Thursday 11th June 2020
(4 years, 5 months ago)
Public Bill CommitteesDomestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Amendment Paper: Public Bill Committee Amendments as at 11 June 2020 - (11 Jun 2020)
Julie Marson
The hon. Gentleman makes a really important point. Long before I ever see a victim in court, there has been a huge process to get there and to provide the right support. Independent domestic violence advisers and different support mechanisms are in place; there are supporting people who come in and sit with the victim in court, but it is a hugely traumatic experience and support is needed throughout that process.
I would add a point about a common theme among perpetrators. When, in normal criminal cases, shoplifters or burglars or other violent offenders are convicted and sent to prison, there is a shrug of the shoulders—it is a part of their life; a general hazard of the criminality that they are involved in. When I have had—I will use the phrase—the pleasure to convict a perpetrator and send them to prison, it is noticeable that all the power has all of a sudden been stripped away. Their indignance and fury is palpable; you can sense it and see it. That is what makes it a different crime and a different experience, and that is why special measures are important. I speak to that experience.
The Parliamentary Under-Secretary of State for the Home Department (Victoria Atkins)
Will my hon. Friend indulge me for a moment? I take the point that the hon. Member for Hove made about the geography and layout of court buildings. Some we cannot change because they are very old. Has my hon. Friend seen the measures that clever judges can introduce to control when defendants are permitted to turn up according to the conditions of bail? For example, the defendant is not permitted to arrive at court until 20 minutes before the court case starts, so that the victim has time to get into the building and into the witness room, or wherever she will be based, and there is no risk of crossover. Does my hon. Friend agree that little tweaks such as that can make a difference?
Julie Marson
Absolutely; I completely agree. We cannot legislate for everything you can do in a court—every courtroom is set out differently. I have seen a lady with two teenage daughters, with the husband, and some really clever dynamics were needed to keep everyone separate, including in the toilets. In my experience, such measures have been very positive. There have been specialist domestic violence courts. Everyone is keenly aware of what is needed and is trying to think ahead for the kinds of measures that can make justice effective and make sure that justice is done. Such measures are all part of that.
The Parliamentary Under-Secretary of State for Justice (Alex Chalk)
I am delighted to see you in the Chair once again, Ms Buck. I thank my hon. Friend the Member for Hertford and Stortford for her excellent contribution. It speaks to the strength of the Committee that its members have real-world experience and can apply it to the important matters that we are here to discuss.
Before turning to the amendment and new clause, it is worth taking stock of where we are in terms of the court process and the framework in which the amendment and new clause sit. Over the last 10 years or so—probably a bit longer—the environment for victims and witnesses has been completely transformed. It was not so long ago that a complainant in a case of serious violence or a serious sexual allegation had to turn up at court and eyeball the defendant. It required an extraordinary effort of will, and a lot of people just thought, “This isn’t worth the candle.”
Legislation was introduced that provided the opportunity for screens and giving evidence via live link. At the time, that was considered utterly revolutionary. People were clutching their pearls, saying, “That’s it; justice is dead in our country; there is no opportunity for people to get a fair trial” and so on. The culture has changed. Now, at plea and trial preparation hearings such orders are routinely made and, lo and behold, juries—indeed, benches of magistrates as well—seem to find it perfectly straightforward to make a judgment in the interests of justice on the facts in front of them.
Setting that context helps to bring us up to the situation at the moment. Let us imagine some facts for a moment. The allegation is one of sexual assault on the London Underground. At that early hearing, before the Crown court, long before the trial has even been scheduled, the judge will ask the prosecutor, “Are there any applications for a special measures direction?” The prosecutor will stand up and say, “Yes, there is a complainant in this case and it is an allegation of a sexual nature, so I will be inviting the court to make a special measures direction in the normal way.” That is precisely what will happen, because it will be automatic.
I pause to note one further point. If the complainant says, “Forget this. I don’t want a screen, and I don’t want to give evidence on a live link; I want to be there in the well of the court, because that is how I feel I will get justice”, that will be accommodated as well.
Jess Phillips
The Minister says that the report will be published in the coming weeks. Does he expect that we will see it prior to Report stage of the Bill, or potentially prior to Committee stage in the Lords, as he has leaned on for one particular review? I ask only because I am seeking to understand what will be given to me as I consider whether to push new clause 45 to a Division.
