Police, Crime, Sentencing and Courts Bill

Baroness Jones of Moulsecoomb Excerpts

Lords Hansard - part one & Committee stage
Monday 1st November 2021 Lords Chamber

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I enthusiastically endorse these amendments and thank the noble Lords, Lord Moylan, Lord Pannick, Lord Macdonald and Lord Sandhurst, for raising this crucial issue. The issue of non-crime incidents has been of concern to a number of us for some years and it is good that it is getting some parliamentary attention at last. I particularly credit those organisations and publications that have persistently raised it in the public realm and whose research informed my remarks, especially the Free Speech Union, of which I am on the advisory council, the anti-racist campaign Don’t Divide Us, and Spiked online.

Too many avoid the issue because it is rather tricky and contentious. One of the reasons it is difficult to raise is because nobody wants to look as though they are being soft on hate incidents. However, I am concerned that this in itself has led to a degree of chilling self-censorship and allowed some confusion to arise about what is and is not a crime when the police are involved.

When the public hear the phrases “hate”, “hate crime” or “hate incident”, they instinctively think of, for example, someone being beaten up because of their skin colour or being harassed in the street because they are gay, and they are appalled and shocked. We assume the worst kind of bigotry and our instinct is that something must be done. However, it is not so clear cut. According to the hate crime operational guidance issued by the College of Policing, hate crime is often an entirely subjective category, based on the perception of the alleged victim; I will come back to this.

What is extraordinary about the guidance on hate crime is what the police consider to be successfully tackling hate crime. The guidance says:

“Targets that see success as reducing hate crime are not appropriate”.


That completely befuddled me. The guidance says instead that the measure of success for the police is

“to increase the opportunities for victims to report”.

I fear that, in this act of enthusiasm to get more people to report hate, the police have muddied any clear distinction between what is criminal and what is not.

The focus on reporting initiatives led earlier this year to rainbow-coloured hate crime police cars patrolling local areas, with the aim of giving communities the confidence to come forward and report hate crime. However well-meaning, such awareness-raising initiatives often encourage people to come forward and report things that are not crimes at all. In fact, earlier this year, a police digital ad van trawled around the Wirral, warning that

“being offensive is an offence”.

Actually, being offensive is not a criminal offence. After a backlash, local police clarified that this was an error. Why did the police get it so wrong in terms of what is a crime?

This is not an isolated incident. A few years ago, Greater Glasgow Police tweeted an ominous warning:

“Think before you post or you may receive a visit from us this weekend.”


This was posted alongside a graphic that warned social media users to consider whether their treats were true, hurtful, unkind, necessary and then, right at the end, illegal. Then there was the South Yorkshire Police Hate Hurts campaign, which asked people to report any “offensive or insulting” social media posts to police officers. None of these is a crime and, in relation to a Bill named the Police, Crime, Sentencing and Courts Bill, it is a concern if the police do not know what is or is not a hate crime, so much so that Cheshire Constabulary recently admitted to conflating crime and non-crime in its hate crime statistics.

This amendment can potentially start unpicking this muddle, because the source of the confusion about what is or is not a crime lies in the creation of the category of non-crime hate incident. As we have heard, this category was established by the College of Policing and its guidance encourages police officers to overreach and police non-crimes. It is worth telling noble Lords how this is posed in the guidance. The NCHI guidance states:

“Where it is established that a criminal offence has not taken place, but the victim or any other person perceives that the incident was motivated wholly or partially by hostility, it should be recorded and flagged as a non-crime hate incident.”


Note the use of the word “victim” to describe the reporter or accuser, when no evidence exists that any crime has been perpetrated against him or her. The victim has to claim only that some action or speech was

“motivated wholly or partially by hostility”.

“Hostility” itself is a vague and subjective term. The guidance continues:

“The victim does not have to justify or provide evidence of their belief, and police officers or staff should not directly challenge this perception.”


Furthermore, any other person’s perception can be the basis for this, which is even further removed from any real incident, let alone crime.

Finally, the guidance notes:

“Police officers may also identify a non-crime hate incident, even where the victim or others do not.”


Why? It is because:

“Victims … may not be aware that they are a victim of a non-crime hate incident, even though this is clear to others.”


I find this a kind of dystopian, Orwellian, nightmare world. Imagine untangling your way through that; your name, unknown to you, can appear on a database intended for recording details of criminal offences and be subject to checks by vetting officers when you apply for jobs, as we have heard from noble Lords.

I hope noble Lords can see the dangers here. The subjective nature of the NCHI guidelines creates a real possibility of abuse of the system by people acting in bad faith. The NCHI guidance means that unfounded, spurious and malicious reports can be filed and never tested, let alone the fact that this data gathering distracts the police from pursuing real criminals. I was contacted by one person ahead of this debate, who said, “I had a visit from the police because a member of staff offended another member of staff, who works for me. No crime was reported. The police spoke to me for 40 minutes. In the meantime, the 200 pallets that I reported stolen the week before did not generate a phone call or visit.” Then there is the chilling effect of NCHIs on free speech, as other noble Lords have vividly spelled out. NCHIs can act as a threat, a kind of surveillance of free speech, by people who say it will eventually lead to crime. Anyone who is following the fate of gender-critical feminists, who are constantly accused of hate by a particular brand of trans activist, will understand just how damaging that is to free speech.

This Government tell us all the time that they are keen to oppose cancel culture. I fear that these NCHIs inadvertently contribute to that censorious climate of denunciation and the toxic climate of hate, which we are all keen to combat. I therefore urge the Government to consider these amendments carefully and remove this contradictory anomaly, which, I fear, brings the police and criminal law into disrepute.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I was not going to speak on this, because there are much bigger issues coming up later, but I had seen this in a reverse way. It is not completely clear, if you do not have a QC’s training or legal training of any sort, whether this amendment is trying to help or hinder the collection and retention of data.

To me, this seems like a good opportunity to talk about misogyny and other abusive behaviour that falls short of a criminal offence but none the less should be recorded on a person’s police record. The biggest benefit of retaining that data is that it might help in the future investigation of criminal offences. For example, if someone is a notorious misogynist but it has never reached the threshold of criminality, this will help the police’s line of inquiry if said person is later a suspect in a violent attack against a woman. As we all know, the justice system is biased very strongly against women committing crimes.

What I did agree with from all those offering support for the amendment is that proper oversight is absolutely necessary. There should be some regulation about this, because some of the anecdotes mentioned seem ridiculous. I still have not decided whether I support this; it would depend on how it dealt with proper oversight.

--- Later in debate ---

[Baroness Jones of Moulsecoomb (GP)]

My Lords, this is slightly more complex than one might have thought. I thank the noble Lord, Lord Beith, for laying out the nonsensical way in which at the moment we exclude all the other categories. I do recognise the value of what the Government are trying to achieve in Clause 45: it is important that we stop predators from abusing positions of trust to prey on children and vulnerable people.

I also note, as no doubt the Minister will point us to, that this clause includes a Henry VIII power to add to or remove positions of power from the specified list. I normally loathe Henry VIII powers—I think they are extremely dangerous—but obviously I am weakening on this one.

It is also important not to cast the net of this offence too broadly or to define it too narrowly. I find it much more complex than when I first signed the amendment. There must be a level playing field, and a sports instructor should not be held to a higher standard or treated as a greater offender than, say, a dance tutor, because abuse of children is abuse and that is what we are trying to deal with here. I hope the Minister will work with your Lordships’ House to put together an amendment with which we are all happy.

[Earl Attlee (Con)]

My Lords, my task in this debate is easy: all I have to do is to support the noble Lord, Lord Beith, and say that I have rarely heard an amendment moved more comprehensively than he just did.

--- Later in debate ---

[Lord Paddick (LD)]

My Lords, in moving Amendment 113 in my name I shall speak also to the other amendments in this group. I declare an interest as a Liberal Democrat and someone generally against sentence inflation, but I have specific points to make on this clause.

Clause 46 effectively increases the maximum penalty for “destroying or damaging” anything by fire, or for any offence involving damage to a memorial, which means something “erected or installed”, or

“a garden or any other thing planted or grown which has a commemorative purpose”,

whether it is the statue of a national hero or a slave trader, a person’s grave or a pet cemetery. The clause does this by removing the financial limit on when the case can be tried at, or sent to, the Crown Court for sentence. Magistrates’ courts cannot send someone to prison, I believe, for more than a maximum of 12 months, but a Crown Court judge can send someone to prison for criminal damage where there is no threat to life for a maximum of 10 years.

