Wednesday 3rd February 2021
(3 years, 2 months ago)
Lords ChamberDomestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Amendment Paper: HL Bill 124-V Fifth marshalled list for Committee - (3 Feb 2021)
Lord Rosser (Lab) [V]
My Lords, I can be very brief in the light of what the two previous speakers have said on this amendment.
The purpose of this group of amendments, and a later group, is simply to provide consistency of protection for victims and survivors of abuse, across both the family and civil courts. These amendments would replicate in the civil courts protections that the Government already agree are needed in the family court. This seems an exceptionally reasonable ask. We support the aim of and reason for the amendments, as set out by the noble Lord, Lord Marks of Henley-on-Thames. I will be interested to hear from the Government why they have chosen to draft the Bill with this distinction between the courts.
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, explained, these amendments seek to bring the procedure relating to special measures in civil courts in line with the provisions in family courts. We agree with the fundamental aim set out by the noble Lord: to ensure fair proceedings, meaning proceedings that are fair not only to the parties but to witnesses.
In that context, the Government’s starting point when considering the experience of vulnerable witnesses in the civil courts stems from the independent inquiry into child sexual abuse, which published its interim report and recommendations in April 2018. The inquiry recommended
“that the Ministry of Justice provides in primary legislation that victims and survivors of child sexual abuse in civil court cases, where they are claiming compensation in relation to the abuse they suffered, are afforded the same protections as vulnerable witnesses in criminal court cases.”
As the inquiry put it, this was to ensure that victims and survivors of child sex abuse can provide the best evidence in civil court cases.
While the Government had some sympathy with the recommendation, we also agreed that the issues raised by this recommendation needed further consideration, including whether it was right in principle to extend the protections to other vulnerable witnesses. The Government therefore sought expert help from the Civil Justice Council, which was asked to consider the vulnerability of parties and witnesses in civil actions, not just in relation to claims arising from sexual assault or abuse but more widely. The Committee will be aware that, after extensive consultation and expert input, the Civil Justice Council published its report in February last year. It conceded that there was no single or coherent set of rules in the Civil Procedure Rules dealing with vulnerability in the same way as there was in the Family Procedure Rules.
In this context, we must remember an important point, to which the noble Lord, Lord Marks, alluded. Civil cases, by their nature, have the potential to cover a much broader range of circumstances where there is no prior close connection between the parties; for example, where a victim is suing an alleged perpetrator of sexual abuse or in an action against the police or an employer where abuse is alleged. Of course, I take on board the noble Lord’s examples of cases where the parties may be corporate but, none the less, there are individual witnesses who are victims.
Having considered the matter, and in relation to special measures, the Civil Justice Council report did not go as far as recommending that it should be enshrined in primary legislation. Rather, it was felt that it was best left to the flexibility of court rules since—this is an important point—judges in civil proceedings already have inherent powers to order the provision of special measures under the Civil Procedure Rules when it is considered necessary. However, the Government took a slightly different view, taking the recommendations that came from the independent inquiry into child sexual abuse, which I have already mentioned.
As the Civil Justice Council report highlighted, vulnerability in the civil courts is not limited only to victims of domestic abuse. Some people may have mental or physical conditions that render them vulnerable and hamper their access to justice. Others, as with victims or survivors of abuse, may be vulnerable solely by reason of the subject matter of the proceedings before the court. This, as the report suggested, may affect their ability to participate in proceedings or give their best evidence.
We want to avoid—this is a risk—unnecessarily prolonging cases because of satellite litigation which revolves around the granting of special measures where the case is not contingent on vulnerability. At the same time, as I said, we need to ensure that the justice system is fair—that is, fair for all. Therefore, we must be careful to focus this provision on only the circumstances in which it is needed.
Even though the approach is different in civil courts, judges in civil proceedings already have inherent powers to order the provision of some special measures under the Civil Procedure Rules when it is considered necessary. I hope that this goes some way towards addressing the concern of the noble Lord, Lord Marks, which was shared by the other two speakers in this short debate; I acknowledge their contributions, of course, but I think it is fair to say that they largely agreed with the approach taken by the noble Lord. In that context, the Civil Procedures Rule Committee continues to examine the issues faced by vulnerable witnesses in civil courts.
While we want to ensure parity between each jurisdiction, we also need to build in allowances for the differences—and there are differences—between them. This is why the provisions in respect of cross-examination and special measures in civil cases differ from those in family proceedings.
In the light of my discussions with the noble Lord, Lord Marks, and others, and in the light of all the contributions in this short debate, let me say—in clear terms, I hope—that we very much appreciate the arguments raised in relation to fairness and the concerns around availability of special measures for those who will need them in the civil courts. We will consider this issue carefully ahead of Report and continue to listen to arguments. Of course, I remain open to discussion with both the noble Lord, Lord Marks, and others.
In the light of that confirmation and undertaking, I hope that the noble Lord will be content to withdraw his amendment.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, first, let me say how grateful I am to the noble Lords who spoke.
It was interesting to hear my rather dry opening supplemented by the personal experience of the work of the noble Baroness, Lady Bennett of Manor Castle, in courts in Australia. She made the valuable point that, generally speaking, litigants and witnesses are not used to being in court—it is a new experience for them and this adds to their concern, which is of course amplified in the case of vulnerable witnesses and parties. She also gave the interesting and important example of family farms giving rise to very personal disputes, where there is often a background of abuse. I am bound to say that, in my years of practice on the Western Circuit before doing more of what I do now, disputes about family farms were endless. They are to be taken into account. I am grateful to the noble Lord, Lord Rosser, for his support as well.
The Minister has given a considered response and ultimately made an undertaking to me and others. I am grateful for the way he has dealt with the amendments. However, I am bound to say that nothing I heard from him justifies the distinction to be drawn between the protection afforded in family proceedings and the protection available in civil proceedings. I got the impression that he understands the reasons why we have disputed that distinction.
I do not accept that a system based on the Civil Procedure Rules for protection in civil proceedings is anything like as good as a system based on statute, as the arrangements in family proceedings will be following this Bill. If a statutory arrangement is good enough for family proceedings and is applicable as appropriate for those, I would suggest that it is appropriate for civil proceedings as well. Nor do I accept that there is a realistic prospect of satellite litigation arising regarding the availability or withholding of special measures. That seems most unrealistic and, in any event, even if it were realistic, it would be no more realistic in a set of measures based on legislation than it would be presently in a set of measures based on the uncertain application of the rules of court. I welcome the Minister’s commitment to further engagement. I regard this as a very important issue, and I will of course speak to him, as no doubt will others, between now and Report in the hope of achieving agreement. I beg leave to withdraw the amendment.
Lord Paddick (LD) [V]
My Lords, I agree with the comments made by the noble Baroness, Lady Redfern, in a broader context. On the particular issue in this group, I have listened very carefully to the case made by the noble Lord, Lord Rosser, reinforced by the noble Baroness, Lady Newlove. The noble Lord talked about a risk assessment before cross-examination if someone has a history of abuse. Presumably he is referring to somebody with a history of abuse but whose convictions are spent under the Rehabilitation of Offenders Act. The noble Baroness, Lady Newlove, talked about repeat offenders. Repeat offending is very common when it comes to domestic abuse, but I wonder whether a perpetrator with a history of abuse, a repeat offender, is less likely to have spent convictions or cautions.
The Rehabilitation of Offenders Act is an important piece of legislation that allows offenders to move on from their previous offending, but my understanding is that if a court decides that justice cannot be done without the conviction or caution being taken into account, the court can take account of a spent conviction. This potentially means that a court could prevent cross- examination of a victim of domestic abuse if it decided that a spent conviction or caution was relevant.
I look forward to hearing the Minister’s understanding of the legislation as it is. We have no objection to the Government’s amendments in this group.
Lord Wolfson of Tredegar (Con)
My Lords, I will begin with the amendments tabled by the noble Lord, Lord Ponsonby, to which the noble Lord, Lord Rooker, so ably spoke, and will then turn to the government amendments, which deal with various technical and drafting changes to the same clause.
As has been explained to the Committee, Amendment 114, in the name of the noble Lord, Lord Ponsonby, would remove a qualification of the automatic prohibition on cross-examination in family proceedings by those convicted of, cautioned for or charged with specified offences, and their cross-examination by the victim or alleged victim. The removal of this qualification would mean that spent convictions and cautions under the Rehabilitation of Offenders Act 1974 would continue automatically to trigger the prohibition, irrespective of how old they may be or how circumstances might have changed. I respectfully agree with the noble Lord, Lord Paddick, that the Rehabilitation of Offenders Act is a very important provision. It enables a line to be drawn and people to move on.
