Domestic Abuse Bill

Debate between Baroness Bertin and Lord Marks of Henley-on-Thames

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 3rd February 2021 Lords Chamber

[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.