To put this into context, Clause 2 of this Bill, as drafted, increases the maximum penalty for assaulting an emergency worker from one year to two years, while this part of the Bill increases the penalty for damaging a memorial from one year to 10 years. It is clear where the Government’s priorities lie; it is more important to protect a statue of Churchill than it is to protect our brave men and women police officers.

It gets worse. New subsection (11B) of Section 22 of the Magistrates’ Courts Act 1980, inserted by Clause 46, includes

“any moveable thing (such as a bunch of flowers)”

left in or on a memorial, as part of the memorial—so, a maximum penalty of 10 years in prison for damaging a bunch of flowers. Pick up a bunch of flowers placed at the feet of Churchill’s statue and hit a police officer round the face with it, and you can get up to 10 years in prison for damaging the flowers but only two years for assaulting the police officer. Amendment 113 is designed to probe the proportionality of subsection (11B). Amendment 114 is consequential.

In fact, bearing in mind that the limit for a summary-only trial—at least in the original Bill, and I cannot find any amendment to it—is £200-worth of damage, to replace, repair or restore the property damaged, it is unlikely that anything other than minor superficial damage would be below this value. There may well be a case to treat graves as a special case, where it can be deeply distressing if the burial plot is disturbed, but, aside from that, I am yet to be convinced that Clause 46 should stand part of the Bill, at least in its current form.

There is far more merit in protecting the living, as Amendment 115 proposes to do, than in protecting the memorials of the dead. Damaging life-saving equipment is a very serious matter, and there is far more merit in this amendment than in Clause 46.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I rise to support these amendments. We are now getting into the stuff that I will fight tooth and nail over. As an archaeologist and activist, I feel that I have a little bit of insight into this whole situation and perhaps into the ridiculous law that the Government are trying to introduce here. Instead of debating and discussing it and coming to a sensible resolution, this is part of a battle in a culture war, which is absolutely ludicrous.

History is important, but it is not fixed. People like to think that we all know what it is and it is in all the books, but, actually, as an archaeologist, I know that we reinterpret it all the time and are constantly making new discoveries. Just in the last week or so, we found Roman statues in a totally unexpected place. This is what happens: we change our minds about history and it gets rewritten.

The problem is that we have some very ugly history, which is littered with powerful and wealthy white men who, behind a thin veneer of toffish respectability, did some quite nasty things and were responsible for atrocities such as the enslavement of millions of people, genocides, war crimes and the grabbing of wealth from some of the many nations that we now call “developing nations”. Our statues ignore this history and pretend that it was benign and that these were good guys, which is simply not true: they were slavers and pillagers, and we ought to recognise that. Having their so-called heroism set in stone is actually quite offensive. There is no hint in many of these statues that they did some evil deeds.

People—many members of the public—do not like this, and they are showing their dissatisfaction with celebrating people who really should not be celebrated. They raped and pillaged, and the fact that they then spent a lot of money on universities, libraries or parks does not really make it all all right. So the question of what we should do with these monuments is important, but not easy. It should force us to confront the evils within our history and reflect on how they carry through to the social and economic conditions of our present.

Instead of leading on this quite important dialogue, the Government simply storm in with a new criminal offence, which I find so ludicrous that I feel I ought to go and speak directly to the Home Secretary about it. They are trying to put their fingers in their ears, sing “Rule Britannia” and pretend that all of this did not happen and that it was all okay—but it was not. Councils all over the country and the Government have to realise that statues are not something that we cannot change or remove. The fact is that some of these statues celebrate evil deeds, and the Government should recognise that.

I have more to say, if noble Lords wish.

[Lord Falconer of Thoroton (Lab)]

I apologise for not standing up promptly—I was expecting the noble Baroness to say more. I will deal with two issues in relation to this group. First, I will deal with the points made by the noble Lord, Lord Paddick, in relation to what is in effect an increase in the penalty for certain sorts of criminal damage. We on this side completely understand that certain sorts of criminal damage—for example, to the gravestone of a much-revered and loved person—that cause very little financial damage nevertheless absolutely cut to the heart of a community or an individual. Our view is that it should be possible, in certain circumstances, for that to be dealt with somewhere other than a magistrates’ court.

This absolutely over-the-top provision is not necessary to ensure that something like that, which does merit a Crown Court trial, should be dealt with in the Crown Court. I would have thought that a much more targeted amendment could have dealt with that, but this, which deals with absolutely every sort of thing, is unnecessary. You do need a provision to make sure that protection is provided in relation to things that are deeply offensive, such as the desecration of a grave—but, beyond that, the law works, by and large.

I also agree that a lot of thought has gone into this, but there is practically nothing in the Bill—except for one or two increases in sentences for violence—that deals with the protection of women and girls. Instead, there has been this very complicated provision. But, as I say, we accept that it will be appropriate in certain cases to allow for a trial in the Crown Court.

Our Amendment 115, which comes after Clause 46, is designed to deal with a practical issue in relation to criminal damage: the effect of vandalism on safety equipment. This amendment was moved in the other place by Sarah Champion MP, and it reflects a campaign that has been run by Simon and Gaynor Haycock, whose son, Sam Haycock, went swimming in Ulley reservoir in Rotherham in May 2021, on the very day that he finished school, aged 16. He went to help a friend who was in trouble. At the reservoir, a throw line that has a safety belt on it, which you can throw into the water to try to assist someone, is behind a locked cupboard. You can access the throw line only by ringing 999 and getting a PIN number from the police in order to get the line out. The delay in getting the throw line out may well have had tragic consequences on this occasion. The reason that it is behind a locked door with a PIN number is because of the vandalism of safety equipment. I wonder whether the Government could spend their time focusing on something that has a practical effect, rather than engaging in rather divisive culture wars. I very much hope that the Minister will feel able to say something to help Simon and Gaynor Haycock in their campaign.

The amendment proposes that it is made a specific offence to intend

“to destroy or damage any property which is considered life-saving equipment, including life-belts, life jackets, or defibrillators.”

Of course, it would already be an offence to do that, but it matters a lot to indicate that this is something that the law regards with particular hostility because it costs lives, including the life of Sam Haycock. I very much hope that the Haycock family will hear good news from the Minister tonight.

Police, Crime, Sentencing and Courts Bill

Baroness Jones of Moulsecoomb Excerpts

Committee stage & Lords Hansard part one
Wednesday 20th October 2021 Lords Chamber

I know from bitter personal experience how devastating prolonged periods under misconduct investigation can be, and the impact it can have on your career, your health and your loved ones—even more so when you know that you have done nothing wrong. This amendment simply gives independent oversight of misconduct proceedings by legally qualified, experienced misconduct hearing chairs to hold the police and the IOPC to account to ensure that these matters are concluded without unreasonable delay. I beg to move.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, it has been fascinating and very moving to listen to the noble Lord, Lord Paddick, but I am coming at this from a completely different direction. Although I am partly thinking about the police officers involved, I am also thinking about people who bring complaints against police officers. I have seen the police complaints system at first hand. At some point in the past, a Met Police sergeant came to me and told me that he had seen a few officers deleting files that the Met held on me. These were files that I had asked to see and had been told did not exist—so I saw the police complaints system at first hand. I took a complaint to the Independent Office for Police Conduct, a vastly underresourced organisation trying to do its best on very difficult work. This was not an emotional issue for me—it was a professional, work issue—but that Met Police sergeant suffered PTSD and was essentially hounded out of the Met Police because he had come to me as somebody who wanted the truth exposed, and so was in a whistleblowing situation. I could not do anything for him, but I persisted with my complaint.

There is a saying that justice delayed is justice denied, and it is true on both sides—perhaps more when people are emotionally involved in the complaint they are making, which as I say did not really apply to me. In a way it is doubly true for complaints against the police, because there is a power imbalance. The police are seen to retain their positions, authority, power and legitimacy while complaints are ongoing, and this can be extremely upsetting.

