement for personal DPP consent be reconsidered.

We have to acknowledge that the Crown Prosecution Service handles a high volume of serious and complex casework nationwide, and it is important that prosecutors have the confidence to take their own legal decisions. Introducing requirements for personal DPP consent could serve to undermine or frustrate this approach. It would also, I am bound to say, potentially sit uneasily alongside other very difficult decisions that prosecutors have to make. Suppose, for example, in the context of a terrorist prosecution, that because of the way the evidence emerged, or because of new lines of enquiry, a decision was made to take the defendant off the indictment in respect of a bomb plot, but the prosecution said, “We are going to continue to prosecute him in respect of possession of materials that might be of assistance to a person planning an act of terrorism.” These are immensely difficult and sensitive decisions. However, there is neither the capacity nor the wherewithal for the DPP to make those personal decisions all the time.

It is sad to note that there is a high volume of cases involving domestic homicide, as the hon. Member for Birmingham, Yardley well understands. It means that charging decisions need to be made urgently, and sometimes at a speed, where no personal DPP involvement is possible.

These considerations apply equally to cases in which a lesser plea may be accepted. If pleas are offered in court, prosecutors are required to make a decision in an incredibly short period of time after speaking with the victim’s family, and the DPP could not be involved in that level of decision making. I invite the Committee to consider the circumstances, supposing it is in court: because of the way that the evidence has come out, there is the consideration of whether a lesser plea should be accepted. The hon. Lady pointed out that this does not always happen, but if the family have been properly consulted, it is no kindness to that family to say, ‘Do you know what? We’re not going to make a decision on this, which would let you begin to heal and put this behind you. We’re going to put this off for two or three weeks while the DPP has to consider it.’ Court proceedings will be suspended awkwardly, and the poor family will be left hanging.

Forgive me for stating the obvious, but it bears emphasising that the real remedy is for good prosecutors––the overwhelming majority are good and do their duty with diligence, conspicuous ability and conscientiousness– –to liaise with the family in a compassionate and inclusive way. I understand the desire for additional scrutiny in such significant and sensitive cases, but I assure the Committee that the Crown Prosecution Service already has systems in place to check and challenge decision making in these circumstances. Internal CPS policies require that chief crown prosecutors are notified of any and all homicide cases. It is likely as well that domestic homicides would be subject to a case management panel with a lead lawyer and either the deputy chief crown prosecutor or the chief crown prosecutor, so there is senior oversight.

The point that I really want to underscore is that because cases of domestic homicide inevitably have a lasting and dreadful impact on victims’ families, people deserve support and compassion, particularly as criminal proceedings can be upsetting and difficult to follow. Procedures are in place to ensure that is given. Where there is an allegation of murder, the police very often appoint a family liaison officer as a matter of course to assist with the process. I speak as someone who has prosecuted several murder cases. The role that liaison officers play is absolutely fantastic. Otherwise, the poor family turn up in court with no idea what an indictment is, wondering “What on earth is this examination-in-chief stuff? What is this plea and trial preparation hearing?”. The liaison officer role is invaluable, and needs to be supported by prosecutors speaking to family members, as they increasingly do.

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office)

Like the hon. Gentleman, I have been involved in a number of murder cases, and he is right that family liaison officers are worth their weight in gold. Does he think that there needs to be a more formalised link between the prosecutor and the family liaison officer—a referral pathway, or standard of practice that had to be met in each case? It could help us work towards having a less patchy approach if we had a formalised target.

Photo of Alex Chalk Alex Chalk Assistant Whip, The Parliamentary Under-Secretary of State for Justice

There are, in fact, formal arrangements in both spheres. Family liaison officers have to operate within certain guidance, and in my experience, by and large, they do so extremely well. At the risk of stating the obvious, it comes down to the calibre, kindness and empathy of the individual. In my experience, they are very good at their job and play an invaluable role.

