Victims and Prisoners Bill
Baroness Bertin ExcerptsTuesday 23rd April 2024
(7 months ago)
Lords ChamberRead Full debate Victims and Prisoners Act 2024 View all Victims and Prisoners Act 2024 Debates Read Hansard Text Watch Debate Read Debate Ministerial Extracts Amendment Paper: HL Bill 57-II(Rev)(a) Amendments for Report (Supplementary to the Revised Marshalled List) - (23 Apr 2024)
Baroness Bertin (Con)
My Lords, I rise to speak to the amendments in my name: Amendments 87, 88, 89 and 94. I thank my noble and learned friend Lord Bellamy for his time and for the Government’s thought on these amendments, which, as he rightly pointed out, concern the disclosure of therapy notes. I am sure he probably questioned his life choices when he saw me and other colleagues popping into his Zoom calls quite a bit over the Easter Recess. I am absolutely delighted that he has indicated that the Government will accept these amendments. It has been a long, hard- fought campaign by a formidable team of campaigners from Rape Crisis, the Centre for Women’s Justice, the End Violence Against Women Coalition and Rights of Women. I thank the Government for listening.
I believe this will make a material difference to the confidence and well-being of victims of rape, and I hope that over time it will also help reduce the attrition rate in the justice system, which, at 62%, we can all agree is far too high. These amendments are a proportionate compromise. Again, I want to praise the Government. They thought long and hard about getting these amendments right. They do not jeopardise the right to a fair trial, which is crucial, but they correct a significant wrong when it comes to routine intrusion into victims’ therapy notes.
I will be very brief because we are on Report, but just to set the context of why these amendments are needed, when a rape victim reports the offence to the police, they are often put in the impossible position of being forced to choose between pursuing justice or seeking counselling due to the likelihood of their private records and counselling notes being accessed by the police. We know that more than one-third of rape cases had those notes accessed. Very often, victims choose not to seek counselling and those who continue with therapy ahead of a trial are often told that they must not talk about what happened to them. How ridiculous is that? You need to talk about the rape, the thing that happened to you, in order to get over it. Both scenarios leave many victims without vital support at a time when it is needed most. The reality is that the notes that counsellors take in those sessions are to inform their next session. It is not an evidence-collecting process, so very often those notes are not very useful and are often thrown out of court if they get into a courtroom situation. They are not useful, but they are incredibly damaging. Also, justice and proper support should never cancel each other out.
I am very grateful that my noble and learned friend Lord Bellamy has set out the detail, so I will not repeat it in a too-drawn-out way. Essentially, the important point of this amendment is that it raises the threshold at which the police and other bodies are able to request counselling notes during an investigation. In order to request such notes, the police will have to show that they have been able to rebut the presumption that counselling records are not necessary and proportionate to a law enforcement purpose and that they consider that the counselling records are likely to be of “substantial probative value”, which is a higher threshold than “necessary and proportionate”, which we have at the moment. To ensure that this new threshold of substantial probative value is properly understood, because we know that, with 43 police forces around the country, it could easily be misunderstood or not adhered to, the Government should provide clear guidance in the code of practice, working with other relevant partners such as the CPS, the National Police Chiefs’ Council and the Attorney-General.
Finally, a very important part of these amendments is requiring the Secretary of State to publish a review of how these measures are working and being adhered to three years after the provisions come into force. We all know that post-legislative scrutiny of these difficult areas of law and of how the measures are working in practice is crucial. Taken together, the new threshold and the guidance will enhance the work of transformative programs such Operation Soteria and are another step in the right direction of dismantling the criminal justice system’s focus on victims’ credibility rather than the actions of the suspect.
Baroness Bertin
“(3A) A counselling information request may be made only if the authorised person has reason to believe that the information sought is likely to have substantial probative value to a reasonable line of enquiry which is being pursued, or is to be pursued, by the authorised person or another authorised person.(3B) For the purposes of subsection (3A), a “counselling information request” means a victim information request to a person who provides counselling services of a description specified in regulations made by the Secretary of State by statutory instrument.”Member's explanatory statement
This amendment requires an authorised person to believe that the information sought by a counselling information request is likely to have substantial probative value.
Baroness Bertin
“(10) A statutory instrument containing regulations under subsection (3B) is subject to annulment in pursuance of a resolution of either House of Parliament.”Member's explanatory statement
This amendment provides for regulations defining the counselling services in relation to which my amendment of Clause 24, page 22, line 38 applies to be subject to the negative resolution procedure.
Baroness Bertin
“(1A) The code must in particular—(a) provide that an authorised person must, when considering whether they are satisfied as required by paragraph (c) of section 44A(3) in relation to a counselling information request, start from the presumption that the request is not necessary and proportionate to achieve a purpose in that paragraph, and(b) set out the steps that must be taken by an authorised person when deciding whether that presumption is rebutted.(1B) For the purposes of subsection (1A), a “counselling information request” has the meaning given by section 44A(3B).”Member's explanatory statement
This amendment requires the code of practice issued under new section 44D of the Police, Crime, Sentencing and Courts Act 2022 to provide for authorised persons to presume that counselling information requests are not necessary and proportionate and to take certain steps when considering making such requests.
Non-fatal Strangulation and Suffocation
Baroness Bertin Excerpts(3 years, 4 months ago)
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Lord Wolfson of Tredegar (Con)
My Lords, I agree that an awareness campaign is important. Of course, having the offence itself will raise awareness. Perhaps I may make a topical point. We know that domestic abuse goes up when there are big football matches and, while we all want England to win, we must remember those for whom “It’s coming home” is a threat often accompanied by alcohol and violence.
Baroness Bertin (Con) [V]
My Lords, I am always shocked that many police forces still do not have specialist domestic abuse units. Does my noble friend the Minister agree that now we have offences such as non-fatal strangulation, the provision of those units and specialist training for front-line officers are even more crucial? What steps are the Government taking to ascertain the proportion of domestic abuse cases that are dealt with by specialist teams, in order to improve the situation?
Lord Wolfson of Tredegar (Con)
My noble friend is absolutely right. We need important work by the police in this area. The College of Policing has issued guidance to all its forces to ensure that domestic abuse receives proper priority, and 29 forces have received that training as of June 2021. A recent evaluation showed a 41% increase in arrests for controlling or coercive behaviour.
Child Trust Funds: People with a Learning Disability
Baroness Bertin Excerpts(3 years, 5 months ago)
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Lord Wolfson of Tredegar (Con)
The noble Lord puts his finger on a problem: the Law Commission in 1995 highlighted the need for a small payments procedure, but that was not picked up in Parliament in the Mental Capacity Act 2005. Here we are in 2021, trying to resolve a long-standing legal issue. We need to amend the legislation—otherwise, the Mental Capacity Act is a legal block to people’s ability to obtain funds.
Baroness Bertin (Con) [V]
Could my noble friend the Minister help us to understand how many individuals with cognitive impairments could be supported to grant power of attorney to their parents or carers to manage these moneys in the interim? Can we also have reassurance that never again will policies such as this be introduced without any consideration whatever being given to how they might impact those with learning disabilities?
Lord Wolfson of Tredegar (Con)
My Lords, I will pick up the noble Baroness’s second point first. As the noble Lord, Lord Blunkett, explained on a previous occasion, regrettably, no thought was given when these funds were set up to people who could not access them because of mental incapacity. That is why we are having to deal with the point now. We do encourage people to make lasting powers of attorney, for example. The important fact is that we want to encourage young adults and their parents to be aware in advance of the legal position that the young adult will be in when they turn 18; it is a fundamentally different position from the one they were in the day before their 18th birthday.