This issue has come to light because of the allegations against the murderer of Sarah Everard. It is staggering, and truly terrifying, that the police had within their ranks somebody they knew, jokingly perhaps, as “The Rapist”. A noble Lord from this House, a previous Metropolitan Police Commissioner, who is not in his place today, said in an interview on the radio that it was not true that he was called “The Rapist”—but he is the only person I have heard saying that was not true. Perhaps another ex-Metropolitan Police Commissioner here might know better.

So it is time to cut the delays that everybody on both sides experiences in police complaints and disciplinary hearings and, most importantly, to give the independent watchdog the resources it needs to do the job. I have complained in the past about the number of police officers it employs, because it seems to me that you do not necessarily set a police officer to catch a police officer—but in fact it is so underresourced that I feel it would benefit from almost anybody if it increased its staff. So this is something that the Government have to deal with.

[Lord Hogan-Howe (CB)]

My Lords, I support this amendment. The basic problem around IOPC investigations is one of timeliness and quality. I am afraid it has gone on an awful long time. To be fair, from time to time it concerns police investigations under other bodies, but it has persisted, despite the fact that the organisation has changed over the years from the IPCC to now the IOPC. This particularly affected groups of officers such as firearms officers, some of whom have been under investigation for in excess of 10 years. That cannot be for anyone’s good.

We talked earlier about the trauma suffered by individual officers, and that is one of the major causes of such trauma. I therefore think that some time kind of time limit would be helpful. Even in a criminal case such as murder, the point from commitment to arriving at Crown Court is expected to be of the order of 100 days. If such a complex case can be taken so quickly, it seems to me that these cases are surely susceptible to travelling far more quickly and then being decided in the hearing far more quickly, too.

There are some peculiarities around the police misconduct process which have to be understood and, I think, given some sympathy—but these things can be changed. For example, when a complaint is made, particularly where a criminal allegation is alleged, there is a transmission of the case, first from the force to the IOPC, then it may go to the CPS, and then it may go back to the IOPC and then it may go to the force. This merry-go-round goes on for months. It is not at all unusual for these cases to go for at least one year and usually more, and for there still to be no outcome.

There is a further level of complication when, for example, special evidence needs to be given in a court case. It is difficult to talk about this in public, but essentially, when intelligence is gathered by the police that cannot be shared in court and cannot be shared in a coroner’s court, a public inquiry has to be held in front of a qualified judge. All this does is lengthen the whole process. It particularly affects firearms officers when they have to justify why they shot someone and they are unable to explain the intelligence they received. It means that the whole process goes round this rigmarole again.

There are various remedies to try to resolve this. One is a simple time limit. The difficulty with a time limit is that it can be hard-line and does not fit every case. Sometimes you need some discretion. I would argue that the decision-making between the IOPC, the CPS and the force should be done in parallel and not in sequence. The consequence of it being done in sequence is that it keeps going on and on and they keep referring it back to each other. Surely, they could consider the same case in parallel and therefore reduce the time. It would be a good idea to have a legally qualified chair seriously examining the timeline and whether or not it is justified. If it is not justified, the chair should be able to intervene. If it is justified, of course the case should continue.

My final point may be to one side of the amendment, but it is important because it goes to the point about timeliness and quality. One of the challenges faced by the IOPC is that it does not always send its most experienced investigators to deal with the most complex cases. The equivalent for the police service would be that you never send your shoplifting squad to deal with a murder—that would not be very sensible. Officers build their experience in the shoplifting squad and may go on to do more complex things.

The reason may be, as the noble Baroness, Lady Jones, said, that the IOPC has insufficient resources. I think it also has insufficient specialism and does not build up its expertise. When a serious case comes in—someone loses their life or it is a serious allegation—they should dispatch the A team, not the people who happen to be available. I do not think that does anyone any good when they have to deal with serious matters which the families want straight answers to and the officers want to believe that the investigators have some maturity of judgment. It is not a matter of age but a matter of experience. For those reasons, the IOPC should consider this. It is not exactly pertinent to the amendment, but it is relevant to the discussion about quality that we can fairly have about IOPC investigations at the moment.

Criminal Justice System: Equal Treatment of Deaths and Injuries

Baroness Jones of Moulsecoomb Excerpts

Thursday 24th June 2021 Lords Chamber

Asked by

[Baroness Jones of Moulsecoomb]

To ask Her Majesty’s Government what steps they are taking to ensure that the criminal justice system treats deaths and injuries caused by motorists equally to those not caused by motorists.

[The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)]

My Lords, where there is evidence of an intention to kill or cause serious injury, offences committed by motorists will be prosecuted in the same way as other homicides or assaults. However, in the context of driving it is often difficult to ascertain the driver’s state of mind or intentions. That is why the law contains additional road traffic offences that consider an objective test of the standard of driving, rather than the driver’s subjective intent.

[Baroness Jones of Moulsecoomb (GP)]

In 2014, a man travelling at 80 to 88 miles per hour in his car drove straight at the traffic officer who tried to flag him down to stop him. The killer made no attempt to swerve or to slow and he threw PC Duncan into the air like a ragdoll, leaving him with fatal injuries. The starting point for murdering a police officer with a knife or an iron bar is 30 years; this driver got an eight and a half year sentence. Is that justice?

[Lord Wolfson of Tredegar (Con)]

My Lords, first, I acknowledge the gravity of that incident and we should pay our respects to the police officer’s family, remembering the work that police officers do, day in and day out. However, one has to distinguish the road traffic offence from the consequences. In that case, if there were sufficient evidence to prosecute for murder or manslaughter, that prosecution should have been brought. I know that the CPS does bring those charges when there is evidence to support them and sufficient likelihood of a guilty verdict.

Queen’s Speech

Baroness Jones of Moulsecoomb Excerpts

Tuesday 18th May 2021 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I welcome the noble Baroness, Lady Fullbrook, and I hope that she enjoys her time in the House as much as I do. I listened with great interest to the Minister, who delivered, in his usual emollient way, all these incredibly nasty pieces of legislation that the Government are bringing in. Although I will try to stay coherent as I speak, I am actually spitting with fury, so I ask for that to be taken into account.

We have to understand that there are a lot of Bills in this Queen’s Speech, and, given that this is the third Speech of the Prime Minister in two years and that most of the legislation that he has announced has not actually happened—sometimes it is on its third, fourth or even fifth iteration—I am staggered that there are so many Bills in it. Again and again, the really important stuff, like the Environment Bill, gets put off, which will be very embarrassing when we come to COP 26.

However, of course, the Government always find time for the really nasty bits of legislation, like the spy cops Bill and the overseas operations Bill. I worry about this trend of the Government, which is why I have chosen to speak today, on the topics of crime and justice and home affairs, because this is where the Government do some of their worst work.

Much of the proposed legislation is designed to fight political proxy wars, rather than trying to improve people’s lives and create a better future, which is probably what the Government’s job is. For example, the electoral integrity Bill is an excuse to make it harder for people—particular people, not just any old people—to vote, while giving the Conservative Party more power in an attempt to extend the life of this Government, possibly for decades.

The Higher Education (Freedom of Speech) Bill seeks to put financial penalties on universities and student unions for not wanting to listen to speakers with fundamentally stupid ideas. I do not understand it, and it gets a bit confusing when the Government, apparently so concerned about free speech, are also bringing in a Bill designed to criminalise and ban free speech and the right to protest—because protest is free speech. As such, we are being asked to crack down on free speech in one Bill but to force people to listen to speakers whom they fundamentally disagree with in another. It will be very interesting to see, over time, just how this plays out in court and how these two pieces of legislation interact.

Next up on the nasty list are the Government’s plans to make it harder for people to claim asylum and refuge, which are horrendous and plain cruel at a time of such global instability—much of which we have caused —especially because global migration will increase. We will carry on trashing the planet and will make huge areas uninhabitable, and, as we continue to sell weapons to tyrant regimes and war criminals, there will be more political instability in all sorts of countries. We are responsible for a huge number of the people who come to this country seeking refuge, and we should accept that and that it is our duty to make them welcome.

There are some important pieces of legislation tucked into the Speech, but I feel that those are the ones that will fall through the cracks and that we will probably not get around to. This is very distressing because it will be the most regressive laws that come through and that the Government support. This is really appealing to the darkest parts of human nature and it is not good for our collective psyche, not just here in the House but in the wider society. As such, I promise you strong and relentless opposition.

