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Defences for victims of domestic abuse who commit an offence

Domestic Abuse Bill – in a Public Bill Committee at 4:15 pm on 17th June 2020.

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“(1) A person is not guilty of an offence if—

(a) the person is aged 18 or over when the person does the act which constitutes the offence;

(b) the person does that act because the person is compelled to do it;.

(c) the compulsion is attributable to their being a victim of domestic abuse; and

(d) a reasonable person in the same situation as the person and having the person’s relevant characteristics might do that act.

(2) A person may be compelled to do something by another person or by the person’s circumstances.

(3) Compulsion is attributable to domestic abuse only if—

(a) it is, or is part of, conduct which constitutes domestic abuse as defined in sections 1 and 2 of this Act, 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; or

(b) it is a direct consequence of a person being, or having been, a victim of such abuse.

(4) A person is not guilty of an offence if—

(a) the person is under the age of 18 when the person does the act which constitutes the offence;

(b) the person does that act as a direct consequence of the person being, or having been, a victim of domestic abuse as defined at subsection (3)(a) above; and

(c) a reasonable person in the same situation as the person and having the person’s relevant characteristics might do that act.

(5) For the purposes of this section ‘relevant characteristics’ means age, sex, any physical or mental illness or disability and any experience of domestic abuse.

(6) In this section references to an act include an omission.

(7) Subsections (1) and (4) do not apply to an offence listed in Schedule

(8) The Secretary of State may by regulations amend Schedule

(9) The Secretary of State must make arrangements for monitoring of the types of offence for which victims of domestic abuse are prosecuted and use this evidence to inform an annual review of the offences listed in Schedule

This new clause would provide a statutory defence for survivors of domestic abuse, in some circumstances, who commit an offence.

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 Peter Bone Peter Bone Conservative, Wellingborough

With this it will be convenient to discuss new schedule 1—Offences to which the defence for victims of domestic abuse who commit an offence does not apply—

“Common Law Offences

1 False imprisonment.

2 Kidnapping.

3 Manslaughter.

4 Murder.

5 Perverting the course of justice.

6 Piracy.

Offences against the Person Act 1861 (c. 100)

7 An offence under any of the following provisions of the Offences Against the Person Act 1861—

(a) section 4 (soliciting murder)

(b) section 16 (threats to kill)

(c) section 18 (wounding with intent to cause grievous bodily harm)

(d) section 20 (malicious wounding)

(e) section 21 (attempting to choke, suffocate or strangle in order to commit or assist in committing an indictable offence)

(f) section 22 (using drugs etc to commit or assist in the committing of an indictable offence)

(g) section 23 (maliciously administering poison etc so as to endanger life or inflict grievous bodily harm)

(h) section 27 (abandoning children)

(i) section 28 (causing bodily injury by explosives)

(j) section 29 (using explosives with intent to do grievous bodily harm)

(k) section 30 (placing explosives with intent to do bodily injury)

(l) section 31 (setting spring guns etc with intent to do grievous bodily harm)

(m) section 32 (endangering safety of railway passengers)

(n) section 35 (injuring persons by furious driving)

(o) section 37 (assaulting officer preserving wreck)

(p) section 38 (assault with intent to resist arrest).

Explosive Substances Act 1883 (c. 3)

8 An offence under any of the following provisions of the Explosive Substances Act 1883—

(a) section 2 (causing explosion likely to endanger life or property)

(b) section 3 (attempt to cause explosion, or making or keeping explosive with intent to endanger life or property)

(c) section 4 (making or possession of explosives under suspicious circumstances).

Infant Life (Preservation) Act 1929 (c. 34)

9 An offence under section 1 of the Infant Life (Preservation) Act 1929 (child destruction).

Children and Young Persons Act 1933 (c. 12)

10 An offence under section 1 of the Children and Young Persons Act 1933 (cruelty to children).

Public Order Act 1936 (1 Edw. 8 & 1 Geo. 6 c. 6)

11 An offence under section 2 of the Public Order Act 1936 (control etc of quasi-military organisation).

Infanticide Act 1938 (c. 36)

12 An offence under section 1 of the Infanticide Act 1938 (infanticide).

Firearms Act 1968 (c. 27)

13 An offence under any of the following provisions of the Firearms Act 1968—

(a) section 5 (possession of prohibited firearms)

(b) section 16 (possession of firearm with intent to endanger life)

(c) section 16A (possession of firearm with intent to cause fear of violence)

(d) section 17(1) (use of firearm to resist arrest)

(e) section 17(2) (possession of firearm at time of committing or being arrested for specified offence)

(f) section 18 (carrying firearm with criminal intent).