End-to-end Rape Review
Baroness Bertin Excerpts(3 years, 5 months ago)
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Baroness Bertin (Con) [V]
My Lords, there is much to support in this review. I am pleased that the Government have been so candid in their assessment of what is a totally unacceptable situation, but I do not doubt their commitment to trying to rectify it.
It is particularly encouraging to see that the report is committed to implementing an offender-centred police process. Putting victims and their character at the centre of the investigation, rather than the suspect and his behaviour, is one of the biggest reasons why so many cases fall down and have “NFA” stamped on them. We have to try to change the culture of questioning the victim’s behaviour and focus instead on perpetrators and why they are doing this. In my view, this approach should always have been the norm. Will the Minister commit the Government to a further funding stream and ensure that this approach is rolled out across forces as quickly as possible?
Lord Wolfson of Tredegar (Con)
My Lords, on funding, we have invested record amounts in support for victims in the last 18 months. We spent more than £70 million on rape and domestic abuse services in the financial year 2020-21, and £27 million on the expansion of the independent sexual violence adviser service—ISVA —which I mentioned earlier. The data is extraordinary, showing that a victim is 49% more likely to stay engaged with the process and see their complaint through to its conclusion if they have that support. That is why we will be consulting on a statutory underpinning for the ISVA role.
My noble friend used the phrase—if I have taken a correct note—“totally unacceptable” to describe the current position. I do not dissent from that. I also agree with her, as I said earlier, that we need to have more focus on investigating the perpetrator and less on investigating the victim.
Domestic Abuse Bill
Baroness Bertin ExcerptsWednesday 10th March 2021
(3 years, 8 months ago)
Lords ChamberRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 171-III Third marshalled list for Report - (10 Mar 2021)
Baroness Bertin (Con) [V]
My Lords, it is a great honour to follow the noble Lord, Lord Rosser. I am greatly relieved that he said what he said—he made some powerful points—but it is right that we back the government amendments. I will speak to that today.
The Bill’s commitment to giving refuges statutory status is vital, but we knew that giving no statutory recognition anywhere in the Bill to community-based services posed a clear risk to inadvertently downgrading their status, which we absolutely had to prevent. I believe that these amendments do that, but I agree that we will all keep a close eye on their execution to check that they genuinely safeguard the status of community services.
I thank the designate domestic abuse commissioner, as well charities such as Barnardo’s and SafeLives and my noble friend Lord Polak, for being so determined and tenacious. I am greatly relieved that these charities have welcomed these amendments. I know that they are satisfied and greatly relieved, but of course we will have to keep a close eye on whether they do the job. I also extend my thanks to my noble friend the Minister. She has given us a lot of time on this issue and genuinely cares about it. I know that she was integral to getting these amendments over the line.
I back other Peers’ calls to make sure that the domestic abuse commissioner’s office has the proper resourcing to carry out these additional responsibilities. Throughout this Bill’s passage, we have been sending her more and more work, so reasonable adjustments should be made. Helping victims to stay in their homes, stemming the abuse before it damages families beyond repair and prevention must be at the heart of our strategy over the coming years. These amendments point to that. I fully support them and urge noble Lords to do the same.
Baroness Butler-Sloss (CB) [V]
My Lords, I will speak to Amendments 31 and 85. I underline that domestic abuse services, which I very much support, should include victims being forced into marriage. I particularly have in mind the special needs of those being forced into marriage who are under the age of 18. I know that the Minister is well aware of the points that I am making. I am sorry to keep pressing them, but I want them on the record.
Baroness Bertin
“Confidentiality of refuge addresses
(1) In family proceedings, where a person (“P”) is—(a) witness or party to the proceedings; and(b) has been subject to domestic abuse as defined under section 1 of this Act; and(c) is residing at a refuge;the provisions in this section apply.(2) The court must not share the residential address of the refuge with any individual or third party.(3) A court order must not be served on P at the residential address of the refuge.(4) A court order may be served on P at the refuge’s office address or by an alternative method or at an alternative place, in accordance with Part 6 of the Family Procedure Rules 2010.(5) The residential address of the refuge must be redacted from any court documentation.”Member’s explanatory statement
This would prevent the residential address of a refuge being shared as part of court proceedings.
Baroness Bertin (Con) [V]
My Lords, I laid this amendment in Committee because I was genuinely shocked that a refuge address could ever be revealed to a perpetrator. Victims are not moving to refuges because they fancy a change of scene; they are fleeing for their lives. Since laying that amendment I have heard many more anecdotes from those on the front line, suggesting that disclosure of a refuge address to a perpetrator is not a particularly rare occurrence. I am hugely troubled by this, and it is the reason why I have laid the amendment again.
I am also hugely troubled that we have absolutely no solid data on how frequently this happens. We should not have to rely on anecdotal evidence, important though it is. Surely there should be more formality in central record-keeping to document such serious disclosures.
To reach a refuge, a victim must leave behind their home, job and possessions, and in many cases they must uproot their children. To have reached the conclusion that that is the only way forward is to experience a level of trauma and abuse, and have reached a crisis point, that most of us simply cannot comprehend. We owe it to them to have a cast-iron guarantee that this course of action is not for nothing and that the law will protect them. I believe the amendment would do that.
As I said in Committee, the amendment seeks to provide a legal safety net for the secrecy of refuge addresses. The refuge model, as we know, is predicated on the secrecy and protection of safe addresses. The responsibility for protecting those addresses falls not only on the staff but on each and every resident at a refuge. Many of us in this House will have visited a refuge. I was not even allowed to talk about which part of London I had been in when discussing my visit at a later date.
By way of background, refuges can find themselves the subject of orders from the family court, particularly location orders, generally from fathers trying to locate mothers and children. Refuge providers are forced to disclose their addresses to facilitate the service of a court order on mothers, and although some protections are in place, it is clear that there are serious loopholes. As it stands, the court has discretion as to what information is provided and always has the option not to order refuges to disclose their addresses and locations. It is therefore deeply concerning that some judges either turn a blind eye or do not take enough care or proactive steps to ensure that maximum levels of confidentiality are maintained.
In the interests of time I will not repeat the two examples that I gave in Committee, but I know noble Lords will have enormous empathy for the fear and chaos that ensues when a perpetrator discovers the location of a refuge. This is not just about the safety of the residents; it also concerns the welfare of staff. They too are taking a risk in the job that they do, and should not have to put up with violent and threatening behaviour.
My amendment remains the same as in Committee and it is a simple one: the court order should never be served at the refuge itself, and the refuge address should remain confidential. It provides that the order should be served at the refuge’s office address or by an alternative method or at an alternative place. As such, the amendment would not make any significant change to the protections that already exist; it would strengthen and clarify the cases in which they should be used, so that all judges were crystal clear. In my opinion, any disclosure of the refuge address demonstrates that the existing safeguards are not adequate, and we cannot confidently say that refuge addresses will always be appropriately protected. I believe that the practice on the ground is not necessarily consistent with what is intended by the Family Procedure Rules, and they therefore require strengthening and updating.
In Committee, my noble friend the Minister raised the issue of child safety—as I am sure he will again in his response today—stating that there was some concern that an alternative route to service, such as using the office address of a refuge, would present a delay in proceedings and could have the unintended consequence of endangering the child. I reiterate once again that I respectfully disagree. I suggest that the current situation, where refuges are pressured into revealing their most fiercely guarded information, causes more delay and can of course result in significant harm. I add that refuges are not unregulated hideaways, and safeguarding standards around children will always be paramount. I stress that the amendment is absolutely not about denying contact. Indeed, if the refuge’s office address were formalised as the alternative route to service, providers would understand that they have a duty to locate the mother as soon as possible and would not be faced with a serious conflict in doing so.
