Reasonable force in domestic abuse cases

Domestic Abuse Bill – in a Public Bill Committee at 2:45 pm on 17th June 2020.

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‘(1) Section 76 of the Criminal Justice and Immigration Act 2008 is amended as follows.

(2) In subsection 76(5A) after “In a householder case” insert “or a domestic abuse case”.

(3) In subsection 76(6) after “In a case other than a householder case” insert “or a domestic abuse case”.

(4) After subsection 76(8F) insert—

“(8G) For the purposes of this section “a domestic abuse case” is a case where—

(a) the defence concerned is the common law defence of self-defence;

(b) D is, or has been, a victim of domestic abuse;

(c) the force concerned is force used by D against the person who has perpetrated the abusive behaviour referred to at subsection (8G)(b);

(d) subsection (8G)(b) will only be established if the behaviour concerned is, or is part of, conduct which constitutes domestic abuse as defined in sections 1 and 2 of the Domestic Abuse Act 2020, including but not limited to conduct which constitutes the offence of controlling or coercive behaviour in an intimate or family relationship as defined in section 76 of the Serious Crime Act 2015.”

(5) In subsection 76(9) after “This section, except so far as making different provision for householder cases” insert “and domestic abuse cases”.’ —

This new clause seeks to clarify the degree of force which is reasonable under the common law of self-defence where the defendant is a survivor of domestic abuse.

Brought up, and read the First time.

Photo of Peter Kyle Peter Kyle Shadow Minister (Justice)

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

The new clause seeks to provide domestic abuse survivors the same legal protection that householders have in cases of self-defence. Householders have a legal protection when they act in self-defence against an intruder, but no such protection is available to survivors acting in self-defence against their abuser. At its base, just think what that means: we are able in law to defend ourselves, to a defined threshold, against people who enter our homes and cause us harm, but we are unable to have the same defence against people who already live in the home and seek to cause the same harm. The new clause seeks to rectify that imbalance.

Common-law defences are outdated and ill fitting in the context of domestic abuse, leaving survivors with no effective defence. The Bill presents an opportunity to modernise the law by ensuring that the available legal defences reflect the improved public understanding of domestic abuse. This issue gained prominence with the case of Sally Challen last year, who had her murder charge for the hammer attack she inflicted on her husband downgraded to manslaughter in recognition of the effect of decades of coercive control that she had endured. That judgment reflects our new understanding of how domestic abuse can effect survivors and lead to offending behaviour, so it is only right that the Domestic Abuse Bill recognises this.

Evidence from the Prison Reform Trust shows that the common-law defence of self-defence is difficult to establish in cases of violent resistance by a survivor of domestic abuse against their abusive partner or former partner, as a jury may well conclude that the response was disproportionate without taking into account the long history of abuse. The self-defence proposal would make it easier for victims and survivors to establish that they were acting in self-defence, providing them with an equivalent protection to those using force against an intruder into their home. This is a really important distinction: all we are asking for is the same threshold to be allowed against people perpetrating violence from within the home as that allowed against people perpetrating violence who enter the home.

The definition is also now successfully established in statute. Section 76 of the Criminal Justice and Immigration Act 2008 is the basis for the new clause. Subsection (5A) allows householders to use disproportionate force when defending themselves against intruders into the home. It provides that, where the case involves a householder,

“the degree of force used by” the householder

“is not to be regarded as having been reasonable in the circumstances as” the householder

“believed them to be if it was grossly disproportionate”.

[Interruption.] I believe I am being heckled by Siri—I think I might have either turned someone’s lights on or off or ordered their shopping. A householder will therefore be able to use force that is disproportionate, but not grossly disproportionate. A CPS guideline states:

“The provision does not give householders free rein to use disproportionate force in every case they are confronted by an intruder. The new provision must be read in conjunction with the other elements of section 76 of the 2008 Act. The level of force used must still be reasonable in the circumstances as the householder believed them to be (section 76(3)).”

In deciding whether the force might be regarded as disproportionate or grossly disproportionate, the guideline states that the court

“will need to consider the individual facts of each case, including the personal circumstances of the householder and the threat (real or perceived) posed by the offender.”

The new clause would add the same provision and that same test of proportionality of force to cases of domestic abuse.

The Government have gone to great lengths to consider the different forms that domestic abuse can take, but there is not the same recognition of the criminal acts that can result from that abuse. We will go on to discuss the need for statutory defence further, but the new clause would go some way to addressing a difficulty survivors can have in court currently in self-defence cases.