Theft Act 1968 (c. 60)

14 An offence under any of the following provisions of the Theft Act 1968—

(a) section 8 (robbery or assault with intent to rob)

(b) section 9 (burglary), where the offence is committed with intent to inflict grievous bodily harm on a person, or to do unlawful damage to a building or anything in it

(c) section 10 (aggravated burglary)

(d) section 12A (aggravated vehicle-taking), where the offence involves an accident which causes the death of any person

(e) section 21 (blackmail).

Criminal Damage Act 1971 (c. 48)

15 The following offences under the Criminal Damage Act 1971—

(a) an offence of arson under section 1

(b) an offence under section 1(2) (destroying or damaging property) other than an offence of arson.

Immigration Act 1971 (c. 77)

16 An offence under section 25 of the Immigration Act 1971 (assisting unlawful immigration to member state).

Customs and Excise Management Act 1979 (c. 2)

17 An offence under section 170 of the Customs and Excise Management Act 1979 (penalty for fraudulent evasion of duty etc) in relation to goods prohibited to be imported under section 42 of the Customs Consolidation Act 1876 (indecent or obscene articles).

Taking of Hostages Act 1982 (c. 28)

18 An offence under section 1 of the Taking of Hostages Act 1982 (hostage-taking).

Aviation Security Act 1982 (c. 36)

19 An offence under any of the following provisions of the Aviation Security Act 1982—

(a) section 1 (hijacking)

(b) section 2 (destroying, damaging or endangering safety of aircraft)

(c) section 3 (other acts endangering or likely to endanger safety of aircraft)

(d) section 4 (offences in relation to certain dangerous articles).

Mental Health Act 1983 (c. 20)

20 An offence under section 127 of the Mental Health Act 1983 (ill-treatment of patients).

Child Abduction Act 1984 (c. 37)

21 An offence under any of the following provisions of the Child Abduction Act 1984—

(a) section 1 (abduction of child by parent etc)

(b) section 2 (abduction of child by other persons).

Public Order Act 1986 (c. 64)

22 An offence under any of the following provisions of the Public Order Act 1986—

(a) section 1 (riot)

(b) section 2 (violent disorder).

Criminal Justice Act 1988 (c. 33)

23 An offence under section 134 of the Criminal Justice Act 1988 (torture).

Road Traffic Act 1988 (c. 52)

24 An offence under any of the following provisions of the Road Traffic Act 1988—

(a) section 1 (causing death by dangerous driving)

(b) section 3A (causing death by careless driving when under the influence of drink or drugs).

Aviation and Maritime Security Act 1990 (c. 31)

25 An offence under any of the following provisions of the Aviation and Maritime Security Act 1990—

(a) section 1 (endangering safety at aerodromes)

(b) section 9 (hijacking of ships)

(c) section 10 (seizing or exercising control of fixed platforms)

(d) section 11 (destroying fixed platforms or endangering their safety)

(e) section 12 (other acts endangering or likely to endanger safe navigation)

(f) section 13 (offences involving threats).

Channel Tunnel (Security) Order 1994 (S.I. 1994/570)

26 An offence under Part 2 of the Channel Tunnel (Security) Order 1994 (SI 1994/570) (offences relating to Channel Tunnel trains and the tunnel system).

Protection from Harassment Act 1997 (c. 40)

27 An offence under any of the following provisions of the Protection from Harassment Act 1997—

(a) section 4 (putting people in fear of violence)

(b) section 4A (stalking involving fear of violence or serious alarm or distress).

Crime and Disorder Act 1998 (c. 37)

28 An offence under any of the following provisions of the Crime and Disorder Act 1998—

(a) section 29 (racially or religiously aggravated assaults)

(b) section 31(1)(a) or (b) (racially or religiously aggravated offences under section 4 or 4A of the Public Order Act 1986).

Terrorism Act 2000 (c. 11)

29 An offence under any of the following provisions of the Terrorism Act 2000—

(a) section 54 (weapons training)

(b) section 56 (directing terrorist organisation)

(c) section 57 (possession of article for terrorist purposes)

(d) section 59 (inciting terrorism overseas).