It is in that context that, at the moment, the form of the Bill is that spent convictions and cautions should automatically trigger the prohibition only where evidence in relation to the conviction or caution is admissible in relation to the current family proceedings. However, as the noble Lord, Lord Rosser, reminded us, and as the Government fully acknowledge, the damage caused by domestic abuse may often last for decades, sometimes a lifetime, and well beyond the point at which a conviction or caution is spent. One must also consider the point made by my noble friend Lady Redfern, that the court process is daunting, especially for victims of abuse. Therefore, the noble Lord, Lord Rosser, is right to test the adequacy of Clause 63 in guarding against cross-examination which remains inappropriate despite convictions or cautions being spent. I am sure that all Members of the Committee will have been moved by the personal testimony of my noble friend Lady Newlove, when she explained the effect that such cross-examination can have.
However, the Government believe that Clause 63 provides adequate protection in such circumstances. We must bear in mind that the automatic prohibition on cross-examination is also triggered where a protective injunction is in place—that is the force of the new Section 31S—or where prescribed evidence of domestic abuse is provided to the court; that is the force of the new Section 31T. Moreover, and of greater importance here, given the sometimes more historical nature of abuse, is what we intend should become Section 31U of the Matrimonial and Family Proceedings Act 1984. This is an important provision, which provides context against which the noble Lord’s amendment should be considered.
New Section 31U is in deliberately broad terms and provides for a wide discretion to meet the particular facts and circumstances of the case before the court. It enables the court, either in response to an application or of its own motion, to prohibit cross-examination where it would diminish the quality of evidence or cause significant distress, so long as to do so is not contrary to the interests of justice. Any such direction will remain in place until the witness is discharged, unless it is revoked by the court in specified circumstances; for example, if circumstances have materially altered. Therefore, to answer the point made by my noble friend Lady Newlove, we consider the Bill sufficient in cases of spent convictions, because that provision enables the court to impose the ban if it appears to the court that the two conditions in new subsection 1(b) are met. That provision would therefore also deal with the point made by the noble Lord, Lord Rosser, concerning cases of past injunctions or restraining orders. New Section 31U is a very broad provision that enables the court to respond to the facts of a case and ensure that a suitable order is made. I agree with the noble Lord, Lord Paddick, that it is important that the court has this ability, for the reasons that I have set out, under new Section 31U. I hope that this gives the Committee, particularly the noble Lord, Lord Rosser, what they sought, which, according to my note, was clarity and assurance. I hope that I have provided both.
Lord Wolfson of Tredegar
Member’s explanatory statement
This amendment makes a minor drafting change.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, we support this amendment for the reasons given by the noble Lord, Lord Rosser, as amplified by the noble and learned Lord, Lord Mackay, my noble friend Baroness Hamwee and the noble Lord, Lord McConnell of Glenscorrodale.
This amendment recognises that in cases involving domestic abuse, just as in any litigation, engagement between the parties is not limited to conducting the case, giving evidence, cross-examining witnesses and making submissions to the judge. The noble and learned Lord, Lord Mackay, pointed out that the inadequacy of arrangements that govern cross-examination alone make such arrangements difficult to justify.
There is often a need for the parties to consider and discuss the conduct and progress of the case, as the noble and learned Lord, Lord Mackay, pointed out. That is usually done through their advocates. Yet when the parties are perpetrator and victim of domestic abuse, and are unrepresented, the need for engagement can become an occasion for intimidating behaviour or bullying of the victim by the perpetrator. That need not even be deliberate, though it often is. Even if intimidation is not explicit in court, it may be effected by implied threats of what might happen later, or even by fear on the victim’s part—even if without justification —of what might happen later.
As discussed in earlier groups, the mere presence of the parties together in court can cause distress, intimidation, or trauma to victims. The outcome can be that victims are deterred from bringing proceedings at all. The experience of the proceedings can be grossly traumatic, to the extent of causing lasting harm, and just outcomes can be made that much more difficult to achieve. So, it is completely right that the court should be able to prohibit engagement by a party that unduly distresses the victim in the way set out in this amendment, whether that engagement be direct by the perpetrator or indirect through others. Yet, if the parties have no means to engage at all, there may be opportunities missed for resolving conflict or, at least, for making the issues clearer and enabling the court to achieve safer outcomes.
In cases where the parties are not represented, it is obviously sensible for there to be provision for representation to be arranged. As the amendment proposes, that should involve, in appropriate cases, the instruction of a court-appointed lawyer—not just for the perpetrator but for the victim as well. That is what the amendment proposes and I firmly believe it is right to do so. For my part, I believe that justice would be best done by ensuring that full legal aid is available for both parties to domestic abuse proceedings throughout those proceedings, which often last through several hearings, as the noble Lord, Lord Rosser, my noble friend Baroness Hamwee and the noble Lord, Lord McConnell, have said. The noble Lord, Lord McConnell, also highlighted the real risk of deterring litigants from bringing or pursuing proceedings once they are under way, by the absence of arrangements for representation.
This amendment does not go as far as we would like, but I know many noble Lords believe that full legal aid for both parties should be the outcome. Meanwhile, it would fill an important gap by preventing intimidation of victims by perpetrators during the course of proceedings, while keeping the door open to engagement between lawyers, which may smooth a path to resolution.
Lord Wolfson of Tredegar (Con)
My Lords, as the noble Lord, Lord Rosser, has explained, this amendment —to which my noble and learned friend Lord Mackay of Clashfern has added his, if I may respectfully say, very weighty name—seeks to expand the scope of the prohibition of cross-examination provided for in Clause 63 by prohibiting the perpetrator from engaging directly or indirectly with the victim during proceedings where that engagement would cause them significant distress. It goes on ultimately to provide for the potential appointment of a legal representative, chosen by the court, to represent both parties to ensure a fair process in the interests of justice in such cases. I can assure the Committee, in particular in response to the points made by my noble and learned friend Lord Mackay of Clashfern and others, that because this amendment has been supported by the Magistrates’ Association, we have given it very careful consideration.
As the noble Baroness, Lady Hamwee, explained, I am as every bit as concerned as her, and indeed the noble Lord who is proposing the amendment, to ensure that domestic abuse victims are adequately protected in the family courts. It is for that reason that the Government are already taking decisive steps to act on the recommendations of the Expert Panel on Harm in the Family Courts, in response to which we published our implementation plan in June 2020.
The Bill contains various measures designed to protect domestic abuse victims in family proceedings and across the other jurisdictions. In that context, I bear in mind the point made by the noble Lord, Lord McConnell of Glenscorrodale: the human impact that domestic abuse has, and that it can require some bravery to go to and appear in court in those circumstances, a point also made by the noble Lord, Lord Marks. Therefore, within the court environment, our provisions on special measures made it clear that the victims of domestic abuse and other parties or witnesses are eligible for special measures such as a screen during proceedings, where the court is satisfied that the quality of their evidence is likely to be diminished due to their vulnerability. In that context, on the point put to me by the noble Lord, Lord McConnell of Glenscorrodale, regarding the position of children, Clause 3(2) provides that any reference in the Bill to a victim of domestic abuse
“includes a reference to a child who … sees or hears, or experiences the effects of, the abuse, and … is related to A or B.”
Therefore, the Bill is structured very much with victims of domestic abuse, who may include children, firmly in mind.
It is not entirely clear from the noble Lord’s amendment whether the intention is that “direct or indirect engagement” during proceedings be confined to the court setting, by which I mean what goes on in the courtroom itself, or extend more widely for their duration, as set out in debate by my noble and learned friend Lord Mackay of Clashfern and repeated by the noble Lord, Lord Marks of Henley-on-Thames. There is often a need for what my noble and learned friend called personal and direct contact between parties in such proceedings. In that regard, one must bear in mind that under Part 3 of the Family Procedure Rules 2010, the court can make a participation direction. That can include the use of special measures, which are a series of provisions to help a party or witness to participate or give evidence in court proceedings. That is a range of measures available both to parties and witnesses to enable them to participate in an appropriate manner.