Domestic Abuse Bill

Baroness Jones of Moulsecoomb Excerpts

Wednesday 21st April 2021 Lords Chamber

[The Lord Bishop of Gloucester [V]]

My Lords, I support this amendment, tabled by the noble Baroness, Lady Kennedy. In Committee and on Report, I spoke in favour of amendments to this Bill that proposed a statutory defence of domestic abuse, recognising the significant number of women coming into contact with the criminal justice system who have experienced domestic abuse and previous trauma, and how that becomes a driver for their offending. I do not want to repeat all that the noble Baroness has said, but I will highlight again the statistic of almost 60% of women supervised in the community or in custody who have an assessment have experienced domestic abuse—and the true figure is likely to be much higher.

Regrettably, these amendments have not been included in the Bill, and I therefore strongly support the call to hold an independent review of the effectiveness of existing defences, as proposed by this amendment.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I had a few calm sentences worked out in response to this Motion, and completely scrapped them once I read the Commons disagreement amendments in lieu and reasons, because the reasons that the Commons have given for rejecting our amendments are absolutely pathetic.

I disagree strongly with the noble Lord, Lord Randall of Uxbridge, of whom I am very fond, when he says that non-lawyers should not get involved in lawyerly debates. Here in your Lordships’ House I see lawyers arguing ferociously about tiny issues on opposite sides of the Chamber. Lawyers often do not agree, and therefore at times we have to have some common sense.

--- Later in debate ---

[Baroness Jones of Moulsecoomb (GP)]

I asked about a date.

Domestic Abuse Bill

Baroness Jones of Moulsecoomb Excerpts

3rd reading
Wednesday 24th March 2021 Lords Chamber

[Baroness Jones of Moulsecoomb (GP)]

My Lords, in the seven-plus years I have been in your Lordships’ House, I have been involved in a lot of Bills but this is the first of its kind. There was never one like this, because it has been special. The Bill was universally welcomed but then attracted about 200 amendments, which were fiercely argued. The Government suffered nine defeats in votes and made many concessions. There are still gaps. Other noble Lords have listed them but, for example, there is the Istanbul convention. However, the process has turned a good Bill into a very good Bill.

For me, making misogyny a crime was a priority. I am deeply sad we have not done that but we have moved towards it, and it is a step in the right direction by the Government which we can use to test the process. The Minister said something about this showing your Lordships’ House at its best, but I would argue the Bill shows the Government at their best as well. I wish this were the pattern with all Bills—that this House does its stuff and the Government listen. That would mean we produced much better legislation every time. On behalf of the noble Baroness, Lady Bennett of Manor Castle, and myself, I thank the Ministers for all their hard work and co-operation. I say a big thank you to the noble Baroness, Lady Williams of Trafford, and the noble Lords, Lord Wolfson of Tredegar and Lord Parkinson of Whitley Bay. It has been an experience, and I think it has worked wonders.

Independent Office for Police Conduct

Baroness Jones of Moulsecoomb Excerpts

Tuesday 16th March 2021 Lords Chamber

[The Lord Speaker (Lord Fowler)]

I call the noble Lord, Lord King of Bridgwater. No? I call the noble Baroness, Lady Jones of Moulsecoomb.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, in my activist world I hear a lot of complaints against the IOPC and its previous incarnation. I am curious about the fact that a lot of former police officers work there as investigators. It has been suggested that the IOPC does not investigate as thoroughly as it might because it has too many former police officers. Has the Home Office paid any attention to that?

[Lord Wolfson of Tredegar (Con)]

My Lords, one must have a balance. If you are going to investigate the police, you need some people in your organisation who have the skill set to know how the police operate. The figures are these. Overall, 23% of IOPC staff are former police officers—that is 28% in operations. However, first, they do not investigate their former force; and secondly, most senior decision-makers are not former police officers. By law, the director-general cannot be a former police officer, and the current director-general has put in place a practice that the two deputies are also not former police officers.

Domestic Abuse Bill

Baroness Jones of Moulsecoomb Excerpts

Report stage
Wednesday 10th March 2021 Lords Chamber

[The Deputy Speaker (Baroness McIntosh of Hudnall) (Lab)]

The noble Baroness, Lady Goudie, has withdrawn, so I call the noble Baroness, Lady Jones of Moulsecoomb.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, having listened to other speeches from noble Lords, I realise that the comments that I have prepared are far too mild. I was just going to congratulate everyone who has campaigned and fought for proper provision and thank the Government for working constructively. It is not often that I find myself on the mild end of things. I think that there is now a clear understanding of the need for community services, including supporting survivors of domestic abuse in their own homes. I feel strongly that the abusers should have to leave and not the survivors. The Green group is very supportive of Amendment 85 from the noble Lord, Lord Rosser. I am sure that we will come back to it at another time in another place. In the meantime, well done everyone.

[Baroness Sanderson of Welton (Con)]

My Lords, it is an honour to follow the noble Baroness and her mild comments. I will speak to and welcome Amendments 17, 24 and 28. As we have said many times before, this was already a very good Bill. I thank the Government and particularly my noble friend Lady Williams for the lengths to which she has gone to improve it further. She has been unstinting in her determination to address many of the outstanding issues, always putting the victims’ needs first. With these amendments, I believe that the Government have addressed the potential unintended consequences of a two-tier system.

The Government are wary of specifying what the independent commissioner should and should not report on, and I agree with them. The Minister has also made the point that the commissioner is already undertaking the relevant mapping exercise. None the less, Amendment 17 sends a signal about the importance of community-based services. Together with the requirement for local authorities to assess the impact of the duty under Part 4 and the further requirement, via Amendment 28, for local partnership boards to advise on other local authority support, I believe that this provides a robust and, importantly, ongoing mechanism and structure for ensuring that community-based services are not adversely affected by the duty.

I welcome the Government’s commitment to consult on the provision of community-based services and congratulate my noble friend Lord Polak on all the work that he has done in this area. I also welcome the amazing number of charities and stakeholders that have welcomed these amendments. As I have said before, I understand why the Government cannot extend the duty in this Bill. On this issue and so many others, they have come forward with significant changes. They have moved where they can and altered their position in areas where we thought that they would not.

I realise that I am still relatively new to this House. I also realise that no Bill will ever be perfect and that noble Lords will fight for the changes that they think are right, but this Bill has cross-party support, and for very good reason. It will create a genuine step change in the way we tackle domestic abuse. It has already raised so much awareness. Someone who works on the front line said to me on seeing the raft of government amendments:

“You should see the amazing survivor messages I’m seeing this morning. I’m quite emotional seeing their excitement. We feel the tide is turning.”


The tide is turning but, as we all know, we have only a limited period to get this Bill through. I believe it is now up to us to bid it safe passage.

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, I will keep my remarks short, in view of the amount of work to get through today. I congratulate the noble Baroness, Lady Newlove, who has shown the most incredible tenacity to get to this point. It is absolutely amazing, and an example to us all. Also, if I can say this without sounding anodyne or even boring, I congratulate the Government on picking this up. It was the right thing to do, and I am delighted. It opens the way for survivors of domestic abuse to seek justice and have a legal pathway to see their abusers punished. In later amendments, I will pick up on other areas where women are legally discriminated against very seriously, but for the time being, this is a fantastic move by the Government.

[Lord Blunkett (Lab) [V]]

My Lords, in view of the pressure of time, I shall be brief, but I could not allow this amendment to pass without congratulating all those who have played such a significant part. The noble Baroness, Lady Newlove, has shown enormous tenacity. There are times in all our parliamentary, public and political lives when we suddenly realise that we can make a real difference to the well-being, and in this case the lives, of others. I congratulate her from the bottom of my heart. I pay tribute to those whom she generously paid tribute in her speech, and also to her co-signatories, my noble friend Lady Wilcox and the noble Baroness, Lady Meacher, who have stuck with this all along.

Unusually for these Benches, I congratulate, as my noble friend Lord Hunt did, the two Ministers, who have been assiduous in their preparedness to listen, respond and be flexible. This is the House of Lords at its best. Parliament is at its best when people listen to each other, where divides are narrowed and overcome, and where people of good will are prepared to find a way forward in the interests of the people whom we seek to serve in the country as a whole.