International Criminal Court Act 2001 (c. 17)

30 An offence under any of the following provisions of the International Criminal Court Act 2001—

(a) section 51 (genocide, crimes against humanity and war crimes)

(b) section 52 (ancillary conduct).

Anti-terrorism, Crime and Security Act 2001 (c. 24)

31 An offence under any of the following provisions of the Anti-terrorism, Crime and Security Act 2001—

(a) section 47 (use of nuclear weapons)

(b) section 50 (assisting or inducing certain weapons-related acts overseas)

(c) section 113 (use of noxious substance or thing to cause harm or intimidate).

Female Genital Mutilation Act 2003 (c. 31)

32 An offence under any of the following provisions of the Female Genital Mutilation Act 2003—

(a) section 1 (female genital mutilation)

(b) section 2 (assisting a girl to mutilate her own genitalia)

(c) section 3 (assisting a non-UK person to mutilate overseas a girl’s genitalia).

Sexual Offences Act 2003 (c. 42)

33 An offence under any of the following provisions of the Sexual Offences Act 2003—

(a) section 1 (rape)

(b) section 2 (assault by penetration)

(c) section 3 (sexual assault)

(d) section 4 (causing person to engage in sexual activity without consent)

(e) section 5 (rape of child under 13)

(f) section 6 (assault of child under 13 by penetration)

(g) section 7 (sexual assault of child under 13)

(h) section 8 (causing or inciting child under 13 to engage in sexual activity)

(i) section 9 (sexual activity with a child)

(j) section 10 (causing or inciting a child to engage in sexual activity)

(k) section 13 (child sex offences committed by children or young persons)

(l) section 14 (arranging or facilitating commission of child sex offence)

(m) section 15 (meeting a child following sexual grooming)

(n) section 16 (abuse of position of trust: sexual activity with a child)

(o) section 17 (abuse of position of trust: causing or inciting a child to engage in sexual activity)

(p) section 18 (abuse of position of trust: sexual activity in presence of child)

(q) section 19 (abuse of position of trust: causing a child to watch a sexual act)

(r) section 25 (sexual activity with a child family member)

(s) section 26 (inciting a child family member to engage in sexual activity)

(t) section 30 (sexual activity with a person with a mental disorder impeding choice)

(u) section 31 (causing or inciting a person with a mental disorder impeding choice to engage in sexual activity)

(v) section 32 (engaging in sexual activity in the presence of a person with a mental disorder impeding choice)

(w) section 33 (causing a person with a mental disorder impeding choice to watch a sexual act)

(x) section 34 (inducement, threat or deception to procure sexual activity with a person with a mental disorder)

(y) section 35 (causing a person with a mental disorder to engage in or agree to engage in sexual activity by inducement, threat or deception)

(z) section 36 (engaging in sexual activity in the presence, procured by inducement, threat or deception, of a person with a mental disorder)

(aa) section 37 (causing a person with a mental disorder to watch a sexual act by inducement, threat or deception)

(ab) section 38 (care workers: sexual activity with a person with a mental disorder)

(ac) section 39 (care workers: causing or inciting sexual activity)

(ad) section 40 (care workers: sexual activity in the presence of a person with a mental disorder)

(ae) section 41 (care workers: causing a person with a mental disorder to watch a sexual act)

(af) section 47 (paying for sexual services of a child)

(ag) section 48 (causing or inciting child prostitution or pornography)

(ah) section 49 (controlling a child prostitute or a child involved in pornography)

(ai) section 50 (arranging or facilitating child prostitution or pornography)

(aj) section 61 (administering a substance with intent)

(ak) section 62 (committing offence with intent to commit sexual offence)

(al) section 63 (trespass with intent to commit sexual offence)

(am) section 64 (sex with an adult relative: penetration)

(an) section 65 (sex with an adult relative: consenting to penetration)

(ao) section 66 (exposure)

(ap) section 67 (voyeurism)

(aq) section 70 (sexual penetration of a corpse).

Domestic Violence, Crime and Victims Act 2004 (c. 28)

34 An offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing a child or vulnerable adult to die or suffer serious physical harm).

Terrorism Act 2006 (c. 11)

35 An offence under any of the following provisions of the Terrorism Act 2006—

(a) section 5 (preparation of terrorist acts)

(b) section 6 (training for terrorism)

(c) section 9 (making or possession of radioactive device or material)

(d) section 10 (use of radioactive device or material for terrorist purposes)

(e) section 11 (terrorist threats relating to radioactive devices etc).