In Committee, some noble Lords questioned whether it was reasonable to expect refuges to have an office address. Women’s Aid has reassured me on this point: if they do not have a separate office address, they have a PO box address that the refuge uses to ensure that GPs, police and other agencies are able to contact the women who live there.
I sincerely hope the Minister can find a way to accept the amendment, but, at the very least, I believe the guidance must be strengthened beyond doubt. I also feel strongly that the Ministry of Justice needs to find a way to keep track of the number of cases involving the service of court orders on refuge addresses and the disclosure of those addresses. If it is indeed rare then the amendment should not be too onerous, and it could ensure another check and balance on these proceedings. Furthermore, the lack of transparency in the family courts is surely something that needs looking at. I accept that that is not something for this Bill, but it has come up time and again, and it appears to present a barrier to reform.
I thank the Minister for his time on this issue. We are lucky to have his experience on these Benches, and I am sure he will bring an urgency to issues such as the one being addressed in this amendment. I beg to move.
Lord Wolfson of Tredegar (Con)
My Lords, I am very grateful to my noble friend Lady Bertin for her continued engagement on the issue of the confidentiality of refuge addresses. I take this opportunity to thank refuge providers and others in the sector who took time out of their very busy diaries to meet me on this issue: we had a very useful discussion.
As with many issues with the Bill, it seems to me that we all agree on the issues of principle. Refuges are places of safety. They play a vital role in effectively responding to domestic abuse, and in supporting victims and their children. Therefore, I am in complete agreement with the principle underlying my noble friend’s amendment, that those in refuges must be protected. As such, it is right that the Government and those involved in family proceedings carefully consider both whether existing measures offer enough protection and whether there are further steps that could be taken better to protect domestic abuse victims living in refuge accommodation.
In Committee, I outlined that those engaged in family proceedings are not required to disclose their address, or that of their children, unless specifically directed to do so by the court. Where such a disclosure direction is made, addresses are disclosed to the court only, and it is for the court to determine whether information it holds should be disclosed further. Where there are known allegations of domestic abuse, the court should hold this information as confidential. I reassure the noble Baroness, Lady Hamwee, that the formulation I used in Committee was certainly intended to indicate agreement.
Turning to the service of orders at refuge addresses, I again thank those from the refuge sector with whom I discussed this issue and their experience of it. They gave some valuable evidence, and we heard some more this evening from the noble Baroness, Lady Uddin. As I indicated in Committee, existing measures, particularly Part 6 of the Family Procedure Rules, enable the court to direct bespoke service arrangements, and orders can be served at alternative addresses, such as the refuge office address. This approach should be taken wherever possible.
I noted the way that the noble Baroness, Lady Hamwee, put it: service on a refuge should be avoided. However, as I said on the last group, the real question is the welfare of the child, which is of paramount consideration in family proceedings. I remain of the view that there can be limited circumstances where the court may need to serve an order on a party at the refuge they are staying in because not doing so would pose risks to the safety of children involved in family proceedings.
One can envisage such cases, and I would not wish to limit the court’s ability to act quickly in those circumstances to safeguard a child, which might occur were we to place a blanket or inflexible restriction on addresses at which an order can be served. However, I would expect family proceedings where an order needs to be served at a residential refuge address to be very few and far between. Although the question must ultimately be a matter for the judiciary and not for the Government Front Bench, one would expect that a refuge address would be used only when there is no other viable alternative in the circumstances.
I have indicated that existing measures enable protection for victims in refuges. However, I am persuaded that there is a legitimate question of whether those measures could be strengthened to ensure that victims are better protected, that addresses are not disclosed to perpetrators, and that service of orders at refuge addresses is directed only when absolutely necessary. While I am clear that primary legislation, and therefore this amendment, is not the appropriate response here, there are other routes to explore, as I have discussed with my noble friend since Committee.
This issue has been discussed between Ministers and the President of the Family Division in recent bilateral meetings. I assure my noble friend that the judiciary is taking seriously the concerns raised. I appreciate, in this context, that the noble Lord, Lord Ponsonby of Shulbrede, wanted some reassurance from the Government; I hope I am giving it to him. The Whips may not agree, but one of the benefits of making slightly slower progress on Monday than we intended is that I can now say that this matter was discussed at the meeting of the Family Procedure Rule Committee on Monday, which was a couple of days ago. The committee agreed to work on this issue and will be giving it detailed consideration in the coming weeks and months.
The Government are committed to protecting vulnerable victims of domestic abuse from further harm by their abuser. I am confident that this issue is being properly and carefully considered by members of the senior judiciary and by the Family Procedure Rule Committee. I have full sympathy with the motivation behind this amendment. I understand why my noble friend has maintained this, and why the noble Lord, Lord Marks, had considerable sympathy with it on the confidentiality point, although I note that he did not engage with the lack of any exception to the proposition set out in subsection (3) of the proposed new clause—that is, service on a refuge address.
I have used my response to set out what the Government are doing and the steps being taken. I hope that, having provided that assurance to my noble friend, she will now be content to withdraw her amendment.
Baroness Bertin (Con) [V]
I thank noble Lords for their valuable contributions to this short but very important debate. I am grateful to the noble Baroness, Lady Hamwee, for her support and for putting her name to the amendment, and likewise to the noble Baroness, Lady Uddin, for her kind words. It was powerful to hear that the noble Lord, Lord Marks, with all his deep knowledge of the law on these issues, and the noble Lord Ponsonby, agreed with the amendment. I felt it was important to hear them say that, and I thank them for it.
I am of course disappointed that my noble friend the Minister does not see that there is a need to put this into the Bill. I will never accept that there is justification for revealing the location of a refuge, but I have really appreciated the time that he has given to this issue. I can tell that he cares; he obviously has a concern about this issue and is committed to trying to deal with it. I absolutely accept that his response has gone further than that in Committee, so I will bank that progress and am grateful for it. We have indeed spoken at length about other routes to explore, and I will certainly be keeping in touch with him on this. I also want to pursue greater transparency.
I was very reassured—as my noble friend said, the timing has been fortunate—that the issue has already been discussed with the President of the Family Division on the back of the amendment. I do not doubt the judiciary’s willingness to tackle this and to take these accounts seriously. We will certainly keep a close eye on this and the progress that it makes. With that in mind, I will withdraw the amendment.
Baroness Grey-Thompson (CB) [V]
My Lords, I speak to Amendments 46 and 47, which are in the name of my noble friend Lady Campbell of Surbiton and to which my name is also added. Because Amendments 46 and 47 are an amendment to 45—and I do not wish to quote sections of the Companion to the Standing Orders to your Lordships’ House—I would like to make clear that those listed as signatories have been put in the unenviable position of making the heartbreaking decision of whether to divide the House and risk preventing the valuable amendment put by the noble Baroness, Lady Lister, from being passed.
In speaking after my noble friend, I do not wish to reiterate what has already been well articulated. I would like to thank the staff of your Lordships’ House, the disabled peoples’ organisations and many disabled women for the considerable amount of work they have put into this Bill. If there is one thing I ask of the Minister and the Bill team, it is that, when legislation that has such an impact on disabled people is being considered, disabled peoples’ organisations are expressly and extensively consulted. The added issues disabled people face should always be included.
On Monday it felt that, while we might not have convinced Her Majesty’s Government of the need to include disabled people in this Bill, the Chamber strongly supported my noble friend’s amendments. I would like to thank the 318 Peers who voted to support and include disabled people this week. I am expecting that there will be much support as we debate this group, but there will be push-back from Her Majesty’s Government.