Alex Chalk
I invite the hon. Lady to listen to the end of my remarks. If I can put it in these terms, the words I will use at the end are carefully phrased. I invite her to listen to those and then decide. A huge amount of work has gone into this panel, and getting to a place where we are ready to publish is the stuff of enormous effort. We are moving as quickly as we can, and it will be published as quickly as possible.
On the civil courts, there are no specific provisions in the civil procedure rules that deal with vulnerable parties or witnesses. However, judges have an inherent power, where the court is alerted to vulnerability, to make a number of directions or take steps to facilitate the progression or defending of a claim or the giving of evidence by a vulnerable party.
Liz Saville Roberts
To summarise considerably, I am sure that the Minister is aware that the Civil Justice Council returned earlier this year with the civil procedure rule committee. One of its recommendations was a new practice direction to address vulnerability. I wonder whether he could consider that.
Alex Chalk
The hon. Lady must have a copy of my speech, because I will come to that point in just a moment.
The directions that a civil court can make include, but are not limited to, giving evidence via video link, by deposition, by the use of other technology or through an intermediary or interpreter. On the hon. Lady’s point, following the April 2018 publication of the interim report and recommendations of the independent inquiry into child sexual abuse, the Ministry of Justice commissioned the Civil Justice Council—an advisory body responsible for overseeing and co-ordinating modernisation of the civil justice system—to consider the issues raised by these recommendations, and to compile a report that was not to be restricted only to victims and survivors of child sexual abuse.
The CJC published its report, “Vulnerable witnesses and parties within civil proceedings: current position and recommendations for change”, in February 2020. It made a number of recommendations, as the hon. Lady rightly points out. On special measures, the CJC report concluded that, in the civil jurisdiction, the issue is one of awareness and training, rather than lack of legal powers or framework. This goes back to my point on the role of this place in promoting awareness while recognising that discretion should be available to the court. That was the CJC’s conclusion. Its suggestion was that special measures were best left to the flexibility of court rules. The Government are considering how the recommendations in the independent report should be taken forward.
What is evident from the evidence received by the family panel and the Civil Justice Council is that the current position is unsatisfactory. The question is how best to improve the situation and ensure that vulnerable witnesses in the family and civil courts receive assistance to give their best evidence, in a way analogous to what the Bill already provides for in the criminal courts. We have the report from the Civil Justice Council to guide us but do not yet have the report of the family panel. However, I hope and expect that we will have it shortly, and it is right that we should consider the panel’s findings before legislating.
I am sympathetic to the intention behind these proposals. If the hon. Member for Edinburgh West would agree to withdraw her amendment I can give her and the shadow Minister an assurance that, between now and Report, we will carefully consider both proposals, and how best to proceed. If they are not satisfied with the conclusions the Government reach, they are of course perfectly entitled to bring amendments back on Report.
Christine Jardine
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 58 ordered to stand part of the Bill.
Clause 59
Prohibition of cross-examination in person in family proceedings
Amendment made: 37, in clause 59, page 39, line 32, at end insert—
“(aa) section 80 of the Sentencing Code;” —(Alex Chalk.)
See the explanatory statement for amendment 31.
Question proposed, That the clause, as amended, stand part of the Bill.
Alex Chalk
Let me say a little about clause 59. In fact, the right hon. Member for Dwyfor Meirionnydd was starting to talk about it, so I will set out some context. The clause contains provisions to prevent unrepresented perpetrators of abuse from cross-examining their victims in person in family proceedings. It also makes provision to give family courts the power to appoint a qualified legal representative to undertake the cross-examination instead, where necessary.
The Joint Committee on the Draft Domestic Abuse Bill, which undertook pre-legislative scrutiny of the draft Bill, recommended that the automatic prohibition of cross-examination be extended so that it would apply when the victim could provide evidence of abuse, as in the legal aid regime. We have accepted the recommendation in full, and the clause now gives full effect to it.
Some of the most vulnerable members of society come before the family courts, and we are determined to offer them every protection and to ensure that every vulnerable victim or witness coming to the family courts has confidence that the court will not be used to perpetrate further abuse against them. Currently, family judges have a range of powers to make sure that difficult courtroom situations are handled sensitively for vulnerable witnesses. In proceedings where both parties are litigants in person and concerns of domestic abuse have been raised, that may include carrying out cross-examination by way of the judge or the justices’ legal advisers putting questions to the parties themselves. Alternatively, the judge can decide that an alternative form of evidence, such as pre-recorded cross-examination from criminal proceedings, is sufficient.