Modern Slavery Act 2015

36 An offence under any of the following provisions of the Modern Slavery Act 2015—

(a) section 1 (slavery, servitude and forced or compulsory labour)

(b) section 2 (human trafficking).

Ancillary offences

37 (1) An offence of attempting or conspiring to commit an offence listed in this Schedule.

(2) An offence committed by aiding, abetting, counselling or procuring an offence listed in this Schedule.

(3) An offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting) where the offence (or one of the offences) which the person in question intends or believes would be committed is an offence listed in this Schedule.”

This Schedule is consequential on NC46.

Photo of Andrew Bowie Andrew Bowie Conservative, West Aberdeenshire and Kincardine

On a point of order, Mr Bone. I apologise to the hon. Member for Birmingham, Yardley. Perhaps you can instruct me, Mr Bone, on how best to place on the record my thanks to my right hon. Friend Mrs May, who has been in touch to express her gratitude to all Members and officials on the Committee for taking this Bill through. It is three years since she introduced it and she very much looks forward to seeing it on Report. Will you advise me as to how best to place her gratitude on the record?

Photo of Peter Bone Peter Bone Conservative, Wellingborough

I thank the hon. Gentleman, but that is clearly not a point of order. However, he has put it on the record.

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

I thought the hon. Gentleman was intervening on me before I had even spoken, which would have been a bold move. I did not know where we were going with that, but I echo the hon. Gentleman’s words. I do not think anyone would ever question the dedication of the right hon. Member for Maidenhead to domestic abuse services. I knew her in my former life. When she was the Home Secretary, she would regularly visit services that I ran, whether they were for victims of human trafficking, female offenders, victims of domestic abuse or victims of sexual violence. On more than one occasion towards the end of my career there, when I was a parliamentary candidate, I was sent home on the days that she would come. I am certain that we would not have fallen out, but I was glad to work from home on those days. I think it got to the point where I was the more difficult of the two of us, so I was sent home.

When the right hon. Lady returned to the Back Benches, I thought, “What a brilliant ally she might be to me on certain things,” and I was delighted that, at every opportunity during the Bill’s progression, she has spoken up, including on some of the more difficult things to say. She has talked about issues of domestic abuse within the police force itself. It is bold and courageous to do so, and we will continue to rely on her input.

When speaking to new clause 33, my hon. Friend the Member for Hove discussed some of the arguments related to new clause 46, so I will not reinvent the wheel. Everyone will also be pleased to hear that this is the last new clause for the Committee to debate. New clause 46 and new schedule 1 would introduce a statutory defence for survivors of domestic abuse that is closely modelled on section 45 of the Modern Slavery Act 2015, giving them the same legal protection as that given to victims of trafficking who are compelled to offend, with the same excluded offences.

Photo of Fay Jones Fay Jones Conservative, Brecon and Radnorshire

I want to ask for clarification. Hon. Members know that some of us are very new to this, so it is possibly my mistake. The new clause really does not make sense to me, because subsection (1) states:

“A person is not guilty of an offence if the person is aged 18 or over when the person does the act which constitutes the offence”.

That strikes me as a typo, because it should say “under”, not “over”.

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

I cannot speak for the typo, but the new clause is almost exactly, word for word, based on what the Modern Slavery Act says about modern slavery. It may well be a typo, although, having said that, I cannot absolutely vouch for it not being one. However, as somebody who has had some success with my ability to write, I do find that the law is sometimes difficult to read. It could be a mistake or it could be completely right, but I am sure that we can come back to the hon. Lady and let her know.

New clause 46 is directly modelled on section 45 of the Modern Slavery Act, giving the same legal protections as those granted to victims of trafficking who are compelled to offend. Victims of trafficking rightly have a statutory defence where they have been compelled to offend as part of, or as a direct result of, their exploitation, yet there is no equivalent defence for people whose offending results from their experiences of domestic abuse. New clause 46 would address this significant gap in the law and reflect improved public understanding of domestic abuse. It should be accompanied by a policy framework, including special measures for vulnerable defendants, drawing on policies that are in place to support section 45 of the Modern Slavery Act. That would encourage earlier disclosure of abuse and access to support, to help break the cycle of victimisation and offending.