I have played a very small part in this, but I like to think that the Minister, as I said to him on another occasion, would not wish to put his parliamentary colleagues in the House of Commons in the invidious position of voting down such an important and critical measure. He certainly listened, as have the Government. Will we be able to do so on other issues?

Today there will be many votes. It should not diminish the importance of the Bill that we have continuing issues to raise, because this is a really important piece of legislation. I have one thing to put on the record on the statistics that the noble Baroness, Lady Newlove, gave us this afternoon. This is about power and domination, never about love. It is about people who are prepared to use their manhood for ill, not for good. It is about inadequates who then inflict their inadequacy on the people they claim to love. If we can put that message out to young men in particular, we will have done a very proud job of work this afternoon.

I thank the noble Baroness, Lady Newlove, for what she has done. Many people will have cause to thank her in years to come.

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Moved by

[Baroness Jones of Moulsecoomb]

42: After Clause 64, insert the following new Clause—
“Proceedings under the Children Act 1989
(1) Part I of the Children Act 1989 is amended as follows.(2) In section 1 (welfare of the child) after subsection (2B) insert—“(2C) Subsection (2A) shall not apply in relation to a parent where there has been domestic abuse which has affected the child or other parent.(2D) Evidence of domestic abuse may be provided in one or more of the forms accepted as evidence for legal aid, as per guidance issued by the Ministry of Justice.”(3) Part II of the Children Act 1989 is amended as follows.(4) In section 9 (restrictions on making section 8 orders) after subsection (7) insert—“(8) No court shall make a section 8 order for a child to spend unsupervised time with or have unsupervised contact with a parent who is—(a) awaiting trial, or on bail for, a domestic abuse offence;(b) involved in ongoing criminal proceedings for a domestic abuse offence;(c) is pending a fact finding hearing or has been found to have committed domestic abuse in a previous fact-finding hearing; or(d) has a criminal conviction for a domestic abuse offence.(8A) In subsection (8)—“unsupervised” means where a court approved third party is not present at all times during contact with the parent to ensure the physical safety and emotional wellbeing of a child;“domestic abuse offence” means an offence which the Crown Prosecution Service alleges to have involved domestic abuse.””Member’s explanatory statement
This amendment seeks to prevent domestic abusers from being granted unsupervised contact with children in family law proceedings.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I had to bring this amendment back on Report, because I did not think that the Minister accepted the issues in Committee. They are important: domestic abusers are being granted unsupervised contact with children as a result of an ingrained pro-contact culture. The Ministry of Justice’s own harm review concluded that “the dominance of contact” is seen

“as excluding other welfare considerations, including the child’s need for protection from abuse, or the child’s wishes and feelings.”

Rather than seeing contact as a means to an end and weighing it up against all the harm and damage that an abusive parent has caused, it is seen as the end in itself, almost no matter what the cost. That is deeply harmful.

The debate on parental alienation on Monday showed just how embedded some of these ideas have become. Wanting to exclude an abusive parent can itself be labelled as abusive. Abusive men, in particular, falsely claim that abuse is mutual and reciprocal, and try to label the victim as a fellow perpetrator. As the Minister said on a previous group, an abuser will pursue their victim through the family courts to try to force contact with their child, not because they care, but because it is an extension of their coercive and controlling behaviour and their fury that their victim has managed to escape them. So, the abuse continues through the courts and then into unsupervised contact. More than a dozen children have been murdered by their fathers during unsupervised contact. Can the Minister please tell me what the Government are going to do to stop it?

[Baroness Fox of Buckley (Non-Afl)]

In my short time in this House, I have been hugely impressed by the fairness, clarity and reasonableness of the noble Baroness, Lady Jones of Moulsecoomb—that might be bad for her reputation—even when we have not agreed. However, in this instance, I am sad to say that I cannot find anything reasonable in this amendment, but it raises some broader issues about the Bill that worry me, so I will make those points.

This amendment effectively argues for denying the right to be a parent to anyone accused of the offence of abuse. In listing those who will be denied unsupervised access to their own children, we have those “awaiting trial”, “on bail” or

“involved in ongoing criminal proceedings”,

all of which—as anyone who knows anything about the criminal justice system knows—can involve months or years of one’s life. That would mean that innocent people, accused, are already treated as guilty.

Of course, we all want to protect children from any risk and, as the noble Baroness has illustrated, those horrifying stories of children being hurt or even killed, sometimes as revenge, are at the forefront of our minds, but I have two points. The amendment refers to ensuring the

“physical safety and emotional wellbeing of a child”.

Those are two distinct threats. The latter, at least, is difficult to pin down. I argue that being deprived of time with one’s parent, free from a court-approved third party, could also be the cause of considerable emotional distress for any child. It could be a recipe for the parental alienation that she mentioned.

Secondly, even the prospect or fear of a threat to physical safety cannot distort our sense of justice or lead to disproportionate or punitive measures in a risk-averse “what if?” scenario. It could too easily lead to the state unjustly alienating children from a parent who is accused but not found guilty. Surely, evidence and facts are key to establishing the level of threat. I note that the amendment would deny unsupervised contact

“pending a fact finding hearing”,

which makes a mockery of establishing facts and tears up any commitment to factual evidence as an important part of judging whether an accused parent can be trusted to care for or parent their children without third-party supervision.

I am even worried that this amendment argues that unsupervised contact would not be allowed for anyone with a “criminal conviction” for abuse. Granted, in this instance the evidence has been weighed and facts established, but consider the implications of this. This amendment would mean that someone found guilty of abuse perhaps when as young as 18 could find themselves, at the age of 38—by now, we hope, a reformed character in a different set of circumstances, maybe no longer drinking, on drugs or mentally ill, as we have heard today, or just shame-faced about their younger self’s abusive behaviour—still denied unsupervised access to their children. To be honest, that seems ungenerous, even barbaric and vengeful. It suggests that we are branding people found guilty as perpetrators with the letter “A” for abuser, for ever.

We also heard earlier that one can gain a criminal conviction for abuse by breaching a domestic abuse order. That breach might be for a relatively minor offence. I worry that aspects of this amendment encourage a lack of perspective and a disavowal from making judgments of different threats. The Government continue to stress that they do not want a hierarchy of abuse or harm—we have just heard the Minister discuss that—but this can lead to a muddle when it comes to parental contact. I want to discourage a lazy, one-size-fits-all approach. When considering risks to children, there is a distinction between, for example, the perpetrator of regular, systematic violence or coercive control and the particular emotional or psychological abuse that one partner might inflict on another in a toxic relationship. The latter may be worse than horrible if you are at the receiving end of it, but it may never be aimed at or even witnessed by children.

To conclude, I urge the Government to maintain the presumption of parental contact. It should be curtailed or removed only with great care. That does not mean putting children at risk, but it means holding justice dear.

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I am grateful to all noble Lords who have spoken in this short debate but, for the reasons that I have explained, the Government’s position remains unchanged on this issue. We believe that we should wait for the outcome of the review on the presumption of parental involvement before any decisions are taken on whether changes are required either to the presumption of parental involvement as a principle or to its application. To that extent, as I understood it, the position that the noble Lord, Lord Rosser, has arrived at—although he started at a different point to me—is much closer to the Government’s position. I am grateful to hear that from the noble Lord, and I therefore invite the noble Baroness, Lady Jones, to follow that lead and withdraw her amendment.

[Baroness Jones of Moulsecoomb (GP)]

I thank all noble Lords who have spoken in this short debate. I listened very carefully but did not hear anyone offer any other solution. Children are dying. Noble Lords said again and again that the current situation was not working, but still no one has come up with a solution. I take the Minister’s comments about waiting for the review, but during my political career, which has only been 20 years long, I have found that repetition works extremely well, so I repeat to him that we have to find a solution because people—children—are dying.

The noble Baroness, Lady Fox of Buckley, gave us a “what if” situation; obviously I could also do that, but I will not. Again, I am trying to save children’s lives; I did not hear any other solutions. The noble and learned Baroness, Lady Butler-Sloss, said that the amendment is too rigid, which I accept, but judges and magistrates are getting it wrong and children are dying. I thank the noble Baroness, Lady Uddin, very much for her support from her experience. She described unsafe decisions and she put my case better than I could.