Having re-read Hansard several times this week, I fear that we still have to convince Her Majesty’s Government of the need to protect disabled people. It is important and welcome that controlling or coercive behaviour is more widely understood across society, but that same protection does not appear to be afforded to disabled people. For that, I am extremely disappointed.
I wholly, but with a sad heart, support my noble friend’s decision tonight. As I mentioned at the beginning of my speech, my noble friend has been put in the unenviable position of having to explain to disabled people who experience abuse in a domestic setting—whom she has spent a considerable part of her working life supporting and protecting—that the politics and procedures we are operating under have excluded their place in the Bill.
I know from extensive discussions with those involved in these amendments that, in accepting and supporting the amendment of the noble Baroness, Lady Lister, which I absolutely do, if the House were divided we might put Amendment 45 at risk. There is always a price to pay by some in bringing legislation. Tonight, and in this instance, the price is being heavily paid by disabled people.
Baroness Bertin (Con) [V]
My Lords, I will speak to Amendment 45, but I do want to reference the noble Baronesses, Lady Campbell of Surbiton and Lady Grey-Thompson. Their words have been very powerful, and we should never forget about the rights of disabled people. We should always try and give them a voice and make sure they are heard, because they are not heard enough in my view.
Baroness Bertin (Con) [V]
My Lords, given the hour I will be very brief. I thank the Government and my noble friend the Minister for listening and laying their own amendments to close the loophole I raised in Committee. It is a very small gap, but one it is right to fill. Doing so sends the right signal domestically and internationally. The UN said in a recent report that the home is still one of the most dangerous places for women. In many countries, sex is still seen as an automatic part of the marriage contract. No data on marital rape is collected in many countries, where not only is it not a crime but social pressure means that it is rarely reported or discussed. We have been pioneers in this area of law; it is right that this country be able to uphold the high standards of our legislation at all times.
Lord Paddick (LD) [V]
My Lords, I am very grateful to the noble Baroness, Lady Bertin, for identifying this gap whereby marital rape is not an offence in some countries and therefore British nationals would not have been convicted had they committed marital rape in them. I am very grateful to the Minister for responding to the identification of that gap and closing it effectively.
Domestic Abuse Bill
Baroness Bertin ExcerptsMonday 8th February 2021
(3 years, 9 months ago)
Lords ChamberRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 124-VI(Rev) Revised sixth marshalled list for Committee - (8 Feb 2021)
Baroness Bertin
Baroness Bertin (Con) [V]
My Lords, as a member of the Joint Committee that undertook pre-legislative scrutiny of the draft domestic abuse Bill, I know that the extraterritorial jurisdiction provisions of the Bill are intended to fulfil the UK’s obligations under Article 44 of the Istanbul convention. I welcome the fact that these provisions will bring the UK closer to ratifying a convention that we signed in 2012 and which will protect women and girls from violence and abuse.
My amendments concern a very specific issue—marital rape—where I believe the Bill as presently drafted may leave a potential loophole. I recognise that the drafting of the amendments may itself be imperfect, and my noble friend the Minister will no doubt speak to that, but I would like to explore whether the Bill could be strengthened so that people from this country cannot exploit laxer laws elsewhere.
In this country, the common-law presumption of a marital exemption from the offence of rape was overturned by your Lordships’ House in the case of R v R in 1991. Some countries similarly do not have any exemption for marital rape, and in others marital rape is explicitly criminalised, but there is a small minority of countries in which marital rape is not illegal. As drafted, the Bill appears to require that a prosecution for rape and other sexual offences committed against adult victims outside the UK may be brought in the UK only when the offending behaviour is also an offence in the country where it happens, but that requirement could prevent us prosecuting someone for marital rape committed outside the UK, if such behaviour is not included in or is exempt from the equivalent offence in the other jurisdiction.
This may be a small gap. I certainly hope that there would not be many, if any, cases of marital rape perpetrated by a UK person in a country that does not consider such behaviour to be a crime, but I believe that, if there is potential for this to occur, we should act to prevent it. I beg to move.
Lord Paddick (LD) [V]
My Lords, Section 72 of the Sexual Offences Act 2003 makes it an offence, in England and Wales, for a UK national or resident to commit sexual offences against children outside the UK, in an effort to clamp down on so-called sex tourism. Paragraph 2 of Schedule 2 to this Bill makes it an offence, in England and Wales, for a UK national or resident to commit sexual offences, under Sections 1 to 4 of the Sexual Offences Act 2003, against people aged 18 or over at the time of the offence, extending extraterritoriality to serious sexual offences against adults as well as children.
As the noble Baroness, Lady Bertin, has explained, the idea is to ensure that the Government comply with the Istanbul convention but, as she pointed out, for somebody to commit an offence, it has to be an offence not only in this country but in the country where the offence took place; in some of those countries, marital rape may not be criminalised. Therefore, I believe that the noble Baroness, Lady Bertin, has identified a potential loophole. I look forward to hearing what the Minister has to say in response.
Baroness Bertin (Con) [V]
I thank the noble Lords, Lord Kennedy and Lord Paddick, for their very thoughtful remarks, and for their support on this amendment. It is a very small gap, but I think it worth plugging none the less. I thank the Minister for his thorough and illuminating remarks, from which I learned quite a bit. I am pleased that they were very warm words as well, and I thank him for his consideration of this amendment. I look forward to further conversations and some progress, I hope. It has been a refreshingly short debate, and I will keep it so. I beg leave to withdraw my amendment.
Lord Paddick (LD) [V]
My Lords, I thank the noble Baroness, Lady Lister of Burtersett, for so clearly and comprehensively introducing her amendment. Amendment 149 would insert a new clause that seeks to extend the protection from any coercive and controlling behaviour that occurs post-separation. The noble Baroness concentrated on economic abuse, but that is not the only form of ongoing abuse.
I was in a relationship that became increasingly abusive over a period of five years. The first time I noticed something was happening was when a friend, a former partner, sent me a birthday card. When I explained who it was from, my then partner tore it up and threw it in the bin. His controlling and coercive behaviour continued and got worse, and he eventually resorted to physical violence. When we split up, he threatened to kill me and threatened to write to my employer to try to destroy my career. I continued to live in fear of what he might do until, 18 months after we had split up, he colluded with a Sunday tabloid newspaper to expose intimate details of our private life, including making public my HIV status, as well as making false allegations that the newspaper eventually admitted were libellous. Fighting the issue in the courts would have resulted in me losing everything if I had lost that case. His actions did not amount to harassment or stalking.
Coercive and controlling behaviour can continue long after separation, with victims of domestic abuse continuing to live in fear of what the perpetrator might do next, and the law needs to reflect this. Section 76 of the Serious Crime Act 2015 applies only if the perpetrator and victim are in an intimate relationship or if they live together. This amendment would ensure that it would apply to all those who are “personally connected” as defined by Clause 2 of this Bill, whether they live together or not. As such, it would also include the circumstances that Amendment 157 seeks to cover, where a relative is exerting controlling or coercive behaviour, whether or not they live together.
As the noble Lord, Lord Hunt of Kings Heath, explained, his amendment is specifically aimed at protecting older and disabled family members. I strongly support Amendment 149 and welcome the focus which Amendment 157 brings to the abuse of older and disabled family members.