Beyond that, the courts have a range of protective orders, such as non-molestation orders and restraining orders, that can be made to protect victims when they are not within the confines of the court building. In addition, when introduced by the Bill, domestic abuse protection orders can be used to protect victims of domestic abuse outside the courtroom during proceedings. That is because the DAPO brings together the strongest elements of the existing protective orders into a single comprehensive and very flexible order that we believe will provide more effective and longer-term protection than the existing protective orders for victims of domestic abuse and their children. I underline the point that there may be circumstances in which children are also victims. So, for example, if children are giving evidence inside court, special measures may well be applicable and the prohibition on cross-examination may also apply.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to the noble Lord, Lord Marks, for setting out the rationale for these amendments. As he said, I deferred my comments on the particular point of an advocate’s duty to this group because his amendments directly raise that issue. I am grateful to him for the discussions we had about this matter, as indeed we have had about several matters arising from the Bill.
Amendments 122 and 127 would have the same effect in relation to a qualified legal representative appointed by the court to conduct cross-examination in family and civil proceedings respectively. It is the Government’s intention that such a court-appointed representative is not responsible to any party. They are, in effect, appointed by and responsible to the court in relation to their conduct of the cross-examination, having regard to guidance issued by the Lord Chancellor in connection with this role under what we intend should become Section 31Y(1) of the Matrimonial and Family Proceedings Act 1984.
As I think the noble Lord, Lord Marks, accepts, the amendments would alter fundamentally the representative’s role by making them responsible to the party who has been prohibited from carrying out such cross-examination. While the tabled amendments contain safeguards to counter the resulting tension between being responsible to the prohibited party on the one hand and needing to protect domestic abuse victims on the other by requiring the representative to have regard to protective directions issued by the judge, this does not affect the Government’s view that, as a matter of principle, the representative who has been appointed by the court should not be responsible to the party. That is particularly the case when that party could have, but has not, appointed his own lawyer. Had he done so, a court-appointed lawyer would not have been required and the lawyer appointed by him would have owed him a duty.
Therefore, the Government do not want this to become a client-lawyer relationship. The advocate is appointed for only one function: to ensure that the best evidence is obtained fairly from the witness in cases where the party is prohibited from conducting the cross-examination by themselves. Altering this and introducing such a relationship between the party and the advocate would, in the Government’s view, be a mistake.
The rules pertaining to the advocate scheme will be set out in statutory guidance and relevant procedural rules. Consistent with what I have been explaining to the Committee, the focus will be on ensuring that the function of a cross-examination is carried out—that the witness is questioned on the evidence that they have provided. Before these provisions are commenced, we will work with relevant stakeholders to develop and finalise statutory guidance, to be issued by the Lord Chancellor, for the appointed legal representatives to assist them in discharging this role. We will work with the appropriate rule committees to develop suitable court rules and practice directions to provide a clear structure and process for the operation of these provisions.
For those reasons, we take issue with the proposal in the amendment. Although I hear what the noble Lord, Lord Marks, said about SIAC and court-appointed advocates there, those are completely different circumstances and there is no read-across from SIAC to these provisions. The way that the Bill is set out reflects the Government’s deliberate intention and the clauses have been designed with this in mind.
The framework for the provision of publicly funded legal representation is set out in the LASPO Act. While I have listened carefully to the arguments made on this point, both today and in previous discussions, I do not agree that we should mix the different purposes of LASPO and these clauses as has been proposed. As anticipated by the noble Lord, Lord Marks, I refer to the review that I mentioned in the last debate.
Amendments 123 and 128 relate to the provision of legal aid. Legal aid is available for family cases where there is evidence of abuse, subject to domestic violence, or child abuse evidence requirements, and the relevant means and merits tests. We have expanded the acceptable forms of evidence and removed all time limits on providing that evidence. As I have said, we are also reviewing the means test. The Government are clear that victims of domestic abuse must have access to the help that they need, including to legal aid. The review of the means test is assessing the effectiveness with which that test protects access to justice. As I said in the last debate, we are specifically considering the experience of victims of domestic abuse. I will not repeat the other points I made in that context in the previous debate.
However, legal aid may also be available through the exceptional case funding scheme, where a failure to provide legal aid would breach or risk breaching the ECHR or retained enforceable EU rights. As I have explained, the Bill includes provisions that give the court a power, in specified circumstances, to appoint a publicly funded legal representative to conduct cross-examination. Where a prohibition on cross-examination applies, the court would first consider whether there are alternatives to cross-examination and invite the party to appoint a legal representative to conduct the cross-examination. In circumstances where the party does not, the court considers whether it is in the interests of justice so to appoint. Therefore, publicly funded legal representation is intended to conduct the cross-examination, but not to go beyond it. That is the sole reason why the advocate is appointed.
In that context, we must appreciate the need to protect against unnecessary expenditure of public funds or alteration of the legal aid regime without a wholesale and proper examination of the ramifications of doing so. In circumstances where this provision for a publicly funded advocate is put in the Bill for a limited and specific—if I can still use that phrase—purpose, it would be wrong in principle for us to conduct a review of legal aid provisions in Committee.
I fear that I may not have been able to persuade the noble Lord, as I was not able to persuade him earlier, of the merits of the Government’s approach. I am sure he will tell me that I have not, but I hope that I have been able to explain the Government’s approach and thinking on this issue. In those circumstances, I invite him to withdraw the amendment.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, unquestionably the Minister—to whom I am very grateful, for both his engagement and his considered and careful response—is right about one thing, which is that he has not convinced me of the difference in responsibility to the client between court-appointed advocates and normal lawyers. I accept that the role of legal representative would be altered by my amendments, and that is all to the good.
One point made by the Minister can be considered in a way that he did not. It is a precondition to the appointment of a legal representative by the court that the client or party who would have conducted the cross-examination, but for the prohibition, should have been given the opportunity to instruct his own lawyer. That lawyer would have had full responsibility to the client in the normal way—full duty of care, answerable in negligence and everything else. Generally, Members of the House will appreciate that the reason that that condition is not often met—in other words, the client does not appoint a lawyer—is lack of funds, not that he or she, usually he, does not wish for the lawyer to have a responsibility to the client. There is very little distinction to draw between the two cases, apart from the fact that the rich client gets the lawyer and the poor client has a court-appointed lawyer.
The Minister referred to the safeguards that I built into the amendments in their directions to the judge—
“such directions as the Court may give to protect the witness from significant distress or to prevent the quality of the witness’s evidence from being diminished.”
There may be further room for discussion about those directions and the guidelines within which cross-examination by a lawyer with a responsibility to the client could take place. I will carefully read the guidance that he mentions by which court-appointed lawyers will conduct their cross-examinations.
I completely reject the Minister’s explanation that SIAC involves different issues, as a justification for removing the responsibility. It is precisely because SIAC special advocates and their appointment involve different issues that the responsibility is removed. I explained that in opening. That point does not seem to have been treated with full understanding.
Of course I will withdraw this amendment to enable further review. The point about legal aid is one of accessibility. We know that there is a review under way and I accept that we should not be reviewing this question in Committee, but the problem is one of evidential and financial accessibility. Until both parties can be represented in domestic abuse proceedings, it is difficult to see that proper representation will be achieved. With those points, I beg leave to withdraw the amendment.
Lord Wolfson of Tredegar (Con)
My Lords, as the noble Lord, Lord Marks of Henley-on-Thames, has explained, these amendments intend to bring the provisions relating to prohibition of cross-examination in civil courts into line with the provisions on the same measure in family courts. As the noble Lord explained, we have covered some of the questions of principle already in earlier groups. He indicated that he was therefore going to be brief—as he indeed was—and I hope that both he and the Committee will not take it as any disrespect if I am equally brief in response, given that we have canvassed the points of principle already.
The noble Baroness, Lady Bennett of Manor Castle, described herself as a “support act”, an appellation with which I respectfully but firmly disagree. She spoke eloquently in an earlier group of her personal experience of seeing how court procedures operate in cases involving domestic abuse, and her contribution to this short debate has been equally valuable. I hope that the noble Baroness, Lady Fox of Buckley, will forgive me if I gently point out to her that she should not apologise for not being a lawyer. What is apparently, based on my short time here, a repeated cause for apology in this House is generally regarded as a badge of honour everywhere else.
Turning to the substance, let me explain that the approach we have taken in civil cases differs from that taken in family proceedings for good reasons. The clause dealing with banning cross-examination of vulnerable parties or witnesses stems from the report by the Civil Justice Council, to which the noble Lord, Lord Marks, also referred, and which I spoke about when commenting on the amendments to Clause 62.