Research by the Prison Reform Trust has shown that types of offending driven by domestic abuse vary widely. They include shoplifting to supplement an inadequate allowance from an abusive partner; being coerced into benefit fraud; holding a weapon or drugs for the abuser, as the Minister quite rightly pointed out earlier; and defending themselves against their abuser. The law needs modernising to take account of the context of domestic abuse that is so often behind women’s offending in particular. Although usually minor, such offences can still leave victims behind bars and often separated from their children. Nearly half of prison sentences imposed on women are for theft offences, predominantly shoplifting.

We now understand how coercive and controlling behaviour can erode a victim’s sense of self and undermine their agency. As we heard this morning, however, there remains an inconsistent approach by the police and prosecutors where an individual’s offending may be attributable to domestic abuse and a lack of effective defences. As my hon. Friend the Member for Hove argued earlier, having effective defences on the statute book would direct everyone concerned in the criminal justice process to consider the domestic abuse context at an early stage. It would deter inappropriate prosecutions and, crucially, encourage earlier disclosure of abuse. A specific statutory defence is already provided for victims of trafficking in section 45 of the Modern Slavery Act 2015 and the policy framework that goes with it. This requires proactive early case management and means that all involved become more adept at recognising circumstances that indicate there is no public interest in prosecuting an individual or where the statutory defence should apply. It does not work in all cases—there are victims of human trafficking who end up behind bars—but I would like to think that it has heightened the awareness of people having to deal with them. Magistrates, judges and lawyers increasingly understand how exploitation in this context can lead to offending and are taking this into account to ensure that victims are not further punished.

The question asked earlier of Minister Chalk—or it might have been the new Minister Chalk—was whether this stops that process getting to the court room. In cases of modern slavery, the answer is yes. For example, if you were to find somebody in a cannabis farm or running drugs, the process stops before that point; is not like it gets to court. If somebody was sent shoplifting because of human trafficking, no one says, “This is going all the way to court”. The charges are simply not made. That is my experience. The same legislation and policy frameworks should be in place to protect defendants whose offending is attributable to their experience of domestic abuse.

I will now explain why the existing common law defence of duress does not work for individuals who are compelled to offend due to their experience of domestic abuse and how new clause 46 and schedule 1—sorry, new schedule 1; we are not going back to schedule 1, having come this far—would help fix the problem. Duress is a common law defence that can be applied to offences other than murder where the defendant was acting under the threat of imminent death or serious injury, and where there was no alternative course of action for a reasonable person with relevant characteristics. However, the legal test for duress is rarely used in the context of domestic abuse for three main reasons: the complexities of domestic abuse are ignored; as the emphasis is on death or threat of serious injury, the defence does not recognise psychological, sexual or financial abuse; and for the defence of duress to suceed, the threat of physical harm must be imminent. That fails to recognise the nature of domestic abuse behaviour, including coercive control, as it is typically entrenched, unpredictable and random. To a woman whose self-esteem has been demolished by past violence, the fear of violence may be ever-present and overpowering.

In a modern slavery case, someone would say, “You’ve got to go and do this.” Unfortunately, in the cases I handled, it was, “You’ve got to sleep with 30 men today.” Nobody is suggesting that those women should be criminalised, thank goodness. However, in the cases of domestic abuse that I have seen where a pattern of offending behaviour occurs—for almost all the women I saw in my female offenders service, there had been a pattern of domestic abuse—there is the suggestion that things had to be got: “Why haven’t I got this?” or “You’ve spent all your money and you haven’t bought this.” A woman would be faced with a situation where she had not got the things from the shop that he wanted, or did not have the money to buy something for the kids. That would often, I am afraid to say, lead to acquisitive crime offending.

It is also terrible when—I hope this has improved; I need to check—women are charged and sent to prison because their kids have not gone to school as part of their domestic abuse, as the children have attachment issues because of domestic abuse. I suppose they are free and easy at the moment because nobody is at school. On a number of occasions, I saw women criminalised because their children would not go to school, and domestic abuse was not taken into account.

The duress defence applies where a reasonable person with relevant characteristics has no alternative but to do what he or she did. For that to succeed, those experiencing abuse must show they were suffering from battered woman syndrome—it has been a long time since we called it that—or learned helplessness. Those are outdated concepts that pathologise women rather than offering an effective defence suitable for the circumstances. They require the production of medical evidence, which is not practicable in many cases involving low-level offending that are tried in a magistrates court. It would be complicated to try to get that. My favourite ever case of going to the GP about domestic violence—this shows why we may need to improve our health response to it—was when a woman I was working with tried to tell her GP that her husband was strangling her and she could not breathe. She left his office with inhalers.