Baroness Bertin (Con) [V]
My Lords, it is an honour to follow the noble Lord, Lord Paddick, in this important debate; he speaks movingly and powerfully on this issue. I support Amendment 157, for which the noble Lord, Lord Hunt set out the argument very well, but I will speak primarily in support of Amendment 149, tabled by the noble Baroness, Lady Lister, to which I have also put my name. I also wish to thank her for all of her work in this area, and for eloquently speaking to this amendment, setting out in forensic detail why it is needed.
David Challen, son of Sally Challen, wrote movingly today in the Times. He said that leaving an abuser can be the most defining moment of a victim’s life. The fear of what will happen when they separate from their abuser is often overcome by an instinct of survival and the hope that they will be protected. However, as the law stands on coercive and controlling behaviour, victims who leave are not protected.
It is obvious that coercive control does not end when a relationship does and that very often the exact opposite happens, and the abuse escalates. As many noble Lords have said, this is particularly true of economic abuse, which does not require physical proximity to perpetrate, but can have a crippling effect on victims as their abuser seeks to make their life as hard and as financially unstable as possible. We also need to remember how often children are caught up in the continuation of this kind of abuse, with child maintenance very often being turned off and on like a tap. It is therefore absolutely right that the definition of domestic abuse in this Bill will include economic abuse and also recognises that the abuse can continue when the couple split up. We now need to take this opportunity, as others have said, to amend the Serious Crime Act 2015 to bring coercive control in line with the far better drafting of this Bill.
Not accounting for post-separation abuse is a serious shortcoming of the offence. Given that separation, as we have heard from other noble Lords, is a time at which women are at heightened risk of homicide, this shortcoming is dangerous, too. The Government made the point that existing legislation on stalking and harassment already addresses post-separation abuse. Like others, I absolutely do not accept that. These crimes are not the same and to suggest otherwise shows a lack of understanding about all these offences. I also do not believe that the Government’s outstanding report on controlling and coercive behaviour should stand in the way of this vital opportunity before us.
If the law on coercive control stays as it is, what kind of signal do we send to victims? It is this: “Stay put and we can charge him, but if you leave, we can’t touch him.” This makes no sense at all and must change. Failing to recognise that these abusive behaviours can occur post separation creates a dangerous gap in our understanding of this crime and would leave too many victims without the proper justice they deserve.
Baroness Greengross (CB) [V]
My Lords, I support this group of amendments and specifically wish to speak to Amendment 157, to which I have added my name. Section 76 of the Serious Crime Act 2015 covers coercive or controlling behaviours by family members who live with their victims; this amendment would ensure that this is broadened to include those family members who reside at a different address.
As I outlined at Second Reading, many older people suffer from domestic abuse, which all too often goes unreported. Until very recently, the ONS did not collect data for those aged 75 and over in the national crime survey. Since the Covid-19 pandemic, the ONS has stopped asking questions around sensitive topics including domestic abuse and sexual assault, so it will not be until sometime after the pandemic that the ONS will start publishing data on the abuse of older people.
From the information we do have, however, we know that the abuse of older people is often committed by family members and victims can be reluctant to report this. In cases where parents are abused by their children, they often feel that the abuse reflects on them as parents—and indeed it might. The Metropolitan Police and other UK police forces have said that this is a significant factor in the underreporting of abuse against older people.
The organisation Hourglass, formerly Action on Elder Abuse, which I originally set up with the help of the Department of Health and of which I am a patron, has a helpline to support older people who are victims of abuse. The most frequent perpetrators recorded by the helpline are sons and daughters, making up 30% of all calls in 2019 and 38% of calls in the first six months of the pandemic, from March to September 2020.
Abuse against older people, like abuse against people of any age, takes many forms, as we know. Hourglass reports that, in 2019, 40% of calls to its abuse helpline involved financial abuse. Very often, this form of abuse is carried out by family members who do not reside at the same address as the victim.
One way this financial abuse occurs is through the use of technology and the digital exclusion of older people. In June 2020, the International Longevity Centre UK, of which I am chief executive, published a paper entitled Straddling the Divide, which highlighted the issues that many older people face with digital exclusion during the Covid-19 pandemic. The report found that, in the UK,
“around 11.9 million people lack the digital skills they need for everyday life.”
It also found that
“only 47% of adults aged 75 years and over recently used the internet.”
At a time when older people have been told to stay home and shield, many have not been able to go to the bank as they have in the past. More than ever before, many now rely on others to manage their finances online. Very often, this is done by a close family member and sadly, as we know, this can lead to financial abuse.
Such abuse is often coupled with controlling and coercive behaviours by the perpetrator where other forms of abuse, such as physical or psychological abuse, are not used. It is crucial that the offence of controlling or coercive behaviours by family members includes those not residing with the victim, as this would strengthen the law in protecting against the abuse of older people—which, I hope all noble Lords agree, is a serious and often urgent issue that must be resolved as a matter of urgency.
The Lord Bishop of London [V]
My Lords, I add my voice to this amendment simply because it should go without saying that some things need to be penned into law for there to be consistent access to justice. Amendment 161 has been tabled because it prevents GPs charging survivors of domestic abuse for letters which confirm injuries they have suffered—evidence which survivors need for their legal aid applications. The case for this amendment has been extremely well made by the noble Lord, Lord Kennedy, and the noble Baroness, Lady Bull. I agree with the statements they have made, so there is no need to add much to what has been said.
There should be no gatekeepers when we consider the path to justice, not least from those who are on the path to help facilitate it. As we have heard, the British Medical Association has recommended that patients should not be charged for medical evidence when seeking it for legal aid. I too stand by this, by virtue of calling for this amendment to be included in this Bill.
Baroness Bertin (Con) [V]
My Lords, I support Amendment 161 and thank the noble Lord, Lord Kennedy, for tabling it and for being so tenacious. It is an honour to speak after the right reverend Prelate the Bishop of London. We cannot on the one hand spend years putting together a great Bill like this that says to victims, “We hear you; we are there for you; we want to help you escape”, and on the other hand stand by and allow those same victims to be potentially charged £150—an extortionate amount for many people—for proof of that abuse.
Domestic abuse does not discriminate. You can be a victim of abuse whether you are rich or poor. Unfortunately, while this fee remains, it does and will discriminate against poorer victims. Many of them will go without legal representation, many will return to an abuser and many will be seriously injured or worse as a result of being unable to access the legal remedies that are supposed to keep them safe. I know that the Department of Health has a fair amount on its plate right now, but it should endorse this small change to the Bill. It could have an immeasurable impact on people’s lives when they are at their most vulnerable.
Lord Wolfson of Tredegar (Con)
My Lords, I am grateful to the noble Lord, Lord Kennedy of Southwark, for raising this matter—I am tempted to say “again”, but of course I should really say “again and again”. The list of engagements which he set out was impressive, and I fear I may not be able to provide satisfaction to the noble Lord where so many of my illustrious forebears have already failed. If I can put it this way: what he has said this evening has only increased my resolve to try to sort out this issue, not only because it is plainly an important matter to be addressed, as so many have said, but because it means that I will escape the horrid fate of being added to the noble Lord’s list.
The Government, as will be clear from what has been said by my forebears and what I have just said, wholeheartedly agree that vulnerable patients should not be charged by doctors for evidence to support them in accessing legal aid. That being the case, we are sympathetic to the spirit of this amendment. The issue requires further consideration ahead of Report for the reasons I will briefly set out. While I cannot commend this amendment to the Committee today, I will be looking at it in detail between now and Report. I should also take the opportunity to point out a couple of technical issues with the amendment, which I hope will also be helpful.