The council recommended that the prohibition of cross-examination by a self-represented party should be extended to cover civil proceedings, thereby ensuring some parity with the criminal and family jurisdictions. Importantly, however, the Civil Justice Council cautioned that the ban or prohibition should not be absolute: rather, it should be left to the court’s discretion, given that, as I explained in an earlier group, the civil and family jurisdictions are very different as regards the types of cases, with the civil jurisdiction having a much wider range. As I also said earlier, those cases can have a much broader range of circumstances, where there is no prior close connection between the parties, as there would generally be in the family courts. We have therefore tailored our approach to allow for those differences, which is why the provisions in respect of cross-examination in the civil jurisdiction differ from those in family proceedings. I hope that that explains my thinking to the noble Lord, Lord Marks.
In response to points made by the noble Baronesses, Lady Bennett of Manor Castle and Lady Fox of Buckley, I say it is important that two things are fundamental. First, it is important that protection is available to all witnesses who need it—this was the point made by the noble Baroness, Lady Bennett. In response to the point of the noble Baroness, Lady Fox, the court will of course look at all circumstances in that regard. The overriding concern is to ensure that justice is done in the particular case, which is why leaving it to the discretion of the judge in an individual case to decide when a ban is necessary is based on an unlimited range of factors, including, obviously, the views of parties to the proceedings, any past convictions or the behaviour of parties during the trial. That is how we suggest this matter is best resolved.
Having said all that, I respectfully say that the noble Lord, Lord Marks, has put forward, as one would expect from him, a cogent and well-argued case for his amendment. As such, while we consider that the approach taken in the Bill in relation to the civil courts is well founded, and certainly not—to use a word adopted earlier in this debate—illogical, I hear the arguments he put forward and undertake to consider these amendments further ahead of Report. I will continue to listen with interest to any arguments made by him or others in this regard. Therefore, given this undertaking, I hope that the noble Lord will be content to withdraw his amendment.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, once again, I am grateful to all noble Lords who have spoken in this debate. I certainly agree with the noble Lord, Lord Wolfson, that the noble Baroness, Lady Bennett of Manor Castle, has proved herself much more than a support act. I say to her and the noble Baroness, Lady Fox of Buckley, that there is a crying need in these legal debates for experience from outside the law to inform our debates and bring the lawyers down to earth.
Many noble Lords may well have formed the view that the differences between the noble Lord, Lord Wolfson, and me are arcane legal arguments, in some senses—but we can only have those arcane arguments in a relevant way if we have real-world experiences to back them up. Some of these will be ours, but the noble Baroness, Lady Bennett of Manor Castle, not only clearly demonstrated how the principles that apply to cross-examination in civil proceedings also apply in family proceedings; she also graphically described the personal experience of witnesses in court proceedings. I challenge anyone to explain why that experience differs between the two types of proceeding, where witnesses are, or are liable to be, victims of domestic abuse and are vulnerable.
Although I greatly valued the contribution of the noble Baroness, Lady Fox of Buckley, I do not agree with her that this legislation or these and other amendments overstate the significance of vulnerability or trauma, when the evidence is serious and extensive of how deep vulnerability can go, how serious the trauma can be and how long-lasting it can be as a result of domestic abuse. That is the reason why the Government have brought this Bill; it is why it is widely welcomed around the House and the reason for the protections that are afforded to witnesses and parties in court proceedings.
I come to the noble Lord, Lord Wolfson, who frankly accepts the differences and parallels between us in respect of cross-examination in cases of special measures. I do not accept that a discretionary system in relation to the prohibition of cross-examination is an acceptable substitute. One of the principal reasons for this is that a party or witness has no assurance that there will be a prohibition in a discretionary case. She—or, in some cases, he—is totally reliant on judicial discretion having regard, as the Minister says, to all sorts of other factors, including previous convictions and all the circumstances of the case, in relation to knowing whether a prohibition of cross-examination will be extended. This means that such a witness or party is exposed to the risk that there will be direct cross- examination, which they may well be unable to face.
I am very grateful to the Minister for his undertaking that he will consider these amendments further; I know that that undertaking is given with every intention that he will do so. I and others remain completely open to discussing these amendments with him and refining them if necessary, but we hold the basic belief that vulnerable witnesses need protection from direct cross-examination on exactly the same basis in civil cases as is to be extended in family cases. Saying that, I beg leave to withdraw Amendment 124.
Baroness Burt of Solihull (LD)
My Lords, there has been a varied response to the Bill. What has come out of it is that nothing is as simple as it might appear in situations of the kind described. The somewhat harrowing example given by the noble Baroness, Lady Meacher, underlines that.
As we have heard, Amendments 130 and 130A seek to change the presumption that it is in the welfare of a child to have unsupervised contact when one parent has either a domestic abuse conviction or court proceedings against them. The noble and learned Baroness, Lady Butler-Sloss, told us that she does not like presumptions and that we need to consider all the circumstances—that has certainly come out of this afternoon’s debate.
As we know, the presumption of the courts is that it is in the welfare of the child for both parents to have access now, everything else being equal. However, when one parent is accused of abusing or has abused the other parent or the child, or they are subject to a Crown prosecution case, everything is most decidedly not equal. We have discussed enough times during the course of the Bill just how difficult and stressful a domestic abuse situation can be for a child, who can be used and abused as a pawn between warring partners. And it can get far, far worse than that.
Several noble Lords used statistics to back up this argument. Mine come from the charity Refuge, which, in partnership with a Sunday Mirror journalist, conducted an investigation which found that, between 2004 and 2019, 63 children were killed at the hands of a domestic abuse perpetrator who had contact with their children after being convicted of a serious criminal offence. Refuge reports that the actual figures of child harm are even higher, with many children dying from other causes, such as neglect. This is the danger of under- estimating the risk that perpetrators can pose to their children. It does not apply to all perpetrators, of course; many who have committed domestic abuse against their partners are different altogether with the children—a point another noble Lord made.
We should also consider how previous matters are taken into consideration. In particular, my colleague and noble friend Lord Marks gave an example of a previous situation in which domestic abuse took place, perhaps in a previous life. But domestic abuse still figures in that situation, so if an alleged perpetrator has a previous domestic abuse conviction, it would be better to be safe than sorry.
The noble Baroness, Lady Jones of Moulsecoomb, moved Amendment 130A, as an amendment to Amendment 130, which takes matters a little further to include fact-finding hearings in the family courts, which most commonly concern domestic abuse. In such hearings, it is for the person making the allegations to prove that they are true. The judge considers on the balance of probabilities whether the allegations are true or not. The presumption in Amendment 130 is therefore extended while the hearings take place. I think it is better that, where there is a previous conviction, even with another partner in a different situation, it is still far better to be safe than sorry.
I hope that the Minister will be minded to consider these amendments carefully and, if necessary, make changes to make them a little better on Report.
Lord Wolfson of Tredegar (Con)
My Lords, as the noble Lord, Lord Rosser, has explained, Amendment 130, formerly in the name of the noble Lord, Lord Ponsonby of Shulbrede, seeks to make it clear that the presumption that parental involvement furthers the child’s welfare cannot apply where there is evidence of domestic abuse. It also seeks to prohibit unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences or where there are ongoing criminal proceedings for domestic abuse.
Amendment 130A in the name of the noble Baroness, Lady Jones of Moulsecoomb, extends this. It seeks to prohibit unsupervised contact for a parent pending a fact-finding hearing in family proceedings or where domestic abuse is alleged or is proven—either in such a fact-finding hearing or as the result of a criminal conviction for a domestic abuse offence.
Before proceeding, I hope the Committee will forgive me if I make two overarching points. First—and I say this respectfully, given my short time in this House—the debate we have just had shows the value and importance of Committee stage. A number of contributors have listened to and considered the points that have been made and, on occasion, have changed their position. There is nothing wrong with that. If I have one regret—and again I say this respectfully—it is that our PR means that the value of these Committees is not as well understood outside this House as it is within it.
Secondly, in the last debate, the noble Lord, Lord Marks of Henley-on-Thames, made the point that what seems an arcane legal matter to lawyers—and perhaps to others in this Chamber—is improved by real-world experience and examples. In this debate, contributions from the noble Baroness, Lady Jones of Moulsecoomb, and the noble Baroness, Lady Meacher, have done just that. I agree with the noble Baroness, Lady Meacher, that anecdote is not evidence and that we must have research. I will come to this issue later in my remarks. Hearing the case of an eight year-old girl unlocking the front door to catch a bus to get to her father’s house is a powerful example. The image of a child saying his last words to a fireman in a smoke-filled attic will stay with me, and rightly so. It reminds me that, although we are debating words on paper, they have consequences in the real world. I am sure that many, if not all, noble Lords will feel the same.