I can illustrate the deficiencies that I am concerned about by recounting the case of YS. YS was charged with driving while disqualified, driving with excess alcohol, driving without insurance and dangerous driving. An officer noticed a vehicle with its brake lights permanently illuminated, swerving from side to side. He activated the siren, indicating for the vehicle to stop. It did not stop, and the chase continued for five minutes. In the driving seat was a woman, YS. She explained that she had been dragged from her home, partially dressed, by her abusive partner, and forced to drive. He had threatened to kill her if she did not drive on. The partner was screaming at her throughout, punching her in the ribs and trying to grab the steering wheel. There was a recorded history of domestic abuse in the relationship. The police having stopped the vehicle, YS was prosecuted. Despite the duress, and despite the fact that YS was viewed as credible, she was convicted, and the conviction was upheld on appeal in the High Court.

New clause 46 is intended to overcome the deficiencies in the common law defence of duress for survivors such as YS, and to provide a straightforward defence suitable for the actual circumstances. That does not mean that if that defence had been available to YS, she would not have been found guilty. It would not limit normal due process. New clause 46 and new schedule 1 would enable the courts to consider whether victim-survivors were compelled to offend as part of, or as a direct consequence of, their abuse.

The provisions would fill a significant gap in the law and strengthen the legal framework for those whose lives have been blighted by abusive relationships. They have a precedent in section 45 of the Modern Slavery Act 2015 and would do no more than provide protection equivalent to what is rightly afforded to victims of trafficking, with the same excluded offences. There should be no delay in introducing such important legal protection, and helping to end the cycle of victimisation and offending.

Photo of Victoria Atkins Victoria Atkins The Parliamentary Under-Secretary of State for the Home Department, Minister for Women 4:30 pm, 17th June 2020

May I take a moment to thank my hon. Friend the Member for West Aberdeenshire and Kincardine for his non-point of order? It is right that my right hon. Friend Mrs May be mentioned in Committee. Ministers are always encouraged by the Whips to engage with Back Benchers. It is an important part of the job to listen, consider views and try, where possible, to accommodate them. At the best of times that can be, depending on the Back Bencher, an interesting exercise, but Members can imagine what it is like to try to do Back-Bench engagement with a former Prime Minister who introduced the Bill that is the subject of that engagement: it is on a whole new level. I am delighted that she was mentioned again in the scrutiny of the Bill.

I am grateful to the hon. Member for Birmingham, Yardley for raising the point covered by the new clause. As she said, it stems from a campaign by the Prison Reform Trust. I note that my hon. Friend the Under- Secretary of State for Justice met trust representatives, the designate domestic abuse commissioner and the Victims Commissioner recently, to discuss the issue, among others. It has very much had his attention, as it now has mine.

We of course recognise the harm that is suffered by victims of domestic abuse. That is why the aim of the Bill is specifically to target it and raise awareness and understanding of its impact. It seeks to raise the profile of domestic abuse in all its forms, particularly given its pernicious nature, and to improve the effectiveness of the justice system in providing protection for victims and bringing perpetrators to justice. It also seeks to strengthen the support for victims and survivors provided by statutory agencies. The definition should help further in clarifying the wide-ranging nature of domestic abuse for all those involved in the criminal justice system, at every level.

There are several defences that are potentially available under the law. The hon. Member for Birmingham, Yardley raised some cases in her speech. I have to deal with the fact that we have these defences. The hon. Lady herself acknowledged that there will be occasions where those involved in the system do not apply the law in the manner that Parliament intended. None the less, we still have to respect the independence of the judiciary, the Crown Prosecution Service and the police in ensuring that our criminal justice system works. She mentioned the defences of duress and self-defence, which are full defences. In homicide cases we have the partial defences of loss of control and diminished responsibility.

I recognise that legal representatives and the CPS should be made aware, as soon as possible, of domestic abuse histories and their impact, in the course of making charging decisions and when considering guilty pleas. That needs to be balanced alongside the recognition of the harm done by the perpetrator of a crime and the impact on the victim, in order to ensure, wherever possible, that people do not revert to criminal behaviour. That is reflected in the law, which continues to evolve and aims to strike the right balance between these factors.