However, there are cases in which those alternative forms of evidence or cross-examination will not be sufficient to test the evidence in the case thoroughly. We must recognise that for the judge to step into the arena to ask those questions is often—how can I put it politely?—suboptimal. In those instances, the court currently has no power to appoint an advocate to carry out the cross-examination in place of the parties themselves. That can lead to situations in which the court is powerless to prevent a victim from being cross-examined in person by their abuser.
I am sure we would all feel uncomfortable about a situation in which evidence was not challenged. The whole point of an adversarial process is to tease out inconsistencies and omissions in the evidence. If that is not happening, the proceedings are not fair, so it is important that there should be scope within the trial process for frailties in the evidence to be ruthlessly exposed.
We recognise that the issue has been the subject of close attention in the House and among experts in the field. Victims have told us that being subject to cross-examination in person in this way can be retraumatising, and judges have told us that the situation is an impossible one for them to manage. I entirely sympathise. We are determined that the court should never be used as a forum to perpetuate further abuse, and that it should have sufficient powers in all cases to prevent abuse from being perpetrated through court processes.
The purpose of the clause is therefore to introduce a prohibition on victims being cross-examined in person in specified circumstances. In addition, the clause gives the court the power to appoint an advocate, paid for from central funds, for the purpose of cross-examination where there are no satisfactory means to cross-examine the witness or to obtain the evidence, where the party does not appoint a legal representative or themselves to do so, and where it is necessary in the interests of justice to do so.
Jess Phillips
I welcome what the Minister is saying, but on the specific instances he is outlining of who exactly would be able to assess this, does he foresee an element of the judge’s discretion also allowing them to go to central funds where they believe enough that cross-examination would cause distress, regardless of whether there may previously have been a conviction or an order in place? As we all know, there is a disparity between conviction and order rates on the one hand, and domestic violence rates on the other.
Alex Chalk
Courts have a common law discretion to manage their own proceedings, but it will be important for us to assist the them as much as possible by setting out the categories that should trigger the exemption. Although courts can act of their own motion, it is none the less important to prescribe to an extent that the provision applies in circumstances where somebody has been convicted, charged or cautioned. I will develop that point in the following passage.
In the light of the recommendation from the Joint Committee on the Draft Domestic Abuse Bill, the clause now makes provision that the automatic ban will also apply in other cases where a witness has adduced specified evidence of domestic abuse. The evidence will be specified in regulations and, as recommended by the Joint Committee, we intend for this evidence to broadly replicate that which is used to access civil legal aid. That is probably the point that the hon. Lady was driving at.
The prohibitions also apply reciprocally, to prevent a victim from having to cross-examine their abuser in person. Where the automatic ban does not apply, the clause also gives the court a discretion to prohibit cross-examination in person where it would be likely to diminish the quality of the witness’s evidence or cause significant distress to the witness or the party. That is the point about a court’s discretion: the judge has the individuals in front of them, can hear from them and can make a decision based on that.
In any case where cross-examination in person is prohibited, either under the automatic prohibition or at the discretion of the court, the judge must consider whether there is a satisfactory alternative means by which the witness can be cross-examined or the evidence can be obtained. That would include means that already fall under the judge’s general case management powers, such as putting the questions to the witness themselves or via a legal adviser, or by accepting pre-recorded cross-examination. I suppose one might imagine cases where the things that need to be cross-examined on are so narrow in scope that it would not be worth the aggravation of instructing independent counsel if the judge can do it and do justice in that way. It is important that the court can act of its own motion and flexibly, and the clause retains that flexibility.
If there are no satisfactory alternative means, the court must invite the prohibited party to appoint a legal representative to carry out cross-examination on their behalf. If they choose not to, or are unable to, the clause gives the court the power to appoint a legal representative—an advocate—for the sole purpose of conducting the cross-examination in the interests of the prohibited party. The court must appoint an advocate where it considers this to be necessary in the interests of justice.
There could be circumstances where it is not possible to protect the prohibited party’s rights to access to justice and/or a family life without the appointment of such an advocate. This might be in circumstances, for example, where the evidence that needs to be tested by cross-examination is complicated, because it is complex medical or other expert evidence, or because it is complex or confused factual evidence, say from a vulnerable witness. The clause also confers power on the Secretary of State to issue statutory guidance in connection with the role of that advocate.