The noble Lord, Lord Marks, was very kind in his comments. Of course the welfare of children is paramount, but they are not always listened to. We have to listen to them when they say that they are not happy. That is not necessarily happening at the moment. I accept that the noble Lord, Lord Rosser, tried to do this and is pursuing it in other ways. I am grateful for that and glad. I am very happy to work with him on it.

The Minister said that more needs to be done. He talked about the review and said that the amendment is premature and that we need in-depth evidence, but this situation has been happening for decades and children are still dying. I mentioned a figure because it is easy to count deaths—every death is tragic and we can count them easily. However, we cannot count the damage or the mental and sometimes physical anguish that happens to children. That is absolutely uncountable.

I have listened and I accept some of the limitations of my amendment, but I have heard nothing about a solution to stop children dying. I beg leave to withdraw my amendment.

Amendment 42 withdrawn.

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[Baroness Butler-Sloss (CB) [V]]

My Lords, this is such a sensible addition to Section 33 of the Criminal Justice and Courts Act 2015. It is excellent news that the Government have now accepted it.

I was interested to hear the argument of the noble Baroness, Lady Fox, about whether threats of any sort should be criminalised. That may be an argument for another time, looking at other threats, but I have no doubt that threats in the context of Section 33 are entirely appropriate and should be criminalised.

However, I share the view of the noble and learned Lord, Lord Judge, about the phrase “with intent to cause distress”. Before this particular clause becomes law, it would be helpful to look at whether that should, in fact, be adjusted.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I will be brief. I would like to congratulate everybody who brought us to this successful outcome, including the Government. It is staggering to count how many times we have all congratulated the Government this evening. It is a rare event and one to be enjoyed while it lasts.

I would just like to say that the law alone is never enough to protect victims and achieve justice. As the noble Baroness, Lady Uddin, pointed out, we need training for everybody, but in particular for police officers, and to some extent lawyers, to make sure they are able to sensitively and effectively bring perpetrators to justice. I have argued strongly for anti-domestic violence training for police officers, and this is part of it. Threatening to leak nude photos can be a crime, and I am happy that this amendment will be put into the Bill.

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[The Lord Bishop of Gloucester [V]]

My Lords, I spoke in support of Amendments 50 and 66 in Committee and have added my name to them again. I remind noble Lords of my interests as listed in the register. As ever, I am grateful to the noble Baroness, Lady Kennedy, for setting out the amendments so clearly and with such expertise. It is also a privilege to follow the noble Baroness, Lady Hamwee, and I echo all that she has said.

I speak not as a lawyer but as the Anglican Bishop for prisons and a long-time advocate for women in the criminal justice system. There is still a great need for reform. In recent years, it has been recognised that we need to rethink how women in the criminal justice system are treated and their paths straightened. With the Female Offender Strategy, the Government seem to have conceded to a more nuanced approach but we are still waiting for it to be fully implemented.

Here is an opportunity for the Government to recognise that far too many women in prison or under supervision in the community are survivors of domestic abuse and that that unimaginable experience has driven them to offend. If we are convinced of the need to protect all survivors of domestic abuse then we have a moral obligation to dig deeper and extend that protection to all those, mainly women, who have offended while being coerced or controlled by an abusive partner, as we have heard. The experiences of those who retaliate against abusive partners in self-defence or after years of horrific abuse must be taken into account. Protection must be afforded to those who are compelled to offend as part of, or as a direct result of, their experience of abuse.

There are many outstanding organisations that support vulnerable women in the criminal justice system, not least women’s centres such as the one run by Nelson Trust in Gloucester or Anawim in Birmingham. They, along with others, have numerous stories to tell of how domestic abuse has driven someone to use force against their abuser. I am a big advocate of community-based support, which, as we have heard, offers a holistic, trauma-informed response to these women. I am glad about the development of much-needed, police-led diversion work, and that judges and magistrates have been given the resources and information to sentence women appropriately.

However, this legislation is also required here. As I said in Committee, we are not talking in the abstract. The decisions we make have a real and lasting impact on people’s lives. The most vulnerable, with limited life choices, deserve our attention and voice. However, if the compassionate argument is not strong enough and finance is your only focus, it makes no sense to spend nearly £50,000 a year to lock someone in prison when about £5,000 a year would enable a women’s centre, with professional expertise, to support, holistically in the community, someone who has been diverted from the criminal justice process, in recognition that their alleged offending was the direct result of their experience of abuse—and where their prosecution would not be in the public interest. This legislation will enable that to happen.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I agree with every word that we have heard so far, and I have signed all three of these amendments—I think that they are superb and have been carefully and expertly drafted. It is deeply unfortunate that the Government have not adopted them as part of their unusually co-operative approach in this Bill.

The need is very clear: the deeply sad Sally Challen case was only one proof point of the lack of legal protection available for survivors of domestic abuse. Women get a terrible deal in the criminal justice system. Most are there for non-violent offences, and many are there for really minor things like not paying their TV licence. However, sometimes, violence does happen, and, where that is related to domestic abuse, there needs to be a sufficient legal defence to recognise the reduced culpability.

It is obvious that judges and, sometimes, lawyers do not understand coercive control and other abuses. The excellent report from the Centre for Women’s Justice, which the noble Baroness, Lady Kennedy of The Shaws, referred to, is called Women Who Kill—I will give a copy of the executive summary to the Minister afterwards to make sure that he reads it. It lays out the response of the criminal justice system to women who kill abusive partners and the way the law itself, and the way it is applied, prevent women from accessing justice.

Women who have been abused by the man they kill are unlikely to be acquitted on the basis of self-defence. Of the 92 cases included in the research for the report, 40—that is 43%—were convicted of murder. Some 42—that is 46%—were convicted of manslaughter, and just six, which is only 7%, were acquitted. The use of weapons is an aggravating factor in determining the sentence, and the report found that, in 73 cases—that is 79%—the women used a weapon to kill their partner. This is fairly unsurprising, given women’s relative size and physical strength and their knowledge of their partner’s capacity to be violent.

However, as other noble Lords have pointed out, this contrasts with the legal leeway given to householders if they kill or injure a burglar. Therefore, we need legislative reform to extend provisions of householder defence to women who use force against their abuser. It is discriminatory to have a defence available to householders defending themselves but not to women in abusive relationships defending themselves against someone who they know can be dangerous and violent towards them.

In the week that Sarah Everard was abducted and, we suppose, killed—because remains have been found in a woodland in Kent—I argue that, at the next opportunity for any Bill that is appropriate, I might put in an amendment to create a curfew for men on the streets after 6 pm. I feel this would make women a lot safer, and discrimination of all kinds would be lessened.

However, once convicted, women’s chances of successful appeal are extremely slim. Society’s understanding of domestic abuse has come such a long way, even in the last few years, yet a jury is forced to apply outdated ideas of self-defence, such as responding to a threat of imminent harm, which have no relation to the realities of domestic abuse.

The Government have said that they are persuaded on the issue but will

“monitor the use of the existing defences and keep under review the need for any statutory changes.”

I simply do not believe that that is true. It is not appropriate for the sort of crimes that we are talking about. As such, can the Minister please tell me which Minister is charged with this review, how many civil servants are involved and when will they report?

[Lord Paddick (LD) [V]]

My Lords, my noble friend Lady Hamwee has already set out our support for all three of these amendments but I want to address the Minister’s remarks in Committee on Amendment 50.

I have seen misogyny described as the hatred of women who fail to accept the subordinate role ascribed to them by a patriarchal society, who fail to conform to the misogynist’s belief that women should be no more than compliant and decorative, whose role is to serve the needs of men. Out of such a false and outdated narrative comes the idea that physically stronger men should stand and fight while physically weaker women should run away. I am very sad to say that this appeared to be the Government’s position when we discussed these amendments in Committee.

In Committee, the Minister said correctly that what is sought 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 their home. That is, the degree of force used in self-defence by the defendant would have to be grossly disproportionate rather than simply disproportionate.

The Minister suggested that judges have developed common law defences and that we should trust them to apply these to domestic abuse cases. However, the Government did not trust the judges when it came to someone acting in response to an intruder in their home, passing primary legislation to change the acceptable degree of force to include disproportionate force in such circumstances by means of Section 76 of the Criminal Justice and Immigration Act 2008.