I have a great deal of sympathy for the aims of these amendments, and I agree that more needs to be done to ensure that the courts take proper account of the impact that domestic abuse can have on children’s well-being and safety. To that extent, I agree with the noble Baroness, Lady Jones of Moulsecoomb, that we should seek to remove stress from children, in so far as we can. That was why, late last year, following the recommendations from the Expert Panel on Harm in the Family Courts, the Government launched a review on the presumption of parental involvement. Importantly, the panel did not call for immediate legislative change. Instead, it recommended a full review. They were right to do so. As the noble Lord, Lord Rosser, said and as noble Lords will be aware, this review is under way. As the noble Baroness, Lady Meacher, said, it will give us important data, research and a considered analysis.
The review will focus on the presumption—and its exception—and the impact on children’s welfare of the courts’ application of these provisions. It will allow us to build a stronger evidence base and ensure that any changes brought about as a result are rooted in a solid understanding of the effect of the presumption and the associated evidence on child welfare. It would therefore be premature to amend the legislation relating to the presumption, including Section 9 of the Children Act—as proposed in the amendment—before gaining the in-depth evidence from the review.
It is worth highlighting that the current legislation on the presumption makes it clear that it should be disapplied where there is risk of harm to the child. This means that the risk of harm from a parent perpetrator of domestic abuse should already be taken into account by the courts. As the noble Lord, Lord Marks of Henley-on-Thames, reminded us, Section 1 of the Children Act 1989 makes the child’s welfare paramount. It should also ensure that courts consider the risk of a child suffering harm, or further harm, when deciding on any aspect of the child’s upbringing.
Some noble Lords asked how contact between a child and a parent who has committed domestic abuse, or against whom it has been alleged, could ever be in the best interests of the child. The short answer is that this is not an easy question, but it is for the courts to decide in each case, taking into account all the evidence presented to them. The noble and learned Baroness, Lady Butler-Sloss, has vast experience in this area. She gave us an example of such a possible case. She also made an important point about judicial training, which we shall come to in a later group.
In addition to my general point that this issue is catered for in the current statutory architecture, there are two further problems to which the amendments would lead. First, domestic abuse is only one of many circumstances which may impact on a child’s well-being and safety. By expressly referring to it, these amendments could be seen to give domestic abuse prominence over other valid considerations which the court should take into account in deciding whether such an order would be in the best interests of the child—for example, other sexual or violent offending, or a history of or allegations of child abuse. I say this without downplaying in any way the importance and effect of domestic abuse.
Secondly, as a number of contributors have said, the second part of the amendment would lead to an automatic ban. The court could not exercise discretion. If we legislate to create automatic bans on a particular form of contact, there may be concerns that we are not allowing courts to take sufficient account of whether there are risks to the child in the particular circumstances of the case. Risks and rights must be weighed carefully, allowing courts to assess each case on its merits. The noble Lord, Lord Marks, gave an example where, on the facts of the case, a court might want to permit contact.
Other noble Lords, who are not lawyers, have also contributed to this debate. My noble friend Lord Randall of Uxbridge summarised it very well—so much so that he led the noble Lord, Lord Rooker, to tear up his speech. This must be a rare, if not unique, occurrence. The noble Baroness, Lady Meacher, said it was “likely” that the court would reach such a conclusion. This is the point I am making: it may be likely, but we should not force the court to do so. We should not remove the court’s discretion. Ultimately, the court should make the decision, based on all the facts of the case. Furthermore, it is not clear from the terms of the amendment whether such bans, if they prevent unsupervised contact following a conviction or finding of fact, would or should be capable of being lifted or modified if the risks in an individual case materially change. I respectfully agree with my noble friend Lady Gardner of Parkes when she said that she was not persuaded that the amendment was necessary, and that it might have unintended consequences.
I also agree with the point made by the noble Baroness, Lady Burt of Solihull: that nothing is as simple as it first appears in this area of the law. There are risks on all sides in this area, so to speak. There are risks of contact and, as my noble friend Lady Altmann reminded us, there are risks in preventing contact as well. I therefore suggest to the Committee that the approach in the current legislation, which was identified and explained by the noble and learned Baroness, Lady Butler-Sloss, with, if I may respectfully say so, her customary clarity, is the correct one.
Lord Wolfson of Tredegar (Con)
My Lords, I am very grateful to my noble friend Lady Bertin and the noble Lord, Lord Rosser, who have spoken to the amendments tabled by the noble Lord, Lord Ponsonby. The amendments relate, as has been said, to a number of different aspects of the family courts. I hope it will be convenient for the Committee if I take each amendment in turn.
I turn first to Amendment 131, tabled by my noble friend Lady Bertin, which, as she says, is a probing amendment. It recognises the crucial role of refuges in supporting victims of domestic abuse and their children. I must thank my noble friend for her time in being willing to discuss with me this amendment, and indeed others.
The amendment raises two important issues. I will first address that of the disclosure of the residential addresses of refuges. Existing legislation and family court procedural rules allow parties to apply to withhold their address and that of their children from other parties. There is therefore no requirement for those engaged in family court proceedings to disclose their address. During family court proceedings, when adequate information about the location of a child is not known to the court, the court can order any person who may have relevant information to disclose it. In those circumstances, details of the child’s address and who they are living with are disclosed only to the court, not the other parties, in the first instance. The court then determines how that information should be used. Where there are allegations of domestic abuse, the court can and does hold that information as confidential. The noble Lord, Lord Rooker, said that this was of critical importance and the noble Lord, Lord Marks, said it was essential, and I do not dissent from that.
Subsection (3) of the proposed new clause would prevent the service of a court order at a refuge’s residential address. I fully appreciate that victims living in a refuge are fearful for their safety, and that receiving or witnessing the service of an order at a refuge could be very distressing. In that context, I take on board the point made by the noble Baroness, Lady Hamwee, that one must bear in mind the position of other occupants of the refuge as well. In that context, therefore, the two cases illustrated by my noble friend Lady Bertin are concerning.
However, I am clear that there are contexts in which the court may need to serve an order on a party at the refuge they are staying in, and where not doing so may pose unintended risks to the safety of children involved in family law proceedings. For example, there may be a concern that a child might imminently be taken out of the jurisdiction. The welfare of the child is of key concern in family court proceedings. Where the courts have urgent welfare considerations, they must be able to take swift action to locate the child. We must not risk impeding the court’s ability to act immediately to safeguard a child by limiting the addresses at which an order can be served.
As my noble friend has outlined, the courts may already direct bespoke service arrangements based on the facts of a case. The Family Procedure Rules 2010 allow for court orders to be served at alternative addresses, such as the refuge office address, if that is suitable. Of course, as the noble Baroness, Lady Hamwee, and the noble Lord, Lord Marks, pointed out, it may not always be suitable. As such, I am confident that the important outcomes sought by my noble friend are already provided for in existing legislation and court procedure.
I should add in this context that the Family Procedure Rules, as I have said, allow for parties to apply for their contact details to be kept confidential from other parties. But even where such an application has been made, parties retain responsibility for ensuring that any form or document they submit to the court does not contain the information they wish to keep private. We have to consider in this context documents received from other people, such as medical reports or financial statements. It is difficult, if not impossible, for court staff to check all documents submitted to the court for any unintentional—I emphasise unintentional—disclosure of contact details.
Therefore, given that background, I submit that the proposed clause is unnecessary and, perhaps more importantly, would bring with it some obviously unintended, but very real, potential risks to some of our most vulnerable children. Existing legislation and rules allow for the protections sought through this amendment. But we recognise that, as we have been told in a number of cases this evening, concerns have been raised in individual cases before the courts. The Government are committed to protecting vulnerable victims of domestic abuse, and of course this extends to those residing in refuges in particular. We actively work with members of the judiciary, who are committed to exploring whether and how existing procedures and guidance could be strengthened to ensure that those residing in refuges are protected.
Before I turn to the next amendment, I once again thank my noble friend Lady Bertin for raising this issue, both by way of this amendment and in her discussions with me on this matter. It is clear that, across the Committee, we share the same aim—the only real question is how we best achieve it.
As the noble Lord, Lord Rosser, has explained, Amendment 132 seeks to place a duty on courts to share information relating to victims or those at risk of domestic abuse, and imposes an obligation on the family court to consider making a barring order where information shared by another court identifies that court proceedings may be being used to continue abusive behaviour towards the victim.