The clause also confers power on the Secretary of State to make regulations about the fees and costs of a court-appointed advocate to be met from central funds. We understand the particular skill and care that is needed to carry out cross-examination of a vulnerable witness effectively. We will be designing a full fee scheme to support these provisions, in consultation with the sector and interested parties, prior to the implementation of the Bill.
This clause seeks to ensure that, in future, no victim of domestic abuse has to endure the trauma of being questioned in person by their abuser as part of ongoing family proceedings. It makes a big difference, and I commend it to the Committee.
Peter Kyle
It is rare but pleasing when one agrees so fully with the person one shadows, and I am grateful to him. I do not want to shock the Minister—I do not want him to be clutching his pearls as I say such words—but it is certainly the situation we find ourselves in on this clause. We are not opposing or seeking to amend the clause; we agree fully with it and what it seeks to achieve.
However, I want to spend a bit of time explaining how we got to where we are, because it is important. It is important that we make sure the record reflects the situation that this clause seeks to rectify and the impact that the cross-examination by perpetrators of victims has had on people. In so doing, I speak on behalf of a great number of advocates, both in Parliament and outside, over a great period of time. I can speak for myself on this issue, but I am very aware of the fact that I am also speaking on behalf of a lot of other people.
I had personal experience of this issue very soon after getting elected in 2015. Soon after the election, I was sitting on the floor of my campaign office among the detritus of a very vigorous campaign, sorting through things and trying to figure things out, when a very fragile, very vulnerable and very damaged woman suddenly appeared in the doorway. She came in to see me, and said, “Are you the new MP?” I said yes, and she said, “I saw your leaflets. You look like a friendly person. I am now going to flee my relationship, and I will only speak to you about it.” We sat in the corner of the office, and this woman was bruised and bleeding. She had literally escaped from the relationship, and I, as an MP of a few days, was thinking on the inside, “Oh my God, what do I do in this situation? How do I help this extraordinarily vulnerable person?” I just did the best I possibly could, and that involved brokering a relationship between her and the police, about which she was terrified. She was scared of the authorities because the authorities had let her down so many times, repeatedly. I supported that woman, and she went into a protective programme. She now has a new identity and a new life, and although she will never ever be able to escape the horrors of what she went through, she certainly has an opportunity to discover new, more fruitful aspects of life, which she was prevented from doing before.
One of the aspects I experienced very soon after the process of supporting her began was the experience of the family court. I could not believe what I heard when she came to see me after some hearings in the family court, where she was made to share the space of the person she had fled. Having seen her on the day she fled her relationship, it was horrendous to hear that she was forced into the same waiting room as this person, had to be in the same space when their relationship was discussed and, crucially, was cross-examined by him.
At the same time, another constituent came to see me in my surgery. She had just been cross-examined by her abusive partner for the third time. She had previously been hospitalised; the perpetrator had broken more than a dozen or her bones and repeatedly raped her. On the third appearance in the family court, she was shaking so violently that she needed assistance to get to the taxi afterwards. On the journey home, the taxi driver had to stop and help her out of the taxi so that she could vomit on the pavement.
That was happening to people who I was sitting with and who I represented in Parliament. I could not understand that the very institutions that existed to protect people like them were facilitating the abuse—in front of judges, in a room with police officers, abuse was happening, and nobody was offering support. To my shame, I could not quite believe that this was possible in 21st-century Britain. When I came back to Parliament, I sought out my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) and asked him about it. I said, “I am hearing this thing, but I can’t believe it is possible.” He, as the former Director of Public Prosecutions, said, “It is happening, and there is a big campaign out there to try and change it.”
I could not believe that it was still happening, so I went to speak to Ministers. Repeatedly, Minister after Minister told me that a cultural change was needed in the criminal justice system, not a legislative change. I could not accept that. Having gone to speak to judges to understand why change was not happening, and having repeatedly spoken to Ministers, I found it incredibly hard to believe that the Government were not seeing or understanding the abuse. Of course, they were seeing it, but they were refusing to change. There are many lessons here, and I hope Back Benchers realise that persistence is one of them.
On 15 September 2016, I secured a Backbench debate that was led by Angela Smith, the then Member for Penistone and Stocksbridge. We had gone with a cross-party group to get a Backbench debate. There were several Tories in the group, and we worked as a formidable team. My hon. Friend the Member for Birmingham, Yardley was not part of the group that went to the Backbench Business Committee, because she sat on the Committee and was supposed to be impartial, but it was clear from her facial expressions where she stood on the issue.