The hon. Member for Birmingham, Yardley relies on the model set out in section 45 of the Modern Slavery Act 2015. We have concerns that that model would create anomalies with other offences. For example, there is a range of offences, mainly serious sexual or violent offences, to which the section 45 defence does not apply, in order to avoid creating a legal loophole for serious criminals to escape justice. The offences that are excluded are set out in schedule 4 to the 2015 Act, which schedule 1 seeks to replicate. Identifying the trigger point resulting in the behaviour that caused the offence remains problematic. If that defence is to be raised, the issue would become at what point in time and in relation to which type of level of domestic abuse the defence became available. Establishing such a threshold would be incredibly difficult. To clarify the circumstances in which the defence would be permissible would likely reduce the applicability or effect of the new defence to the parameters already set out in existing defences. Additionally, a full defence for a defendant subject to domestic abuse would create anomalies with defendants subject to other forms of harm, such as sexual harassment from strangers. Those are anomalies I am sure that none of us would want to see.

Let me deal with the point about the Modern Slavery Act. In earlier debates I talked about the evolving methodology of gang leaders and their efforts to ensnare young people into their gangs. We have in mind that we hear from law enforcement partners that the statutory defence for victims of modern slavery is being misused, primarily by the gang leaders, to persuade the young people they are manipulating and exploiting that it does not matter if they are caught, because they will get off anyway. That will not be the case, particularly for the sorts of serious offences that are not set out in the schedule. This comes back to the point about the ability of perpetrators and those who would exploit and manipulate other human beings, and their never-ending capacity to find new ways to do so—we are concerned about that aspect as well. The hon. Member for Birmingham, Yardley mentioned a female victim of a gang being instructed to have sex with members of that gang—sadly, that is a factor that we know happens in gangs. Gang leaders find many ways to exploit vulnerable people in all walks of life, but particularly in those very hard-edged crimes. We are working with criminal justice partners to assess how the modern slavery defence is used in practice and the repercussions of that.

Existing full and partial defences cover circumstances in which a defendant is also the victim of domestic abuse. Indeed, full defences, including duress and self-defence, are defences to any crime, which, if pleaded successfully, result in acquittal. I refer to the debate that I had with the hon. Member for Hove about the decision-making process that the CPS must go through before the decision to charge is taken. At every stage of the criminal justice process, there are checks and balances. For example, at half-time, when the prosecution has closed its case, if the prosecution has failed to establish a case such that a judge feels confident to leave it to the jury, the judge will stop that case there and then. The jury will not be asked to deliver a verdict because the judge has ruled that, at the half-time submission, the evidence is insufficient and the prosecution has not done their job.

We have those checks and balances all the way through to the closing speeches. When I used to prosecute cases, I would always say to the jury, “If you find yourself using the words, ‘Possibly,’ ‘Likely,’ or ‘Probably,’ I have not done my job proving the case against the defendant beyond reasonable doubt.” Those are the sorts of checks and balances that have been worked out over time to ensure that the guilty are convicted and the innocent are acquitted.

Partial defences, such as diminished responsibility and loss of control, reduce a charge for murder to manslaughter. Very recently, the incredibly moving case of Sally Challen not only demonstrated that partial defences can be employed, but showed the improvement in our understanding over a matter of years. Ms Challen was convicted in 2010 and a matter of years later, we have a better understanding of domestic abuse, and her appeal was successful.

Those checks and balances are important to ensure that, wherever possible, victims make their background and circumstances known. I very much hope that the Bill’s success in raising awareness about the sorts of things that the Committee has debated in such depth and degree will ensure that the justice system is as effective as it can be in providing victims and survivors with as much protection as possible—I am sure that I will work on that with colleagues from across the House. On that note, I will conclude.

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

It seems almost unfair on the Minister that I get the last word on a Bill that she introduced, but that is the system. I welcome what she said, and I will take up that issue with the Under-Secretary of State for Justice, the hon. Member for Cheltenham, and with the Prison Reform Trust.

I am very interested in—but unsurprised about—the idea that, in the Modern Slavery Bill, there is potential to say, “You are going to get away with it,” without recognising that what we are talking about here is mostly minor crimes—nothing that causes harm to others, no sexual abuse and no domestic abuse. However, it is very much the case that in patterns of abuse, people end up abusing other people. That is a complex area and we want fairness both for those who are accused and for those who are suffering. I will withdraw the new clause, and everybody can finally be done with the millions of amendments. I beg to ask leave to withdraw the motion.

Clause, by leave, withdrawn.