I am pleased that the noble Lord, Lord Kennedy, was able to meet with the Minister for Prevention, Public Health and Primary Care and representatives from the British Medical Association ahead of today’s debate to discuss the issue. I think it fair to say that everyone who attended this meeting was seized fully both of the issue and of its importance. As the noble Baroness, Lady Bull, said, we do not want to do anything to prevent or discourage victims of domestic abuse coming forward, and that includes questions of cost. That said, it is fair to say that there was some anecdotal evidence at the meeting which pointed to this perhaps being a diminishing problem, particularly since, as the right reverend Prelate the Bishop of London reminded us, the BMA issued advice to its members last year that they should not charge for this service, advice which they recently reinforced.
Following that meeting, the noble Lord, Lord Kennedy, graciously undertook to provide what evidence he had of this being a continuing issue so that we could consider the matter further. We look forward to receiving that evidence and continuing our discussions. However, as matters stand this evening, we remain to be persuaded that this issue needs to be resolved through primary legislation.
The position is that GPs can provide services in addition to NHS contracted services. They are classified as private services, for which they have the discretion to charge the patient. Letters of evidence to access legal aid is one such private service. It is therefore up to an individual GP practice to decide whether a charge should be levied and, if so, what it should be. However, as I indicated, as part of the 2020-21 contract agreement, the BMA recommended to all GPs that a charge should not be levied for letters of this kind. That is a welcome recognition by the BMA that, as was said, vulnerable patients with limited means should not be expected to pay for such letters. We recognise and commend the vast majority of GPs who are following that guidance, but it is a non-binding recommendation. As the noble Lord, Lord Kennedy, mentioned, we are informed of anecdotal examples where patients can be charged up to as much as £150 for that evidence.
As I said, I should make a couple of observations about the drafting of the amendment, although I recognise that these can be readily addressed in a further iteration of it. First, as currently drafted, the amendment refers to
“providing a letter … for the purposes of regulation 33(2)(h) of the Civil Legal Aid (Procedure) Regulations.”
That regulation was amended by later civil legal aid procedure regulations in 2017, so there is now no such regulation as presently referred to in the amendment. That is something that could be addressed in further drafting, and I respectfully suggest that it is.
Secondly, the amendment relies on the definition of a “general medical services contract” in Section 84 of the National Health Service Act 2006, which applies to England only. I assume that that is the case because, as the noble Lord is aware, the health service is a devolved matter in Wales and therefore this issue is a matter for the Welsh Government. I thought that it was worth making that point clear as well.
I return to the main point, on which, if I may respectfully say so, we have heard a number of very cogent speeches. I have not yet mentioned the contribution of my noble friend Lady Bertin, which was equally forceful. The Government remain committed to exploring options around this issue with the medical profession to ensure that vulnerable patients are not charged, and I would welcome the noble Lord’s continued help in this regard. In particular, once he has been able to provide what evidence he has of GPs continuing to charge victims of domestic abuse for these letters, we will be happy to have further meetings with him ahead of Report.
I hope that in the meantime he will feel able to withdraw his amendment, but he can rest assured that I have it ringing in my ears that I will face a similar amendment on Report if we cannot satisfactorily resolve the matter before that stage. I commit to working with him and to doing all I can to reach that satisfactory conclusion.
The Deputy Chairman of Committees (Lord Alderdice) (LD)
The noble Baronesses, Lady Newlove and Lady Jones, have withdrawn, so I call the next speaker, the noble Baroness, Lady Bertin.
Baroness Bertin (Con) [V]
My Lords, absolutely it is late in the day, and so many other noble Lords have made brilliant speeches to which I cannot add a great deal. I wholeheartedly support Amendment 162 and thank my noble friend Lady Morgan for setting out the case so well.
We have heard a lot about why we are waiting for the Law Commission. I do not think that we should wait, because threats to share intimate images make up such a small part of this review. Amendment 162 is a simple, narrow yet powerful amendment to extend an existing offence. I ask the Minister how many more victims will live without the legal protection they need while we wait years for the law to change—a change that we can make right now in this Bill. I hope that the Government consider and take on board this amendment.
Baroness Primarolo (Lab) [V]
My Lords, I will speak only briefly on Amendment 162. I too thank those organisations that have provided a briefing for this debate, particularly Refuge, which has been excellent throughout. Like other noble Lords, I commend its report, The Naked Threat.
At the beginning of the debate, the noble Baroness, Lady Morgan of Cotes, eloquently outlined why we need to act now. It is impossible to imagine the horror that someone might feel when their phone pings with a message from their ex-partner with photos attached, perhaps ones that they did not even know had been taken, and a threatening message saying, “How bad would it be if these were sent to your work colleagues?” By threatening to share the photographs, your ex-partner is escalating a campaign of intimidation and coercive control to make you do what they want. You can try to deal with it, but he is going to continue with those threats. He had been volatile and controlling, which is why you left him, and now he is trying to get you to go back to him or he wants to prove that he can still control you.
Over time, those threats become darker and more unsettling. You become anxious, you feel unsafe, you are not sure whether he is coming to your home or your work, following you or contacting your friends. He is now frightening you and threatening your physical well-being. Finally, you go to the police, but they decline to help on the basis that he has not done anything wrong and has not committed an offence, so there is nothing they can do. You feel deeply depressed, isolated and fearful. You stay away from friends and virtually go into hiding, not knowing where to turn for help.
As noble Lords have said, young women are disproportionately affected by these threats. The noble Lord, Lord Russell of Liverpool, has compellingly set out the statistics. This issue is only going to grow, so any form of protection now needs to be brought in rapidly. The data is clear and illustrates why it is vital that an amendment is made to this Bill. No doubt, as other noble Lords have said, the Minister will cite the Law Commission review. However, as we know, those reviews can take years to come to a conclusion, as well as the Government deciding which recommendations they will accept. The Government then need to find parliamentary time. In replying to the debate, the Minister really does have to answer the question put by other noble Lords: if we are to wait for the outcome of the review and the Government’s decision on which recommendations they will apply, how long will that take? How long are the Government asking the survivors of this abuse to wait?
The Law Commission review covers a vast area of policy. Amendment 162 is not about pre-empting the full review. The changes it would make are small, straightforward amendments to an existing law that would not have a broader impact on the legal landscape. There really is nothing to stop the Government making this small change now, given that we have appropriate legislation before us.
This debate has clearly demonstrated that the threat to share intimate images is widespread. It is linked to domestic abuse and is having a devastating impact on the survivors of abuse. It is an issue that is going to increase and will continue to put power in the hands of the perpetrator, leaving survivors traumatised and isolated, perhaps forced to change their lives and move away from their homes, simply because the Government refuse to make this small change to the law. I hope that, in replying to the debate, the Minister will explain clearly, if the Government are unable to accept the amendment, how they propose to protect the survivors of this abuse.
Domestic Abuse Bill
Baroness Bertin ExcerptsWednesday 3rd February 2021
(3 years, 9 months ago)
Lords ChamberRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 124-V Fifth marshalled list for Committee - (3 Feb 2021)
Baroness Bertin
“Confidentiality of refuge addresses
(1) In family proceedings, where a person (“P”) is—(a) witness or party to the proceedings; and(b) has been subject to domestic abuse as defined under section 1 of this Act; and(c) is residing at a refuge;the provisions in this section apply.(2) The court must not share the residential address of the refuge with any individual or third party.(3) A court order must not be served on P at the residential address of the refuge.(4) A court order may be served on P at the refuge’s office address or by an alternative method or at an alternative place, in accordance with Part 6 of the Family Procedure Rules 2010.(5) The residential address of the refuge must be redacted from any court documentation.”Member’s explanatory statement
This would prevent the residential address of a refuge being shared as part of court proceedings.