During the debate itself, I was able to put on record the most shocking example of this abuse that I have ever come across. In the eight or nine months leading up to the debate, I met dozens of women who had gone through such abuse. The most shocking case was that of Jane Clough—some people in this room will be aware of her case. I am not the sort of person who normally quotes himself, but in going through all the different debates that have taken place in Parliament in the last five years on this issue, I read some of the examples I put on record, and I want to quote directly from one debate. My reason for doing so is that I want Members to realise, and I want the record to reflect, that this example has been on the House of Commons record for almost four years.
Alex Chalk
Before turning to the specific point, I listened carefully to what the hon. Member for Hove said, and it was clear that he has taken a close interest in the issue. I thank him for the energy that he has clearly applied to it. As I was listening to him, I heard about Bills that had fallen, elections that had come and UQs that had happened, and I was reminded of Otto von Bismarck, the German Chancellor, who said: “Laws are like sausages; it is best not to watch them being made.”
That is absolutely right and I felt it about this. Inevitably—not inevitably, but not uncommonly—it can take time to get there, but we are absolutely delighted with where we have arrived at with this important legislation. It is important to note, too, that it takes place in the context of other important legislation that it was possible to get over the line earlier, such as on coercive control or modern slavery. The Bill sits within that wider context in which we take some pride.
I will first address the issue of spent convictions, friends and so on, and that will allow me to go back to a point made by the hon. Member for Birmingham, Yardley, when she in effect said, “What happens in circumstances where it is not necessarily a conviction or a caution, but something else?” If hon. Members turn to page 40 of the Bill, that is the relevant part of clause 59, which deals with how the Matrimonial and Family Proceedings Act 1984 will be amended. The clause having dealt specifically with issues of conviction and caution, proposed new section 31U—“Direction for prohibition of cross-examination in person: other cases”— states:
“In family proceedings, the court may give a direction prohibiting a party to the proceedings from cross-examining…a witness in person if…none of sections 31R to 31T operates to prevent the party from cross-examining the witness”—
that relates to people protected by injunctions, convictions or other matters—and
“it appears to the court that—
(i) the quality condition or the significant distress condition is met, and
(ii) it would not be contrary to the interests of justice to give the direction.”
In other words, it would be open to the party to indicate to the court: “Yes, I don’t automatically qualify, but I’m going to provide a statement that indicates that it would adversely affect the quality of the evidence I can give were I to be cross-examined by the other party.” I hope that that will give the courts confidence that flexibility is deliberately built into the system.
Liz Saville Roberts
To return to my concern about the lack of communication between jurisdictions, on spent convictions we are going quite a long way down the road as to what communication is necessary. Is the Minister confident that there is sufficient communication, or that there will be in the wake of the legislation, to ensure that such situations are safeguarded against?
Alex Chalk
Yes, I am confident, but it goes back to the earlier point that we were making about culture. If, by dint of the legislation, the family judges, when deciding whether to make one of the orders, are alive to the fact that they will need to consider whether someone has a conviction or a caution, that will, in and of itself, encourage and require the co-operation of the police. In other words, the court will have to find out what is on the police national computer in respect of the other party.
I am confident that courts will see their way to ensuring that those lines of communication are in place. Quite apart from anything else, if a judge finds himself, or herself, in a situation where he cannot make the order because he has not been provided with the information he needs, we can be very sure that he is likely to say something about that. That will, I am sure, elicit change in the fullness of time, so the short answer to the hon. Lady’s question is yes.
Question put and agreed to.
Clause 59, as amended, accordingly ordered to stand part of the Bill.
Clause 60 ordered to stand part of the Bill.
Clause 61
Offences against the person committed outside the UK: Northern Ireland
Question proposed, That the clause stand part of the Bill.
Alex Chalk
Clause 61 extends the jurisdiction of the criminal courts in Northern Ireland in the same terms as clause 60 extends the jurisdiction of the criminal courts in England and Wales. We did not go into clause 60 in any detail, but that is what it is about.