I have a great deal of sympathy for the aims of this amendment, and I agree that better information sharing, in particular between the family and criminal courts, on the issue of domestic abuse is important. The noble Lord, Lord Rosser, was kind enough to acknowledge that there were some drafting issues with this amendment. Indeed, there are such issues, and therefore I hope the Committee will find it helpful if I reply on the questions of principle and not on points of drafting.
The Government are actively considering what more can be done to improve the sharing of information between civil and criminal courts dealing with family proceedings, including through the development of integrated domestic abuse courts, which will be piloted later this year and seek to progress family and criminal cases in parallel. I hope that goes some way to meeting the concerns expressed this evening by my noble friend Lady Newlove.
In particular, I draw to the Committee’s attention the recent amendment to the Criminal Procedure Rules, which comes into effect on 5 April. This will impose a duty on parties to criminal proceedings to alert the criminal court to any related family proceedings, and it encourages the exchange of relevant information with a court dealing with those proceedings. We consider the issue of information sharing between the jurisdictions to be more appropriately addressed through procedural rules, rather than in primary legislation, because the court processes are somewhat technical in nature, I am afraid—and, of course, one has to bear in mind the often technical nature of management information systems.
Alternatively, there is also the issue here of judicial guidance, where the court has a discretion over what information should be shared and with whom. I assure my noble friend Lady Verma that, in that context, the position particularly of women from minority communities, who may be more affected by the sometimes siloing nature of our court processes, is kept very much in mind. How to access support and manoeuvre one’s way through the system once one is in it is of central importance in this context.
I move on to the related but separate issue of the use of Section 91(14) orders under the Children Act 1989, often referred to as “barring” orders. The amendment proposes that the family courts are placed under a duty to consider such an order where it appears, based on information shared by another court, that cases are being brought by a perpetrator of abuse as a means to carry on their abusive behaviour.
The noble Lord is right to raise the issue of perpetrators using the family courts as a means to continue their abuse, highlighted in the report by the Ministry of Justice’s expert panel on harm in the family courts, published in June last year. The sad fact is that domestic abuse perpetrators do sometimes use the courts as a way of perpetrating their abuse, often bringing their victims back to the courts repeatedly, which, obviously, can be retraumatising. In our response to the report, the Government committed to exploring how we could further clarify the availability of Section 91(14) orders in the family courts to further protect victims of domestic abuse.
The amendment proposed by the noble Lord would place a duty on courts to consider making a Section 91(14) order, but only where relevant information has been shared by another court. We are determined that courts should never be used as a forum to perpetrate further abuse. In that context, I am clear that further clarification is indeed required to the law on barring orders to ensure that the use of Section 91(14) is available to parents and children to protect them where further proceedings would risk causing them harm or further abuse. The evidence suggests that these orders are currently underused in circumstances involving domestic abuse and that they could be an effective tool to further protect victims and survivors.
In answer to the question put to me by the noble Lord, Lord Rosser, and my noble friend Lady Newlove as to when we will come back with further thoughts on this matter, the short answer is: before Report. Therefore, I thank the noble Lord for drawing attention to this matter, which we are actively considering. We are considering what more can be done to ensure the effective use of Section 91(14) orders in domestic abuse cases. As I have said, we will consider this issue carefully ahead of the next stage of the Bill.
I turn now to Amendment 133, on training for judiciary and other professionals in the family court. The noble Lord, Lord Marks, said that this amendment was the most important of the group. I am tempted to agree, though that is not in any way to undermine the importance of any other amendment. To use a word that I think was used by the noble and learned Baroness, Lady Butler-Sloss, training is critical in this area.
Lord Wolfson of Tredegar (Con)
My Lords, first and foremost, I offer my sincere thanks to my noble friend Lady Newlove, the noble Baronesses, Lady Meacher and Lady Wilcox, and the right reverend Prelate the Bishop of London for the clear case they have submitted today before the Committee on why the offence of non-fatal strangulation is necessary. All the matters that we have discussed today are important, but this may well be the most important. In that context, I hope noble Lords will forgive me if I do not acknowledge each of the contributions individually, both because of time and because, if I may say, many of the contributions were to the same effect. I will seek to respond to the substantive points made without always a personal reference; I hope I will be forgiven for that.
I must, however, make a personal reference to my noble friend Lady Newlove. I join with others in paying sincere tribute to her for the way in which she has promoted this issue. She explained how non-fatal strangulation can be terrifying and the effects long lasting. As the noble Baroness, Lady Crawley, said, it is often used as a method of control and, to adopt the phraseology of the noble Baroness, Lady Wilcox of Newport, there is a real and visceral effect. I also mention in particular the personal and very moving speech by my noble friend Lady Bertin, with her mention of some circumstances very close to her.
As noble Lords will have noted, there are two amendments on non-fatal strangulation before the Committee. Amendment 137 would have general application: it would apply to all cases where non-fatal strangulation or suffocation has occurred, including cases where non-fatal strangulation or suffocation featured as a factor during a domestic abuse incident. By contrast, Amendment 138 creates the same offence, but the application is limited to cases of non-fatal strangulation or suffocation where this occurs in a domestic abuse context. The maximum penalty for the new offence in each proposed clause is the same—that is, on conviction or indictment, seven years’ imprisonment or a fine, or both.
I am aware that the proposal to create a stand-alone non-fatal strangulation offence stems from campaigns conducted last year by the Centre for Women’s Justice and We Can’t Consent to This. Specific clauses to create a new offence were tabled in another place, although they were different to those before us today. Those proposed clauses were, however, withdrawn on Report in the other place and were not put to a vote.
Before setting out the Government’s position on this matter, let me start by saying that we entirely sympathise with and fully understand the strength of feeling. We unequivocally support the intention behind these amendments and have given a firm commitment to legislate for a new offence of non-fatal strangulation. I hope that, as the right reverend Prelate the Bishop of London explained, this will indeed lead to a reduction in the appalling details that we may have to hear in the future. In answer to my noble friend Lady Redfern, that would be a stand-alone offence.
Several contributors have mentioned the position in other jurisdictions. It is right to say that Australia, Canada, New Zealand and several states in the USA have created a non-fatal strangulation offence. Those offences have been cited by the two groups that I mentioned as offering a basis on which any new offence in England and Wales could be modelled. Those stand-alone offences, however, differ across those jurisdictions. Some apply widely but are dependent on certain factors being met, such as the victim not giving consent, or the act causing them to lose consciousness. Other variations of the offences are narrower in scope, in that they are restricted to instances of strangulation that occur in a domestic abuse context. Those offences are not without criticism. Some people claim that they are too broad and can capture behaviour that is not intended to harm and should not be criminalised.
It is also worth pointing out that the offences in those jurisdictions have not been placed on the statute book without significant prior review to assess their impacts on other areas of law. In addition, most of those legislative measures tend to be accompanied by a package of non-legislative measures—for example, programmes for seeking to change perpetrator behaviour, toolkits for the police to assist in identifying non-fatal strangulation cases and guidance for agencies to support victims of non-fatal strangulation.
I also draw the attention of the Committee to the current law and how non-fatal strangulation is currently captured. Such behaviour can be captured, depending on the seriousness of the crime, under offences ranging from common assault and battery to attempted murder. However, in addition to those offences, there are others that can cover non-fatal strangulation and suffocation. For example, it can be part of a pattern of behaviour amounting to an offence of controlling or coercive behaviour under Section 76 of the Serious Crime Act 2015. Additionally, a specific offence under Section 21 of the Offences Against the Person Act 1861 makes it an offence to attempt to choke, suffocate or strangle any person, or to choke, suffocate or strangle a person in an attempt to render that person insensible, unconscious or incapable of resistance. That offence also requires there to be an intention by the perpetrator to commit another indictable offence.
It is that range of offences that initially led the Government to believe that the law was sufficient in covering the diverse circumstances and levels of seriousness that may be involved in non-fatal strangulation cases. As the noble Baroness, Lady Bennett of Manor Castle, set out, one would not want to create a stand-alone offence if it were not necessary to do so. However, we have now been persuaded that this may not be the case.
We are also aware of claims of evidential difficulties in prosecuting any allegation of strangulation, particularly if there is no—or insufficient—evidence of injury, not even reddening or minor bruising to the skin. Further, as the noble Lord, Lord Marks, pointed out in relation to the Section 21 offence, there is the additional requirement for evidence that another indictable offence had been intended, and that may create difficulties.