As for the prosecution, as little as 20 years ago, there used to be almost a benign disdain for witnesses. Prosecutors simply did not engage with them. That does not happen now; they meet witnesses and family members before the trial begins. Very often, they will speak to them at the end of the day to explain what has happened. The relationship between prosecutors and family liaison officers tends to dovetail extremely effectively. I do not think that there is a need for further guidance. The key is to ensure that both parts of the criminal justice system—the police and the prosecution—do their job. In my experience, people are increasingly extremely conscientious in that regard. That is important, because people’s sense of whether they have got justice will often depend on the conversations they have at the end of the day, when the matter has been explained to them.

Let me speak a little about new clause 6, which concerns the consent of the Director of Public Prosecutions at the time of charge. I invite the Committee to consider that there are practical considerations here. If somebody is arrested and brought into custody, they can initially be there only for 24 hours. The superintendent can extend that to 36 hours, or up to a maximum of 72 hours if a magistrates court provides permission. During that time, the police will be gathering evidence, taking witness statements, looking at CCTV, getting forensic evidence and toxicology reports, and so on. They need to move fast and to be in a position to make those difficult charging decisions with the CPS.

Consultation will be difficult in these circumstances in any event. It would not be possible for the CPS to discuss details of evidence in this case, as that could prejudice criminal proceedings. There would be an unfortunate situation with the DPP—who, first, has not got the time, and secondly, would not be able to sit down with the family and say, “This is why we are making this charging decision,” because they would not be able to reveal the evidence. That does not mean that bereaved people do not deserve the support of the CPS; they do, but it has to be given in a way that is practical. I could say more, but have probably made my point.

I turn to new clause 10. That is another clause in the armoury of provisions intended to prevent defendants from arguing that victims consented to the act that led to their death. Again, hon. Members may feel that this was a powerfully presented argument, which is also contingent on the issue of rough sex. The argument is that defendants will not be making these submissions if it avails them naught to suggest that the victim consented. It would not really be in their interests to start making all these salacious, damaging and upsetting remarks; it would not advance their defence. I have two observations to make. First, new clause 10 is not limited to cases where the defendant seeks to show that the victim consented; consent is not mentioned in new clause 10. Secondly, unlike section 41 of the Youth Justice and Criminal Evidence Act 1999, which permits the court to control when evidence on previous sexual history can be introduced, this provision prohibits doing that absolutely. It does so whether or not the reason for adducing such evidence is connected with the issue of consent, and prohibits evidence as to sexual history, even where that might potentially be relevant.

New clauses 11 and 14 relate to reporting restrictions. New clause 11 makes provision for reporting restrictions, preventing the naming of the deceased victim. That is based on the sort of protection that has long been given to complainants in crimes of sexual violence. It is often referred to as “anonymity”, which is slightly misleading, as the complainant will be referred to by name in court. I have the greatest sympathy for the bereaved families of murder victims, where the reputation of the person they have lost is besmirched or traduced by the defendant. I have made the point already that, if we are able to do something in respect of the principal issue, the scope for that is reduced. However, we must also recognise that there are difficulties in defining the point at which the protection applies and how long it should last. Another potential weakness is that the victim may well have been identified before any question of imposing reporting restrictions arises. Therefore any restriction might in reality be presentational. If, for example, the name has emerged because someone said it in an interview, it may not have the desired impact. That is something we will consider.

New clause 14 treats living complainants in domestic abuse cases in the same way as complainants in sexual cases, applying automatic reporting restrictions from the time when the allegation is made. That is the point that the hon. Member for Hove spoke to. We need to pause for breath here a little. Automatic restrictions such as these are an exceptional interference with open justice. Sometimes, exceptional interferences are necessary. However, the hon. Gentleman mentioned that there are principles of open justice, and he was right to do so. They exist because, if we take this too far and the press are unable to report on what happens in court, that creates real concerns. We would soon find that there was a campaign for open justice, with people saying, “Why have we got secret courts? Why have we got secret justice?”