The Minister took up the challenge I put to him to demonstrate the difference between this amendment and Section 76. He said that in the case of an intruder, the householder is put in a position where they are acting

“on instinct or in circumstances which subject them to intense stress.”—[Official Report, 3/2/21; col. 2285.]

He also noted that the amendment did not appear to deal with the defendant’s option to retreat. Section 76 makes it clear there is no duty for a householder to retreat. With the greatest respect to the Minister, I suggest that it would appear from the Government’s response that neither he nor those advising him have been the victim of domestic violence. I have, and I can tell the Minister that when you are cornered in your own home—the one place where you should feel safe—by an abusive partner who is using physical violence against you, you are subjected to intense stress and there is a distinct possibility that you will react instinctively.

As I said in Committee, in my experience, having been physically threatened by an intruder and having been physically assaulted by my then partner, the intense stress is far worse and sustained when the person you rely on for love and affection snaps and attacks you or subjects you to abuse over a prolonged time. My own experience of domestic violence is that retreat just encourages further violence. Why should a victim of domestic violence retreat but the victim of a burglary stand and fight?

As noble Lords will have gathered by now, I am not a believer in domestic abuse being defined as a gendered crime—that it is overwhelmingly male violence against women. In my case, it was the fact that my abusive partner was far stronger than me that meant he felt able to attack me. However, two-thirds of victims are women and the overwhelming majority of them will be victims of male violence. Men are, on average, physically stronger than women and abusive men may even seek out weaker women to facilitate their abuse. Women are therefore far more likely to have to resort to the use of a weapon in what would otherwise be an unequal physical contest when they are attacked by a male partner. Their use of force is therefore more likely to be considered disproportionate, albeit understandable.

Domestic Abuse Bill

Baroness Jones of Moulsecoomb Excerpts

Committee stage & Committee: 5th sitting (Hansard) & Committee: 5th sitting (Hansard): House of Lords
Monday 8th February 2021 Lords Chamber

So far, I totally support the amendment and agree that recording cases of misogyny can really help the police to build up a picture of abuse. But I just wonder why, in the last line of the amendment, a definition of “sex” has been considered necessary. The terms “sex” and “gender” are interchangeable across English law, so why have the drafters of the amendment seen fit to throw in a definition of “sex”? I have just a twinge of anxiety that the trans community might feel excluded, and this legislation must be inclusive. After all, trans women can be victims of misogyny just as much as any other type of woman, so any definition of sex for the purposes of this clause must be trans inclusive, which is the default position for all our laws. Therefore, although I totally agree that misogyny should be recorded as a hate crime, as that would play a very valuable role, I hope that that anxiety will be assuaged; otherwise, I may not be able to support the amendment.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I am absolutely delighted to be a signatory to this long overdue amendment, which I thank the noble Lord, Lord Russell, and the other co-signatories for bringing forward. It relates to a policy that I have advocated for years—that we should make misogyny a hate crime.

Part of the problem is that misogyny and sexism are deeply embedded in our society. The noble Baroness, Lady Bull, talked about a protective kindness from men towards women. Quite honestly, we do not need that. Misogyny and sexism can be covered up by teasing and even flattery, but it is totally inappropriate and it is time that men learned that. We have enshrined our condemnation of racism and homophobia in law, but we are not treating sexism as the same kind of priority and it is time that we did.

According to statistics, 90% of British women experienced street harassment before the age of 17. Street harassment is being shouted at. We are not talking about wolf-whistling; we are talking about men shouting at women, making them embarrassed and perhaps making them feel less free to walk down a street. Eighty-five per cent of women aged 17 to 24 have been subjected to unwanted sexual advances. Can your Lordships imagine that—that 85% of women have been groped by people whom they do not want to be groped by? Therefore, it is time to make misogyny a hate crime.

The amendment is long overdue and I hope that the Minister will say that she accepts it completely. Several noble Lords have talked about Nottinghamshire Police being trailblazers on this. It has seen a 25% increase in the reporting of misogynistic crime and a very high level of satisfaction among the people—mainly women—who have reported those crimes, because finally they have been taken seriously. As noble Lords have also said, only 11 out of 43 police forces in England and Wales have made misogyny a hate crime, have trialled it or are actively considering implementing this.

Part of the problem is that, just as the police are representative of society, there will be police officers who are sexist and misogynistic. This means that they need training. I have in the past mentioned the sort of domestic abuse training that some police forces are already getting. It makes the officers aware of exactly what happens and creates more empathy for the people who are being abused. For me, domestic abuse training is part of what will help to solve this problem that we have of misogyny. I hope that standing up and talking about it here will also help.

It would be a real shame for this amendment not to be accepted on to the statute book, but will the Minister at least promise to open a debate on this issue among police forces? It is in her power to do that. I would be very pleased if she accepted this amendment but, if not, could she take it forward in any way that she can?

[The Deputy Chairman of Committees (Baroness Garden of Frognal) (LD)]

I call the noble Lord, Lord Lucas.

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In his response to Christine Jardine, Alex Chalk points to improvements in compliance with the collect and pay service, which has risen between 2017 to 2019 from 57% to 68%. But that is still nearly one-third of victims whom the system is still failing. Victims can report the perpetrator and come into the collect and pay service, but many are fearful of doing this for fear of inflaming tensions with an ex-partner who will then face hefty collection charges if the CMS steps in. The Government have made some good steps in a horrendously difficult situation but, despite their claims of not only issuing some guidance and some training, the system could do better. That is why, in further consultation with charities such as Women’s Aid, the Government should look again at how this group of victims can get their lives, their children’s lives and their economic freedom back. I beg to move.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I shall speak briefly on this, as I think that the amendment in the name of the noble Baroness, Lady Burt, is one of those that would help to close a little gap in the whole issue. When people think about domestic abuse, they often think about physical abuse, and perhaps about emotional and mental abuse, but tackling economic abuse is just as important if we are to stamp out domestic abuse.

I have signed this amendment, as it is important that the child maintenance system is not misused as a tool of abuse. Domestic abusers must not be allowed to continue their domestic abuse by withholding or reducing their financial support for children. This amendment, like so many of those tabled to this Bill, is a reminder of how multifaceted domestic abuse is, and how abusers will exploit any opportunity they possibly can. We must deny them those opportunities and punish them for what they do.

[Lord Rosser (Lab) [V]]

Amendment 158 in the name of the noble Baroness, Lady Burt of Solihull, would require the Secretary of State to issue guidance to the Child Maintenance Service to tackle the problem of abusers continuing economic abuse by withholding or reducing child maintenance payments. As the noble Baroness, Lady Burt, said, we have just had a debate on the issue of economic abuse post separation, and one of the examples given of such abuse was through the perpetrator failing to pay child maintenance.

Child maintenance is an essential source of income for many single parents in enabling them to meet their children’s basic needs, including food and clothing, and is of particular importance to victims and survivors of economic abuse, who often rely on such payments for economic stability after leaving a perpetrator. Perpetrators of economic abuse are only too aware of this, however, and withholding or unreliably paying child maintenance can be a way in which they continue to control victims and survivors, including post separation. This issue does seem to highlight the importance of agencies such as the Child Maintenance Service that provide front-line services carrying out training to recognise and respond to economic abuse, as a means of domestic abuse, as part of how they operate.

Economic abuse perpetrated through child maintenance is not new, of course; it has been used by perpetrators for some time. However, the coronavirus seems to have exacerbated the situation through providing perpetrators with increased opportunities to interfere with child maintenance payments. During the present pandemic, it has been reported that the Department for Work and Pensions has redeployed a number of Child Maintenance Service staff in order to deal with the spike in universal credit claims. It has been said that this included staff tasked with enforcing or following up child maintenance.

The media have additionally reported that the Child Maintenance Service was accepting verbal evidence from paying parents seeking to stop or reduce payments in relation to their income decreasing during the pandemic, when this would usually require evidencing through documents such as payslips. In their response, could the Government indicate whether there is validity in these reports and what guidance has been issued by the Government to the Child Maintenance Service on tackling the problem of abusers continuing economic abuse by withholding or reducing child maintenance payments—not only prior to but during the pandemic?