Clause 61 gives effect in Northern Ireland to our obligations under article 44 of the Istanbul convention, as it applies to article 35, which covers physical violence, and article 39, which covers forced abortion and forced sterilisation. Like clause 60, it does so by extending extraterritorial jurisdiction to certain offences against the person, including actual or grievous bodily harm and murder and manslaughter, in circumstances where the courts do not already have such jurisdiction. That will mean that a UK national or a person habitually resident in Northern Ireland who commits one of the offences outside the UK can, exceptionally, stand trial for the offence in Northern Ireland.
Question put and agreed to.
Clause 61 accordingly ordered to stand part of the Bill.
Clause 62
Amendments relating to offences committed outside the UK
Question proposed, That the clause stand part of the Bill.
The Chair
Alex Chalk
The clause simply reintroduces schedule 2, which contains amendments relating to offences committed outside the UK. As with clauses 60 and 61, the amendments are necessary to ensure compliance with article 44 of the Istanbul convention. Part 1 of schedule 2 contains amendments to provide for extraterritorial jurisdiction over certain offences other than those set out in clause 60 under the law of England and Wales. Part 2 of schedule 2 contains amendments to provide for extraterritorial jurisdiction over certain offences under the law of Scotland. Part 3 of schedule 2 contains amendments to provide for extraterritorial jurisdiction over certain offences not including those set out in clause 61 under the law of Northern Ireland.
Schedule 2 contains amendments to a number of enactments to provide for extraterritorial jurisdiction over certain offences under the law of England and Wales, Scotland and Northern Ireland. Together with clauses 60 and 61 and provisions in the Domestic Abuse and Family Proceedings Bill currently before the Northern Ireland Assembly that give extraterritorial effect to the new domestic abuse offence in Northern Ireland, schedule 2 will ensure that the UK complies with the jurisdiction requirements of article 44 of the Istanbul convention.
Part 1 of the schedule covers England and Wales and gives effect to the UK’s obligations under article 44 as it applies to article 33, which covers psychological violence, article 34, which covers stalking, and article 36, which covers sexual violence, including rape. It does so by extending extraterritorial jurisdiction to offences under sections 4 and 4A of the Protection from Harassment Act 1997, sections 1 to 4 of the Sexual Offences Act 2003 where the victim of the offence is aged 18 or over, and section 76 of the Serious Crime Act 2015, which is about coercive control. It will mean that a UK national or a person habitually resident in England and Wales who commits one of these offences outside the UK can, exceptionally, stand trial for the offence in England and Wales. Where the offence involves a course of conduct, the offence may be committed wholly or partly outside the UK.
Part 2 of the schedule covers Scotland and gives effect to the UK’s obligations under article 44 as it applies to articles 33 to 36 and article 39. It does so by extending extraterritorial jurisdiction to the common law offence of assault, to offences under sections 1 to 4 of the Sexual Offences (Scotland) Act 2009 where the victim of the offence is aged 18 or over, and to the offence of stalking under section 39 of the Criminal Justice and Licensing (Scotland) Act 2010.
That will mean that a UK national or person habitually resident in Scotland who commits one of these offences outside the UK can, exceptionally, stand trial for the offence in Scotland. Where the offence involves a course of conduct, the offence may be committed wholly or partly outside the UK.
Part 3 of the schedule, as the Committee will be cottoning on to by now, covers Northern Ireland and gives effect to the UK’s obligations under article 44 as it applies to article 34 and 36. It does so by extending extraterritorial jurisdiction to offences under article 6 of the Protection from Harassment (Northern Ireland) Order 1997 and part 2 of the Sexual Offences (Northern Ireland) Order 2008, again where the victim of the offence is aged 18 or over. It will mean that a UK national or person habitually resident in Northern Ireland who commits one of these offences outside the UK can, exceptionally, stand trial for the offence in Northern Ireland. Where the offence involves a course of conduct, the offence may be committed wholly or partly outside the UK.
Jess Phillips
I simply want to welcome specifically the terminology of “habitual resident” within the UK. The Minister and I have met a number of different families over the years who have suffered violence, and I am afraid to say that those cases we get to see usually involve murder in a different country. Where the perpetrator of the crime was back here in Britain and was not a British citizen but was habitually resident in this country, the authorities had found that their hands were tied. While the measures seem perfunctory and were a lot of words for the Minister to say, to families they mean a huge amount, so I welcome them.
Question put and agreed to.
Clause 62 accordingly ordered to stand part of the Bill.
Schedule 2 agreed to.
Clause 63
Polygraph conditions for offenders released on licence
Question proposed, That the clause stand part of the Bill.