Question proposed, That the Chair do report the Bill, as amended, to the House.

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

On a point of order, this is the moment at which it is customary to say a few words to mark the end of our deliberations in Committee and to reflect on the intensive scrutiny that the Bill has received, but also to thank certain people for their help in assisting the Committee with our scrutiny. These thanks come very much from my hon. Friend the Member for Cheltenham as well as from me. He is busy elsewhere in the Palace, but he is very keen to thank people as well.

First, I thank you, Mr Bone, and Ms Buck. You have both managed to keep us in order at an appropriate distance, which is a skill. I thank my hon. Friend the Member for Cheltenham; it has been a genuine pleasure to work on this stage of the Bill with him. He has shown just what an expert he is as a Justice Minister, having been in the job for only a very short period. He is a real joy to work with and has really made his mark already.

They are not often thanked, but I also thank my Government Whip, my hon. Friend the Member for Castle Point, who has been excellent in ensuring that, on most days—every day, in fact—we finish on time. She has also been very generous with the hand sanitiser. I genuinely thank the Opposition Front Benchers. The hon. Member for Birmingham, Yardley has brought all her experience outside this place into the Committee room, and I sincerely thank her for that. I thank the hon. Member for Hove for his very pertinent but charmingly articulated points, which can often be deadlier than shouting and creating a fuss. I also thank the hon. Member for Blaydon, the Opposition Whip—our Whips play an incredibly important part in ensuring that the Committee works properly and works to a timetable.

Of course, I thank the Clerks, who have had to, with other colleagues in the House, really test what the Palace—and this room—can accommodate in these very difficult circumstances. Thanks, of course, go to Hansard. It seems like a lifetime ago that we were in Portcullis House and being instructed that Members sat at the back of the Public Gallery would have to shout for Hansard—what extraordinary times, but we managed it. I would normally thank the Doorkeepers; we have not had any Doorkeepers, but I thank them anyway.

I thank the officials and lawyers from the Home Office, the Ministry of Justice, the Ministry of Housing, Communities and Local Government, the Department of Work and Pensions, the Department for Education, the Department for Business, Energy and Industrial Strategy and the Department for Health and Social Care—seven Government Departments have been involved in the Bill thus far. Special mention must go to a certain Charles Goldie, the Bill manager. This is, I believe, the 20th Bill—[Interruption]—the 21st Bill that Charles has manoeuvred through Parliament in expert fashion. To put that in context, last night, when we were dealing with one of today’s new clauses—the reasonable force clause—I discovered that the 2008 Act on which the hon. Member for Hove was relying was managed by a certain Charles Goldie.

I do not want anyone to feel left out, so I must thank Kate in my private office, who has been doing amazing work alongside Robert, who is the MOJ private secretary. They have really tried to get around the awful fact that we cannot have box notes, so Kate has been tapping away furiously. I thank her very much for everything that she does.

I thank the other members of the Committee for what has been really interesting, thoughtful and thought-provoking scrutiny. I hope that they feel that they have both contributed to and gained from that. I look forward to their contributions at the next stage.

Finally, I thank all the witnesses who contributed, both in person and in written form. Particular thank go to the organisations that work on the frontline with domestic abuse victims and survivors, and to the victims, who were very brave and came to give live evidence before the Committee to tell us their lived experiences. Thanks to them all—that is why we are trying to pass this piece of legislation.

Photo of Peter Bone Peter Bone Conservative, Wellingborough

Thank you, Minister, for that totally bogus point of order. It was one of the longest points of order that I have ever had, but perhaps one of the best.

Question put and agreed to.

Bill, as amended, accordingly to be reported.

Committee rose.

Written evidence reported to the House

DAB83 The AIRE Centre (Advice on Individual Rights in Europe)

DAB84 Victim Support

DAB85 London Victims’ Commissioner

DAB86 Fulfilling Lives South East Partnership

DAB87 Latin American Women’s Aid and Dr Charlotte Proudman

DAB88 RISE

DAB89 Welsh Women’s Aid

DAB90 Southall Black Sisters—Further submission

DAB91 Dr Craig A. Harper and Dr Dean Fido, lecturers in forensic psychology at UK Universities (University of Derby; Nottingham Trent University)

DAB92 Brian Maloney

DAB94 Society for the Protection of Unborn Children

DAB95 Step Up Migrant Women Coalition—Further submission

DAB96 The Disabilities Trust