Baroness Bertin (Con)
My Lords, in moving Amendment 131 in my name, to which the noble Lord, Lord Ponsonby, has added his name, I will leave the other amendments in this grouping in the capable hands of the noble Lord, Lord Rosser, and the noble Baroness, Lady Helic. However, I support them.
Amendment 131 seeks to provide a legal safety net for the secrecy of refuge addresses. The refuge model is predicated on the secrecy and protection of safe addresses. The responsibility for protecting these addresses falls not only on staff but on each and every resident at a refuge. Licences are assigned upon entry, with the penalty that a resident must leave if they reveal the address to anybody. Despite these safeguards, refuges can find themselves the subject of orders from the family court—particularly location orders from fathers trying to locate mothers and children. Refuge providers are forced to disclose their addresses to facilitate the service of court orders on mothers. Although some protections are in place, it is clear that there are some loopholes.
I do not want to overstate how often this happens but it is certainly true that, in nearly all such cases, information is kept confidential. However, last year, I was made aware of two cases where this information was released by the court, with concerning and dangerous consequences. In one case, the police visited the refuge and searched the mother’s belongings for passports, which did not exist, on the basis of false information from her abusive partner. This visit was deeply distressing for an already traumatised mother and child, as it was for other residents of the refuge who felt that their safety had been entirely jeopardised. In the second case, the father used the information to locate and stalk his victim and, ultimately, abduct his child and take them abroad. Having worked on the introduction of stalking protection orders, I am aware how prevalent stalking is in domestic abuse cases and how quickly it can escalate once the victim flees.
The principle behind my amendment is a very simple one: that court orders should never be served at the refuge itself and that the refuge address should remain confidential. It provides that the orders be served
“at the refuge’s office address or by an alternative method or at an alternative place, in accordance with Part 6 of the Family Procedure Rules 2010.”
As such, the amendment would not make a significant change to the existing protections. It would simply strengthen and clarify the cases in which they should be used. When similar issues were raised in Committee in the other place, the Minister stated that the Family Procedure Rules already provide for alternate routes to service and that, in domestic abuse cases, the information would be kept confidential by the court, meaning that the measures in this amendment were already provided for.
The other issue raised by Ministers was around the urgency of cases where a child’s safety is at risk. There was some concern that an alternative route to service, such as using the office address of a refuge, would present a delay in proceedings and could have the unintended consequence of endangering the child. I respectfully disagree and contend that the current situation, where refuges are pressured into revealing their most fiercely guarded information, causes more delay. In the two cases that I have outlined, the refuge provider was resistant to revealing the address and took additional time to seek legal advice and to consider all the options, including genuinely considering not complying with a court order, which in no way is to be encouraged.
By formalising the refuge office address as the alternative route to service, providers will understand that they have a duty to locate the mother as soon as possible and will not be faced with a serious conflict in doing so. Unfortunately, the cases that I have outlined demonstrate that the existing safeguards are not adequate. We cannot say with confidence that refuge addresses will always be appropriately protected. I believe that the practice on the ground is not consistent with what is intended by the Family Procedure Rules, which therefore require strengthening and updating.
In addition, alleged perpetrators do not state in their application that domestic abuse is involved in their case and, as such, the court may not always have the full picture of each case. It may not be able to assess the risk of sharing the refuge address and may not be aware that that information should absolutely not be shared—unusual though that may be. In some cases, the courts do not know about the victim’s allegations until after the order has been served and the damage has been done. The existing provisions for the confidentiality of addresses in domestic abuse cases can therefore be easily circumvented.
This is a probing amendment that seeks to understand the Government’s response to these occasional but none the less unacceptable lapses in confidentiality. I beg to move.
Lord Rosser (Lab) (V)
My Lords, the case for the protection of a refuge address has been made eloquently by the noble Baroness, Lady Bertin. Refuges are places of safety and the sharing of a refuge address is a clear risk to both the survivors of abuse and the staff operating the service. It simply should not happen.
Amendment 132, in the name of my noble friend Lord Ponsonby of Shulbrede and the noble Baroness, Lady Newlove, deals with the issue of the sharing of information, or indeed the lack of it that currently occurs. We recognise that the drafting may not be perfect, but the aim of the amendment is to put a duty on courts of all jurisdictions to share information where the same victim or complainant of abuse is involved in multiple proceedings in which the other party is or is linked to the perpetrator of the abuse.
The impact of silo working and the lack of information sharing between agencies and the different parts of the justice system were highlighted in the Ministry of Justice harm review as a significant barrier to the effective tackling of abuse. In particular, the review raised the fact that different approaches and a lack of information sharing could lead different courts to reach conflicting and contradictory decisions, including, for example, risk assessments and indicators recognised in the criminal courts not being similarly recognised and responded to in the family court. This issue is often raised and perhaps we all tend to nod our heads, yet we have seen little improvement. I look forward to hearing from the Minister what the Government are doing or intend to do to prevent silo working and to improve the sharing of necessary and relevant information in these cases.
Baroness Bertin (Con)
It is a huge honour to try and sum up such a rich and important debate. I made many notes, a lot of which I cannot read, so I will try to keep my remarks very brief. I thank noble Lords for their contributions and I have learnt a huge amount. I put it on record that the Government have made significant and worthwhile changes to the family court system. They have listened to the experts and been constructive in this area.
Perhaps I may respond briefly on the amendment—the only one in my name in this group. I thank my noble friend the Minister for his thorough response. He is kind, even when he disagrees with you, and I am grateful for small mercies. I noted that his position has not moved a great deal since Committee in the other place. That is a shame and I respectfully and robustly refute the charge that the amendment could somehow endanger children; I do not accept that. Wanting to keep refuge addresses completely confidential does quite the opposite. When the matter was raised by my noble friend Lord Young of Cookham the other week in another debate, my noble friend Lady Williams expressed serious concern that not keeping refuge addresses confidential could ever happen, and I believe that the MoJ has now reached out to the refuges in question, which I welcome. I therefore thank the Minister for reiterating the point that the Government are working closely with the judiciary to explore how existing procedures and guidance could be strengthened to ensure that those residing in refuges are protected.
I thought the noble Baronesses, Lady Newlove and Lady Helic, the noble Lord, Lord Rosser, and many others did an excellent job at explaining the remaining amendments in this group. On Amendment 132, I am genuinely shocked that there is no duty on courts to share information, so you can have a victim of domestic abuse in several processes—family courts, civil courts, criminal courts—yet there is no sharing of the information. Surely the judge needs a full understanding to assess the risk. I am not a lawyer, and I know that the law is a complicated creature, but it seems to defy basic good sense. The Minister said that the Government are going to try and change things to make the criminal and family courts run in parallel, which I welcome. This is a little awkward, because I want to do justice to other noble Lords but I do not know what they think of the response from the Minister. But I thank him for the positive remarks on Amendment 132. This sounds like a step in the right direction; improving the use of barring orders certainly does.
I think we can all agree that Amendment 133 is a key amendment and hugely important. It is a great shame that the Minister is not persuaded by primary legislation. I find myself in the unusual position of disagreeing with the noble and learned Baroness, Lady Butler-Sloss, on this. I have enjoyed all her contributions and I think she is so knowledgeable, but I say on behalf of the noble Baroness, Lady Helic, that she wants to pursue this in later stages of the Bill.
On Amendment 134, it sounds like family courts are behind the curve on trauma, and we need to do a great deal more to understand the implications.
The noble Baroness, Lady Newlove, set out a powerful case for Amendment 135. Feeling totally overwhelmed and alone are such common emotions for victims and, as the noble Baroness, Lady Verma, said, and many noble Lords echoed, we must not disempower people.