The current Secretary of State was instrumental in providing the increased protection for householders when she was a Back Bencher. The coalition Government put forward their self-defence amendment for householders with the following comments by Lord McNally:

“All we are saying is that if householders act in fear for their safety or the safety of others and in the heat of the moment use force which is reasonable in the circumstances but seems disproportionate when viewed in the cold light of day, they should not be treated as criminals. Force which was completely over the top—grossly disproportionate, in other words— will still not be permitted.”—[Official Report, House of Lords, 10 December 2012; Vol. 741, c. 881.]

The new clause would see the Government apply the same sympathy and understanding to domestic abuse survivors that that Act provides in those situations.

Photo of Victoria Atkins Victoria Atkins The Parliamentary Under-Secretary of State for the Home Department

I am very pleased to reply in this debate. I understand that the new clause has been put forward by the Prison Reform Trust, and the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham, had the opportunity to speak in detail about this clause and other matters with representatives from the Prison Reform Trust, the designate domestic abuse commissioner, the Victims Commissioner and others a couple of weeks ago, so this has had his personal attention, as well as mine now.

The new clause aims to give a victim of domestic abuse the same level of protection as those acting in response to an intruder in their home. It has been suggested that that would address a current gap in the law and improve recognition of the links between victimisation and offending. It would, in effect, extend the provisions of section three of the Criminal Law Act 1967 so that a victim could be judged on the facts as he or she believed them to be.

We do, of course, recognise the harm suffered by victims of domestic abuse, and indeed there are several defences potentially available in law to those who commit offences in circumstances connected with their involvement in an abusive relationship. That includes the full defence of self-defence. In addition, the definition of domestic abuse in the Bill should assist with clarifying the wide-ranging and pernicious nature of domestic abuse and alerting all those involved in the criminal justice system to it. It does not seem to us that there is a gap in the law, nor does it seem to us that the situation of a householder reacting, perhaps instinctively, to an intruder in their home is directly comparable to the situation of a person who has been the victim of a pattern of violent and abusive behaviour, including behaviour that would constitute an offence under section 76 of the Serious Crime Act 2015.

The section 76 provisions in the 2008 Act largely cover a very specific circumstance where an intruder, who will in most cases be unknown to the defendant, puts the householder in a position where they are reacting on instinct or in circumstances that subject them to intense stress. By comparison, in domestic abuse cases the response may well not be sudden and instinctive, but one that follows years of physical and/or emotional and mental abuse, where the current law on self-defence and loss of control will allow that to be taken into account. Accordingly, it remains appropriate that the law on self-defence or loss of control be applied, rather than extend this provision to a wider set of circumstances.

The reality is that any defence counsel worth their salt will set out the journey of the domestic abuse, to the moment where the victim hit back or reacted in a way that has caught the attention of the police. Indeed, this will be flushed out in pre-charge interviews and in defence statements. There are various stages in the criminal justice path where the victim will have the ability to put their defence forward.

Photo of Peter Kyle Peter Kyle Shadow Minister (Justice) 3:00 pm, 17th June 2020

This may well be probing the bounds of my knowledge of legal expertise, but am I right in saying that, should the protection be defined in law, the Crown Prosecution Service, prosecutors and law enforcement agencies would take that into account before getting to court? Putting this on the face of the Bill could well save survivors of abuse from the process of going to court in the first place.

Photo of Victoria Atkins Victoria Atkins The Parliamentary Under-Secretary of State for the Home Department

It is in law. It is good, settled law. The law of self-defence is very much in law. We, in this place, understandably concentrate on statute law, but case law and common law have power in influencing the criminal courts, alongside statutes.

As for the CPS taking account of it, it is obliged to apply the code for Crown prosecutors when considering whether to charge. It is a two-stage process. First, there is an evidential test of whether there is a reasonable likelihood of conviction and, secondly, there is a public interest test. Any prosecutor looking at that test properly who has been alerted to the defence of self-defence, either by way of interview, from conversations with defence solicitors or from police officers at the scene of the crime, should be aware of that. They are obliged to take those factors into consideration when making the decision about whether the evidential and the public interest tests are met. I hope that answers the hon. Gentleman’s concern.

We understand that it is said that there are difficulties with establishing the common law defence of self-defence in cases of reactive violence by a survivor of domestic abuse against their abusive partner or former partner. We understand the rationale of the new clause as being that a jury may well conclude that the response was disproportionate, without taking account of the long history of abuse. The joy of the jury system, as we have already discussed, is that each case is tried on the facts by 12 members of the public, who sit on a jury. I would be loth to try to replace their decision-making process and their responsibilities in statute.

We understand the concerns, but we believe that the existing defence is well settled in law and can help victims in the situations that the hon. Gentleman has described, so I invite him to withdraw this clause.

Photo of Peter Kyle Peter Kyle Shadow Minister (Justice)

I will withdraw the motion because I believe that other people will want to interrogate this matter in greater detail at other stages of the Bill. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.