Alex Chalk
This clause is about polygraph conditions. It is an important clause that relates to conditions for offenders released on licence. It is one of a number of measures in the Bill directed at strengthening the effective management of domestic abuse perpetrators. It allows the Secretary of State for Justice to introduce mandatory polygraph examinations as a licence condition for offenders convicted of a relevant domestic abuse-related offence. The relevant offences include murder, specified violent offences and the offence of controlling or coercive behaviour under the Serious Crime Act 2015. Necessarily, this is a new departure to some extent, but it is kept within tight limits, as members of the Committee would expect.
Jess Phillips
The domestic violence disclosure scheme, which I will refer to from this moment forward as Clare’s law, was introduced in 2014 after Clare Wood was murdered by her ex-boyfriend, George Appleton. For those who are unfamiliar with the case, Clare Wood had made several complaints to the police about George Appleton before her death. Those complaints included criminal damage, harassment, threats to kill and sexual assault. A panic room had been installed in her house following an attempted rape.
Clare was unaware that George Appleton had a history of violence against women and had been jailed for three years in 2002 for harassing another woman, and for six months a year earlier after breaching a restraining order. However, he was still able to enter Clare’s home, strangle her and set her on fire. The Independent Police Complaints Commission concluded that Clare had been let down by individual and systematic failures by Greater Manchester police.
Clare’s law was designed to set out procedures that could be used by the police in relation to disclosure of information about previous violent, abusive and offending behaviour by a potentially violent individual towards their partner where that might help to protect that partner from further violent and abusive offending. There are two procedures for disclosing information: the right to ask, which is triggered by a member of the public applying to the police for a disclosure, and the right to know, which is triggered by the police making a proactive decision to disclose information to protect a potential victim. Disclosures are made when it is deemed that there is a pressing need for the disclosure of the information to prevent further crime.
While there is no doubt that Clare’s law was introduced with entirely good intentions—I am not here to challenge that at all—there is some concern that this well-intentioned piece of legislation is currently not operating as it should be, and concern about some alarming instances where, as it operates currently, it could be causing more harm.
First, Clare’s law has had limited use since its creation in 2014. According to data from March 2018, there were 4,655 right to ask applications, resulting in 2,055 disclosures, and 6,313 right to know applications, resulting in 3,594 disclosures, so it can be seen clearly that disclosures are not made in every case. In comparison, in the same time period there were just shy of 1.2 million recorded domestic abuse cases in England and Wales, so we are talking about a very small number of cases that seem to be using the scheme. That in itself is not necessarily evidence that it is not working, but I think it is descriptive of where it may work in some places and not others.
In addition, there appears to be a postcode lottery regarding disclosures. It is assumed that that variation is due to the vague nature of the pressing need test that currently exists in the law. For example, in 2019 Kent had an 8.5% disclosure rate for right to ask disclosures, while Hampshire had a 99.5% rate. That is worrisome, but what is of even greater concern is that the average time taken for each disclosure is 39 days. I imagine all will agree that in cases of domestic abuse, that mitigates quite a lot of the potential prevention and could potentially heighten a victim’s risk.
In addition, while there was a review of the initial pilot phase of Clare’s law and a review one year on, those reviews were procedural and did not consider the impact of the scheme on domestic abuse or analyse the scheme’s value for money. There is therefore no evaluation of whether the disclosures made have any benefit to the person they are made to. In fact, one survey indicated that 45% of early-wave recipients of information went on to be victimised by the partner they warned about. In normal language, that means that 45% of the people who have been given the information following one of the variety of requests under this law went on to be victimised and abused by that person.
One such example is Rosie Darbyshire, who was murdered with a crowbar by her partner Ben Topping. Having made an application for information under Clare’s law on 28 January, she was killed just over a week later on 7 February. She was left unrecognisable after sustaining more than 50 injuries.
Other concerns include the impact of coercive and controlling behaviour where women are unable to contact the police or where contact from the police would only serve to make matters worse. At the beginning of a relationship—I think we can all understand this, and it applies not just to women but anyone—women are often not alive to the risk of domestic abuse. Only when it is too late are they advised of their partner’s past.
Gemma Willis from Teesside, reporting to the BBC, was only advised of Clare’s law after her partner was arrested following smashing her head into a window, slashing her neck with a trowel, hitting her with hammers and threatening to kill her family. Also reporting to the BBC, Dr Sandra Walklate from the University of Liverpool said of the scheme:
“We have no real way of knowing whether it’s working or not”.