Our concern had been that the same difficulties would apply to any new offence, as there would still be a requirement for proof beyond reasonable doubt that a serious offence was intended. We have also been concerned about the risks associated with creating a new offence and that it could limit the circumstances covered and create additional evidential burdens when compared with existing offences.
More importantly, as was pointed out by a number of contributors, non-fatal strangulation is relevant to and found in, but plainly not limited to, domestic abuse circumstances. Although I understand and accept that it is more likely to occur in a domestic abuse setting, it is nevertheless the Government’s position to ensure that if we create a new criminal offence, it applies equally to all parts of society, does not create any loopholes, or conflict or impact on other parts of the legal framework.
I turn now to the detail of the amendments: as drafted, both are deficient and could not be accepted by the Government. Importantly, both amendments seek to create a new offence to criminalise conduct that is already unlawful. In addition, the proposed maximum penalty of seven years’ imprisonment for conviction or indictment is problematic—the level of the penalty needs careful consideration. Our main concern here is that seven years exceeds the maximum penalty for serious offences such as GBH, when the injury caused by non-fatal strangulation may be significantly less than the injuries that amount to GBH.
There are other significant problems. The amendments do not deal with the element of consent, do not consider any exemptions and do not provide explanation of how they would work with, and alongside, the current legal framework. The amendments are also limited to a person’s breathing, or blood circulation, or both, being impeded manually—by hand or through the use of an aid. We are, however, aware of offences of this nature where a person’s breath or blood circulation has been impeded in other ways, such as the use of other body parts—a knee placed hard upon a neck, for example—or, simply, using bodyweight.
As noble Lords will have seen in the media over the weekend of 9-10 January, the Government have now committed to creating a new offence of non-fatal strangulation, for which the noble Baroness, Lady Meacher, characteristically generously, was thanking Ministers. It will be important, however, to ensure that any new offence is proportionate—I hear the question from the noble Baroness, Lady Burt, and I will come back to it—allows for more prosecutions to be brought and for convictions to be secured. There is a number of legal and technical issues to be addressed for this to be achieved that are not addressed by the amendments as currently tabled.
The noble Lord, Lord Anderson of Ipswich, as has been said, rightly pointed to some of these issues on Second Reading, and we should not underestimate the challenges of getting this right. I am grateful to the noble Lord, Lord Marks, for passing on the later comments from the noble Lord, Lord Anderson. I can say, particularly given his reference to Professor David Ormerod, that officials have already taken up the offer of meeting the learned professor. They have had initial discussions with him and will continue to have such discussions, which I am sure will be extremely useful.
As I am sure noble Lords will agree, it is important for any new offence to work in practice and not pose difficulties for other parts of the law. In creating any new offence of non-fatal strangulation, the Government will have to consider several factors. Let me set out just four. First, the Government will have to consider whether the behaviour should be captured through a single offence or through two offences to capture lower-level and more serious cases of non-fatal strangulation. Secondly, we have to define the term “strangulation and suffocation,” and consider whether any terminology about serious harm requires definition. Thirdly, although I heard what the noble Lord, Lord Marks, said, we have to consider the issue of consent—when consent becomes invalid is a notoriously thorny legal issue. Fourthly, we have to consider the application of public policy exemptions, such as for some sports or medical treatments.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, we on these Benches fully support Amendments 139, 140 and 145, in the names of my noble friend Lady Kennedy of The Shaws and others. The issues addressed in these amendments have been raised in the other place by my honourable friend the Member for Birmingham, Yardley, Jess Phillips, and others during the Bill’s consideration there.
The amendments, as noble Lords have heard, are modelled on existing law and should not cause the Government any trouble whatsoever; I look forward to the Minister’s response. My noble friend Lady Kennedy explained the problems women face when they have killed a partner, having been the victim of abuse for years and years and then find themselves in the dock. The amendments seek to address that and reflect the realities of domestic abuse.
Everybody has been very complimentary about the Bill—it is a very good Bill, long overdue and we wish it success—but to become really effective legislation, it must incorporate these amendments or government amendments with the same intent. It is reasonable to afford the victims of domestic abuse who act in self-defence, often in their own homes, reasonable protection. They are compelled to defend themselves, having suffered years of abuse. As my noble friend Lady Kennedy reminded us—we have heard it many times before—on average, two women a week are killed by their partner or former partner. That is an horrific figure.
Amendment 139 would provide domestic abuse survivors with the same legal protection as householders have in cases of self-defence. Members have referred to such cases. Amendments 140 and 145 are modelled on Section 45 of the Modern Slavery Act 2015 and would give victims of abuse a statutory defence where they have been compelled to offend as a result of experiences of domestic abuse.
We have heard excellent speeches in this short debate from all noble Lords, particularly from the right reverend Prelate the Bishop of Gloucester. I endorse all the comments of noble Lords. My noble friend Lord Bradley, in particular, made a compelling speech. He raised the issue of mental health, its effect on women prisoners and the need for proper context to be taken into account when deciding to prosecute cases. I look forward to the response from the noble Lord, Lord Wolfson. If he cannot accept these amendments, I hope he will tell the Committee that he understands the issue and will go away and reflect on it, and maybe come back on Report.
Lord Wolfson of Tredegar (Con)
My Lords, I first offer my sincere thanks and appreciation to the noble Baroness, Lady Kennedy of The Shaws, for outlining the case for these amendments. In response to her early comments, I can assure her that I have indeed listened to her and benefited from discussing these matters with her, both outside the Chamber in advance of today’s proceedings and in listening to her most diligently this evening. She has considerable experience in this area of the law.
In effect, these amendments seek to create two new defences: first, a defence of reasonable use of force by victims of domestic abuse who, in self-defence, react to violence from an abusive partner; and, secondly, a new statutory defence for victims of domestic abuse who commit a criminal offence. While in tonight’s debate the noble Baroness, Lady Kennedy, focused on the first of those defences, I have had the benefit of discussing both issues with her. I have read briefings on both and therefore hope that my reply will meet the points she has made inside and outside the Chamber. None the less, I will take each amendment in turn, because they raise different issues.
Amendment 139 is on the reasonable use of force. The Government are aware that what is being sought here is an extension to the current provisions to enable victims of domestic abuse to have the same level of protection as those acting in response to an intruder in the home. I am aware that the proposed new clause stems from a campaign by the Prison Reform Trust seeking to clarify the degree of force that is reasonable under the common law of self-defence where the defendant is a survivor of domestic abuse. It has been suggested by the Prison Reform Trust that the common-law defences are unsuitable in the context of domestic abuse.
In that context, as the noble Baronesses, Lady Kennedy and Lady Hamwee, explained, the amendment seeks to build on existing provisions in Section 76 of the Criminal Justice and Immigration Act 2008, with the intention that, as with householders, the degree of force used by the defendant would have to be “grossly disproportionate” rather than simply “disproportionate” by reference to the circumstances that the victim believed them to be, and to take into account other factors set out within Section 76. It has been suggested that this would fill a gap in the law.
Let me start by saying what I hope does not need to be said, given the terms of the Bill and what has been said in Committee on this and previous occasions. The Government recognise the harm suffered by victims of domestic abuse. Several defences are potentially available in law to those who commit offences in circumstances connected with their involvement in an abusive relationship, including the full defence of self-defence. In addition, the broad definition of domestic abuse in the Bill should assist, I hope, with identifying and clarifying the wide-ranging and pernicious nature of domestic abuse, and alerting all those involved in the criminal justice system to it.
It is worth mentioning at this point that the courts—by which I mean the judges—have developed the common-law defences and their relationship to domestic abuse. We should perhaps pay tribute to the judges for having recognised the nature and impact of coercive and controlling behaviour in the application of the criminal law and in sentencing, as well as in family and civil law. It is sometimes the case that the courts are quicker, more nuanced and more flexible in developing the common law than Parliament can ever be in introducing, by their very nature, more rigid and narrowly drawn statutory provisions. For fans of the common law, of which club I am an enthusiastic member, that is an important point to bear in mind.
There is also a need to balance recognition of the abuse suffered and its impact on the victim with the need to ensure that, wherever possible, people do not resort to criminal behaviour. The Government believe that the balance is currently reflected in the law, which continues to evolve and which aims to strike the right balance between those factors.