Also, we do not make these arguments entirely in a vacuum, because of course we exist within the European convention on human rights, which we are committed to remaining a member of, and being within the convention means that we sometimes have to balance rights. One of the rights that we have to balance is freedom of speech under article 10, but we also have to balance the right to privacy and a family life, under article 8. Those are not absolute rights; they have to be balanced. And that is something we have to weigh in the judgment as well.

Photo of Peter Kyle Peter Kyle Shadow Minister (Justice) 11:15 am, 16th June 2020

I have never heard a journalist wanting the rule that prevents reporting from naming victims of sexual violence overturned. Has the Minister?

Photo of Alex Chalk Alex Chalk Assistant Whip, The Parliamentary Under-Secretary of State for Justice

What I can say, from my experience in court, is that it is not unusual for the press to seek to overturn reporting restrictions where they are imposed at the discretion of the court, so although the hon. Gentleman may be right that in fact there is not a particular drumbeat in respect of sexual offences, I hope that the Committee will not be gulled into thinking that the press do not very often seek to overturn reporting restrictions that are imposed. The arguments that are made are, “Why should we be having secret justice?”, and so on. Those arguments are very often dispatched by the court; they are considered not to be valid, and then they are sometimes taken on appeal and so on. The only point that I am seeking to make is that we must be careful in this area and strike a balance, so that we do not find ourselves bringing the law into disrepute.

Photo of Christine Jardine Christine Jardine Liberal Democrat Spokesperson (Home Affairs), Liberal Democrat Spokesperson (Women and Equalities)

As a journalist and as someone who has taught law for journalists, I point out that although we might challenge discretionary interdicts and super-interdicts—I cannot remember what they are called in England—the principle of defending the anonymity of victims of sexual assault, sexual crimes, is never challenged in court. The only challenge is to discretionary non-identification where a public interest case can be made for that being overthrown. I find it difficult to believe that the press would actually want victims of domestic abuse named in the papers, unless there was some outlandish public interest.

Photo of Alex Chalk Alex Chalk Assistant Whip, The Parliamentary Under-Secretary of State for Justice

The hon. Lady is absolutely right that of course it is not open to a journalist to seek to displace the reporting restrictions that have been imposed by force of statute. I was seeking to make the point, which I do not think she disagrees with, that it is not uncommon for the press to suggest that a court, in imposing reporting restrictions in an individual case, has overreached itself, gone beyond the bounds, and misapplied the balance. Sometimes, by the way, those applications are upheld at first instance or on appeal.

There is a judgment to make, and we have to recognise that there is a particular public interest, when the allegation is of sexual violence, in taking the step of exceptional interference. That justification exists in relation to sexual offences. However, we have to take great care before extending it further, not least because—of course, domestic violence and domestic abuse are incredibly serious, for all the reasons that we have expressed—women, and it is usually women, can be victims of all sorts of other offences. Then it becomes a question of how far we go—where do we draw the line? That is something that requires careful thought.

I apologise to members of the Committee for taking so long to explain the Government’s position on the new clauses. As I have sought to explain, we fully understand the anguish and hurt felt by the family of Natalie Connolly and many others, and, as lawmakers, we will and should do what we can to minimise such anguish on the part of bereaved families in the future. For the reasons that I have set out, the Government cannot support a number of the new clauses, but as I have indicated before, we expect to set out the Government’s approach in respect of the rough sex issue in time for Report. In those circumstances, I respectfully invite the hon. Member for Birmingham, Yardley to withdraw the new clause.

Photo of Jess Phillips Jess Phillips Shadow Minister (Home Office)

I will withdraw the new clause. I am very pleased to hear that there is an intention to deal with the matter on Report, and I speak entirely for the hon. Member for Wyre Forest and my right hon. and learned Friend the Member for Camberwell and Peckham in that regard. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

The Chair adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at Two o’clock.