While clause 64 operates to place Clare’s law on a statutory footing, the proposed amendments are designed to safeguard against circumstances and the case studies outlined above. The amendments would mean that police should evaluate whether disclosures made under Clare’s law are having a positive impact on the safety and empowerment of victims. I am not seeking for police forces just to do a paper-shuffling exercise: “A request has come in. What will we do with this request? Does it meet the tests as set out in the law?” I am rather seeking for police forces to run some manner of risk assessment on the impact of this disclosure being made, not on the perpetrator but on the victim.
The amendments would also require police to undertake an exercise to establish the efficacy of the disclosures that have been made in the past few years, to simply have a look over how well it is working. The pressing need test, which I have already referred to, would be refined and clarified to create uniformity with future disclosures. Based on information set out, it cannot be argued that my amendments are anything less than essential for the Government, if they want to ensure that Clare’s law is as good as it could be and that the protective effect it was intended to have does not, in some cases, cause harm.
Victoria Atkins
I would like to take a moment to reflect on the extraordinary campaigns, charities and local efforts, through which families, such as the Wood family, often find the strength and resilience somehow to campaign and carry on when they have suffered a devastating loss in their family. We have heard why Clare’s law is called Clare’s law: her family felt that had she been aware of her murderer’s background, she would have been able to stop the relationship earlier.
There are so many efforts in the world of looking after and helping victims of domestic abuse, both at the national and local level, where people have done the most extraordinary things. I want to put that on record, because I am very conscious of it as we work through the Bill and our non-legislative work.
We absolutely acknowledge that there is much more to be done to raise awareness of the scheme, primarily with the public, but also with the police. We want to increase the number of disclosures and ensure that the scheme is operated consistently across all police forces.
Jess Phillips
I am indeed content. I look forward to working with the Minister to ensure that the law—it bears somebody’s name and is their legacy—truly does what Clare’s family wish it to do. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 64 ordered to stand part of the Bill.
Clause 65
Grant of secure tenancies in cases of domestic abuse
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
Part 7 of the Bill is a collection of important measures, although there is perhaps not a common theme running through them other than that. The clause relates to secure tenancies and contributes towards the Government’s wider aim to support victims of domestic abuse to leave their abusive circumstances, and to ensure that they and their families have the stability and security they need and deserve.
Clause 65 does two things. First, it will ensure that victims of domestic abuse who have or had a lifetime social tenancy, and who have had to flee their current home to escape abuse, will retain the security of a lifetime tenancy in their new social home where they are granted a new tenancy by a local authority. The provisions apply to all local authorities in England and protect all lifetime social tenants in such circumstances, regardless of whether they hold a secure local authority tenancy or an assured tenancy with a private registered provider of social housing—usually a housing association.
Secondly, the clause will safeguard domestic abuse victims who hold a joint lifetime tenancy and who want to continue living in their home after the perpetrator has moved out or been removed from the property. It does this by providing that, if the local authority grants them a new sole tenancy, it must be a lifetime tenancy. The provisions apply when the tenant is a victim of domestic abuse, and they extend to situations where a member of the household—for example, a child—has suffered domestic abuse. In the year to the end of March 2019, nearly 1,500 local authority lettings were made to social tenants who cited domestic violence as the main reason they left their former social home. Although that is a small proportion of new tenants overall, the provisions would protect more than 1,000 households affected by domestic abuse.
The measures largely mirror current provisions in the Secure Tenancies (Victims of Domestic Abuse) Act 2018. That Act, which delivers on a 2017 manifesto commitment, ensures that when the mandatory fixed-term tenancy provisions in the Housing and Planning Act 2016 are brought into force, the security of tenure of victims of domestic abuse will be protected. After listening carefully to the concerns of social housing residents, the Government announced in August 2018 that we had decided not to implement the mandatory fixed-term tenancy provisions at that time. In order to ensure that victims of domestic abuse are protected, we also announced that we would legislate to put in place similar protections for victims of domestic abuse where, as is the case now, local authorities offer fixed-term tenancies at their discretion; the clause gives effect to that commitment. The clause also amends the definition of “domestic abuse” in the 2018 Act to bring it in line with the definition in this provision.
Question put and agreed to.
Clause 65 accordingly ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Rebecca Harris.)