Baroness Bennett of Manor Castle (GP) [V]
My Lords, I thank the House for the opportunity to ask this question, which applies to all these amendments but particularly to Amendment 139, to which my noble friend Lady Jones of Moulsecoomb is a signatory. She was unfortunately unable to take part in this debate.
My noble friend would have referred to the fact that the Covert Human Intelligence Sources (Criminal Conduct) Bill allows blanket legal protections for undercover police and informants. The forthcoming overseas operations Bill creates similar new protections against prosecution for military personnel acting overseas. The Government have fought intensely for these protections against prosecution for the police and the military; they have fought against many attempts in your Lordships’ House to reduce or check these protections. In that context, how would the Minister explain—having granted such broad protections to the police and military, even in cases of fundamental wrongdoing—why the Government should refuse what are comparatively far more limited legal defences for survivors of domestic abuse, particularly with such well thought-out and well drafted amendments by the noble Baroness, Lady Kennedy of The Shaws?
Lord Wolfson of Tredegar (Con)
I am grateful to the noble Baroness, Lady Bennett of Manor Castle, for that question. I do not wish to be thought flippant in any way, but the short answer is that the situations are different, and therefore you have different considerations and different legal results. However, if she will permit me, given that I am not personally acquainted with that sort of detail—certainly of the overseas operations Bill—to respond to her this evening, I will add to my reply in writing.
Lord Paddick (LD) [V]
My Lords, I am very grateful to the Minister. I have two questions which rather puzzle me. First, he talked at length about praising judges for how they can quickly and flexibly adapt the common law of self-defence to new cases and how beneficial it is for it to be dealt with in that way, rather than with rigid primary legislation. Can he therefore explain why Section 76 of the Criminal Justice and Immigration Act 2008 was thought necessary?
Secondly, the Minister talked about the option to retreat in domestic abuse cases. Referring to the two scenarios that I spoke about from personal experience, I certainly had the option to escape out of the flat—luckily it was a ground-floor flat—when somebody was trying to break the front door down in the burglar scenario, but when my abusive partner had me up against the kitchen wall, I had very limited options to retreat. I cannot see how the option to retreat is more valid in the burglar situation than it is in the domestic abuse situation. Perhaps the Minister can help me.
Lord Wolfson of Tredegar (Con)
I am grateful to the noble Lord, Lord Paddick, for those questions. First, Section 76 of the Criminal Justice and Immigration Act dealt with a specific circumstance, whereby Parliament considered that that instance ought to be reflected by way of a specific statutory defence. The question for this evening is whether there is a suitable read-across into the matters we are discussing. For the reasons I sought to explain, I suggest that there is not.
Secondly, as to the option to retreat, I hope I made it clear that I was not saying that there is always an option to retreat in domestic abuse cases; I was making the point that there is generally very little option to retreat in the householder case. Again, that is an instance where you cannot simply read across to the domestic abuse case. I hope the noble Lord is content with those responses, but I am very happy if he wants to take those points up with me hereafter so that we can discuss them.
Baroness Hamwee (LD) [V]
My Lords, I understand the points that the Minister has made about the common law developing—that is inherent in it—but, like my noble friend, I want to pursue the point about flexibility. If the courts were that flexible—I suppose this is a rhetorical question—would we be moving and speaking to these amendments?
The proposed new clause in Amendment 140 is modelled on—but, I accept, does not completely repeat—the provisions of Section 45 of the Modern Slavery Act, referring to “the person’s circumstances”. As far as I am aware, I have not received the briefing from the Prison Reform Trust, but does the Minister accept that the remarks of the right reverend Prelate and the noble Lord, Lord Bradley, go very much to the point about a person’s circumstances? The Minister referred to concern about misuse. At Second Reading, I think I made the point that if there is misuse we should be looking at the misuse, not at not applying a defence which should be a good defence in general.
Finally—again, I suppose this is rhetorical—with regard to the balance, and we are for ever searching for the right balance, does the Minister agree that, given the fast-developing understanding of domestic abuse and its impact, civil society will likely pretty quickly, in parallel, be developing its ideas about what is the right balance?
Lord Wolfson of Tredegar (Con)
I am grateful to the noble Baroness, Lady Hamwee, for those various questions. On the issue of the person’s circumstances, I hope I set that position out in my reply. Perhaps it is the sort of point I could set out to her in writing in a couple of paragraphs, if she would not mind.
We are concerned when defences may be being misused; I made it clear that there are some concerns with the victims of slavery defence in that context. On the last point, which I think the noble Baroness accepted was somewhat rhetorical, she is certainly right that we always seek a balance. The point she makes that the law must keep up with the expectations of civil society is a profound one; it is, indeed, one of the big advantages of the common law. I am sure, therefore, that the issues raised by these amendments will continue to be discussed. The question before the Committee this evening is whether the legislature should provide for explicit statutory defences in these terms. For the reasons I have sought to set out, in my opinion, it should not.
Baroness Kennedy of The Shaws (Lab) [V]
My Lords, I should tell the Committee that I turned a page too soon in my opening address on these amendments. I did not have the chance to really lay out the second of the statutory defences I am promoting, in Amendment 140.
I regret that I used the term “read-across,” because there are always lawyers who will use language literally. Of course, I did not mean it is an absolute read-across to talk about a householder as distinct from a victim of abuse, but the gravamen is the same. The core of it is about somebody put in fear in the place they want to feel safe: their home. I cannot think of any domestic homicide where I have represented a woman who has killed her partner or ex-partner that did not happen within a household—a place where she was hoping to feel safe but did not, and where experience had taught her to feel fear and terror.
I am afraid I have to say to the Minister that some time, I will take him by the hand into a women’s prison and have him sit down and listen to the accounts of women, by asking them to look him in the eye and tell him their stories. They are so often there because of childhood abuse, having been brought up in abusive households and with direct experience of partner abuse. We could almost empty our prisons without them having women who are there because of their mental health. They are not mentally ill for no reason; almost invariably, it is because of the kind of abuse we have heard about in the debates on this Bill.
I say this respectfully, but the Government are again falling into the trap of saying there are nice victims and bad victims, or of saying: “We will change the law for the good, conforming victims but not for the victims who somehow transgress”. These are the victims who, in the end, defend themselves because they are so in terror for their lives, who are so in fear of a partner that they commit a crime—carrying the drugs from A to B or hiding them in their sock drawer, for example. All I am saying is that there is a double standard in this debate: as soon as you move to that which involves crime and a woman, or anybody who is abused, is in the dock, then suddenly your compassion for the issue of domestic abuse somehow dissipates.
I am very concerned that there is not enough real consideration of the toll of abuse: we are moving into the field where somebody ends up transgressing the law but it is really because of what they are experiencing. If a psychiatrist were to speak to this Committee, they would tell noble Lords that when somebody has experienced fear for their life—we have heard about it in relation to strangulation—and thought “I am going to die at the hands of this person”, and then suddenly smells that level of fear again, in the air, in those circumstances they might take a knife and defend themselves, or take a heavy weapon and hit somebody fatally on the head. The test of “reasonableness” or whether the force was “disproportionate” has to be read in the context. That is why I am saying that it would have to be “grossly disproportionate” for it not to afford a defence of self-defence for somebody who has experienced long-term and serious abuse.
What we are seeing here are the very double standards that are so often experienced by victims of abuse and by women. It goes back to the nature of law and its patriarchal roots. It is about saying that, yes, women who are abused deserve all our compassion but if they overstep the mark, they do not.
Our prisons are full of women who have had these experiences—indeed, I have acted for women who have ended up killing a partner. They do not do it because they suddenly want to wreak vengeance; they do it in exactly the circumstances of the householder who feels in absolute terror for their life.
The failure to make those links and to understand this may be because one has not spent enough time sitting in a cell with people who are coming up for trial. I can tell the Committee that that is the circumstance, and if you can afford, because the Daily Mail demands it of you, to lower the standard of reasonableness and be more flexible for a householder—as indeed you should—then that kind of flexibility should be available to those who have been experiencing long-term abuse.
I ask that the noble Lord look again at the double standard that is operating here. It is partly, of course, because Governments always want to play the law-and-order card and do not want to be seen to be soft on people who commit crime. But very many of the women who end up in prison did what they did because they were under the coercion and control of somebody else, and were absolutely in fear of that person. I really regret the response I have received from my friend, the noble Lord. I ask him to take his great lawyer’s skills and go back to the drawing board again, because he is missing something very important here, which is about justice for women. I beg leave to withdraw the amendment, with great regret, and I am really disappointed in the ministerial response.