There are more conversations to be had, if I am honest. But, as I said, mine was a probing amendment, and I withdraw it.
Baroness Bertin (Con)
My Lords, I give my strong support to Amendment 137. I also thank the noble Baroness, Lady Newlove, for her determination and commitment on this issue and thank the Centre for Women’s Justice for all its work. I thank the Government for listening. It is right that non-fatal strangulation, for all the reasons that we have just heard, will be a new stand-alone offence. It is very encouraging that we are discussing this issue with a shared understanding. However, I hope the Government will listen again and agree that the Domestic Abuse Bill is the natural home for this amendment. The Bill has finally reached the stage where we can look forward to Royal Assent in the not too distant future. Let us take the opportunity and place this offence on the statute book now.
Having the offence in this Bill sends a powerful message that this kind of offending is concentrated in domestic abuse cases above all others. A rural police force in England selected 30 cases of strangulation at random from within its data. It found that all were cases of domestic abuse. That is not to say that there are not other situations where this form of violence is used—primarily against women and we do not forget them either—but the majority are domestic abuse cases, where strangulation is part of a wider campaign of terror and control that victims and survivors endure day after day.
It is important for our criminal justice agencies to understand this offence in its proper context as a well-established aspect of domestic abuse. This will help them recognise it and take a robust approach. It will aid increased training and better investigation techniques. We have heard that about 20,000 women suffer from this form of abuse. It is frightening, traumatic and deeply harmful. The noble Baroness, Lady Newlove, was right to set out exactly what it means. It was not easy to listen to but we need to understand it.
As a society, we have been blind to this crime for far too long. We are now finally shining a light on it and need to protect those women as soon as we can. I lost my own cousin to fatal strangulation and I know that a greater understanding of non-fatal strangulation will save lives. We must not delay this.
Lord Marks of Henley-on-Thames (LD) [V]
My Lords, I join everyone who has spoken in thanking the noble Baroness, Lady Newlove, for bringing forward this amendment, for the tireless way in which she has campaigned for it and for her powerful opening of this debate. I also want to record how grateful I and other noble Lords are for the careful and sympathetic way in which the noble Lord, Lord Wolfson, and the noble Baroness, Lady Williams, have listened to the arguments and responded to this amendment since Second Reading.
I believe there is a clear consensus that the absence of a distinct offence of non-fatal strangulation is a serious defect in our criminal law, which allows many cases of appalling attacks to be treated with far too little seriousness—undercharged and insufficiently punished. We have long had an offence outlawed by Section 21 of the Offences Against the Person Act 1861 of attempting to choke, suffocate or strangle in order to commit an indictable offence. However, not only is that Act now seriously in need of replacement, but that offence does not answer the need because it criminalises strangulation only with an intent to commit an indictable offence, so leaving untouched the violent strangulation with which this amendment is generally concerned. As I said at Second Reading, this horrible form of violence is appallingly common and devastating in its physical and psychological effects. Yet because the injuries are difficult to prove, prosecutions, where they happen, are often for common assault, or ABH at most, demonstrably understating the severity the violence involved. We have heard from the noble Baroness, Lady Newlove, and all other noble Lords who have contributed of the appalling statistics and the overwhelming evidence that demonstrate how serious this form of domestic abuse is, how often it stems from or leads on to further violence, and how a history of strangulation is a tragic, but regular, predictor of later homicide.
I shall say a little about the legal aspects of the amendment and its drafting. In particular, I shall address the points raised at Second Reading by the noble Lord, Lord Anderson of Ipswich, who unfortunately cannot speak today but invites me to mention his continued strong support for the amendment and his gratitude to the Government for their commitment to taking the best possible technical advice to ensure its effectiveness.
The first point raised by the noble Lord was whether we ought to have a specific offence of non-fatal strangulation at all or whether a generic offence not confined to strangulation or suffocation would do as well. For the reasons so ably set out so far in this debate, strangulation and suffocation raise a particular issue because the violence involved is extreme and the consequences in terms of abuse and terror for the victims so serious, yet often there are very limited physical injuries to support a prosecution as a result. The New Zealand Law Commission, in its 2016 report Strangulation: The Case for a New Offence, accepted the case for a specific offence and recommended this approach. I understand that the former criminal law commissioner at the Law Commission, Professor David Ormerod, who generally favours generic offences rather than specific ones and so recommended in his 2015 on the reform of the 1861 Act, nevertheless sees a strong case for a new specific offence of non-fatal strangulation. I agree. As to the actual acts constituting strangulation or suffocation, the amendment closely follows the New Zealand legislation, the Family Violence (Amendments) Act 2018, which implemented the Law Commission’s recommendation, and there are no reports of any significant difficulties with the definition of which acts are required.
I turn to whether a new offence should be limited to the context of domestic abuse. Indeed, as the noble Baroness, Lady Newlove, explained, we are considering two versions of this amendment, one limited to domestic abuse and one general. My firm view is that the new offence should be generally applicable, as in Amendment 137, even though the evidence outlined by the noble Baroness, Lady Newlove, establishes firmly that this is generally an offence involving domestic violence. However, I fully agree with the noble Baroness that the new offence of non-fatal strangulation should not be confined to the domestic context, particularly not as limited by the constraints of the definitions in the Bill, under which a similar intentional act which did not meet the definition of domestic abuse would be left to the inadequacies of the pre-existing law.
I turn next to the difficult question of intent. The amendment as drafted now provides that A commits the offence if he “intentionally strangles or suffocates” B. In my opinion, the use of the word “intentionally” is correct and appropriate. It makes it a requirement that the prosecution demonstrate that the act of strangulation or suffocation—that is, blocking the victim’s nose, mouth or both, or applying pressure to the victim’s throat, neck, chest or more than one of these—is intentional. It does not require that the offender be shown to have a further intent of causing any particular type of harm to the victim. The necessary intention is what lawyers call a “basic intent”, rather than a “specific intent”. In my view, that is right because it is difficult to see an offender doing any of these acts without either intending to cause injury or being completely reckless about whether such injury is caused. It should not be a necessary element of the offence that the exact state of mind should have to be proved, and this follows the New Zealand Law Commission’s report.
However, when the New Zealand Parliament implemented that recommendation in that report, the word “intentionally” was supplemented by the words “or recklessly”. In my view, the addition of possible recklessness to the basic intent adds nothing, because it is hard to see the acts involved in strangulation or suffocation being unintentional. I suggest sticking to the word “intentionally” as included in the amendment.
The question also arises whether consent should be a defence against the new offence. In my view, it should not, and the removal by Clause 65 of the defence of consent to the infliction of serious harm for the purpose of sexual gratification points the way. I can see no merit in permitting a defence of consent, which would doubtless lead to frequent court disputes when the defence case would involve an assertion that the victim consented to her own strangulation. I cannot believe that that would be right.
On the last question raised by the noble Lord, Lord Anderson, the sentences proposed lie somewhere in the middle of the range applicable to similar offences around the world. They seem to me to fit in with our general sentencing guidelines. Setting maximum sentences is always an art and not a science. The sentences proposed are, of course, maximum terms of imprisonment, and actual sentences in practice always vary with the facts. However, this amendment seems to me to have the tariff about right.
Finally, our Law Commission and Professor Ormerod, with his wide experience in the field, have both been consulted as to the formulation of a new offence, and will continue to be so. Professor Ormerod has expressed his willingness to assist the Government and the House with further consideration of the details of a new offence before Report stage. I express the hope that the Government and we will take advantage of that generous offer.