We support the noble Baroness, Lady Burt of Solihull, in raising this issue and await the Government’s response.

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Moved by

[Baroness Jones of Moulsecoomb]

159: After Clause 72, insert the following new Clause—
“Anonymity of domestic abuse survivors in criminal proceedings
(1) Where an allegation has been made that a relevant offence has been committed against a person, no matter relating to that person shall during that person’s lifetime be included in any publication if it is likely to lead members of the public to identify that person as the survivor.(2) Where a person is accused of a relevant offence, no matter likely to lead members of the public to identify the person against whom the offence is alleged to have been committed as the survivor shall during the survivor’s lifetime be included in any publication.(3) This section does not apply in relation to a person by virtue of subsection (1) at any time after a person has been accused of the offence.(4) The matters relating to a survivor in relation to which the restrictions imposed by subsection (1) or (2) apply (if their inclusion in any publication is likely to have the result mentioned in the relevant subsection) include—(a) the survivor’s name,(b) the survivor’s address,(c) the identity of any school or other educational establishment the survivor attended,(d) the identity of any place where the survivor worked,(e) any still or moving pictures of the survivor, and(f) any other matter that might lead to the identification of the survivor.(5) At the commencement of a trial at which a person is charged with a relevant offence, the judge may issue a direction for lifting the restrictions only following an application by or on behalf of the survivor.(6) Any matter that is included in a publication in contravention of this section must be deleted from that publication and no further reference to the matter may be made in any publication.(7) If any matter is included in a publication in contravention of this section, the following persons shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale—(a) where the publication is a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical;(b) where the publication is a relevant programme—(i) any body corporate or Scottish partnership engaged in providing the programme service in which the programme is included; and(ii) any person having functions in relation to the programme corresponding to those of an editor of a newspaper;(c) in the case of any other publication, any person publishing it.(8) For the purposes of this section—“publication” means any material published online or in physical form as well as any speech, writing, website, online news outlet, social media posting, relevant programme or other communication in whatever form which is addressed to the public at large or any section of the public;“relevant offence” means any offence where it is alleged by the survivor that the behaviour of the accused amounted to domestic abuse;“survivor” means the person against whom the offence is alleged to have been committed.”

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I have tabled this probing amendment because I am trying to address the woeful underprosecution of domestic abuse and domestic violence in our courts. I do not think that the courts are quite set up to secure justice for survivors. Part of the problem is the intrusive nature of court into the survivors’ lives. The nature of domestic abuse means that deep and intimate details of a survivor’s life and their abuse can be exposed to the public eye. These intimate details can be exploited by the tabloid press or be the subject of trolling on social media. The higher the profile of the abuser or survivor or the more extreme the abuse, the more likely they are to face that media circus.

This should not be happening. Intrusion into survivors’ lives has to stop; they are revictimised and exploited by this publicity, which is incredibly damaging. Other survivors see this and it makes them less likely to report crimes that have been committed against them. It forces people to maintain secrecy for fear of becoming the latest victim of a media circus.

The courts are not currently set up to help survivors avoid this media chaos. There is scope for a survivor to seek a reporting restriction, but this is limited to situations where the restriction would help improve the quality of evidence or the level of co-operation given by a witness in preparing the case. This is not necessarily a survivor-focused approach; it is actually focused on helping the court to have the best available evidence, rather than the rights and protections of survivors. I hope that the Government will work with me to improve this. There must be some way to find agreement on the need to protect survivors, while allowing them to tell their story and obtain justice. I beg to move.

[Lord Paddick (LD) [V]]

My Lords, I thank the noble Baroness, Lady Jones of Moulsecoomb, for introducing this amendment. The openness of judicial proceedings is a fundamental principle enshrined in Article 6(1) of the European Convention on Human Rights. This underpins the requirement for a prosecution witness, including the victim, to be identifiable not only to the defendant but to the open court. It supports the defendant’s ability to present his case and to test the prosecution case by cross-examination. In some cases, it can encourage other witnesses to come forward, particularly if the victim has made false allegations in the past.

However, the principle of open justice can sometimes be a bar to successful prosecutions, and we know that domestic abuse survivors are less likely to report abuse if their name is going to appear in the press as a result. I speak from personal experience again. When I was a victim of domestic abuse, I was not prepared even to report my abuser to the police out of shame and fear that it might become public knowledge.

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[Lord Wolfson of Tredegar (Con)]

My Lords, I hope I can be relatively brief in my reply—not because the point is not important, nor indeed out of a lack of respect for any of the contributions we have just heard, but because there is a single and critical point, fundamental to the administration of justice, which lies at the heart of this debate.

As the noble Baroness, Lady Jones, explained, this probing amendment is designed to protect the identity of complainants in domestic abuse cases by the automatic application of reporting restrictions from the point when the allegation is made. Although the noble Lord, Lord Paddick, referred us to Article 6(1) of the European Convention on Human Rights, I dare say that the principle of open justice goes back much further than that. We are all familiar with the adage that justice must not only be done, it must be seen to be done. That statement, with which we are all familiar, I am sure, recognises that automatic reporting restrictions of this kind are an exceptional interference with open justice. Therefore, we make those reporting restrictions available only when there is a real need to do so.

The most familiar precedent is in relation to complainants who allege that a sexual offence has been committed against them. In those circumstances, there is a clear justification for preventing the reporting of the complainant’s identity, because there is an overriding need for anonymity to be guaranteed from the outset so that victims of a type of offence that still carries considerable stigma are emboldened to come forward and tell the police. As the noble Lord, Lord Rosser, says, there are a couple of other such other examples in the law, but each of those is an exception to the general rule. We must be very careful, I would suggest, to limit those exceptions to cases where it is demonstrably required. Therefore, while I listened with care to the speech by the noble Lord, Lord Paddick, and his personal and, if I may say, moving testimony, we do not consider that, as a matter of generality, domestic abuse cases in which no sexual offence has been committed fall into the same category such that they require automatic protection in the same way.

However, as a number of noble Lords identified, that does not mean that victims of domestic abuse should be denied anonymity where they both request and need it. The courts have discretionary powers to impose, on application, reporting restrictions prohibiting the naming of a witness, where the court is satisfied that being identified would diminish the quality of that witness’s evidence. I suggest that there is sufficient discretion before the courts to meet cases where reporting restrictions are required. To go further would be an unjustifiable interference with the extremely important principle of open justice.

I hope, therefore, given that this is a probing amendment —and while of course I am always willing to discuss anything with the noble Baroness, Lady Jones—that she will feel able to withdraw her amendment at this stage.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I realise this is a tricky subject to legislate on, but I think there is a problem and we need to fix it in some way. I thank the noble Lords, Lord Paddick and Lord Rosser, for their largely sympathetic comments. I heard the Minister say that justice must not only be done, it must be seen to be done. In that case, I would like him to go, perhaps, one of these days, to the High Court and see what is happening in the spy cops inquiry, where Judge Mitting—or rather the Met—is giving anonymity to many police officers who have committed crimes. Therefore, it does seem to me that somehow there is justice for some and not for others. I will, of course, withdraw the amendment now, but I still think this is a problem and that there has to be some way of sorting it out.

Amendment 159 withdrawn.

Domestic Abuse Bill

Baroness Jones of Moulsecoomb Excerpts

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

Moved by

[Baroness Jones of Moulsecoomb]

130A: After Clause 64, in subsection (4) after inserted text (8)(b) insert—
“(c) pending a fact finding hearing or has been found to have committed domestic abuse in a previous fact-finding hearing; orwho has a criminal conviction for a domestic abuse offence.”Member’s explanatory statement
This new Clause seeks to change the presumption that parental involvement furthers the child’s welfare when there has been domestic abuse. It also prohibits unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences, or where there are ongoing criminal proceedings for domestic abuse.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, some of the earlier amendments to the Bill have been about removing stress from survivors, particularly when they are in court. I support Amendment 130 moved by the noble Lord, Lord Rosser, and my amendment is a friendly amendment. Our amendments are about removing stress from children, which I think noble Lords will agree is a very noble cause. As other noble Lords have found, we have been contacted by an incredible number of people and organisations, who have explained that this is a problem and it needs fixing. The presumption of contact in certain family law cases involving domestic abuse needs to be rethought. Obviously, it is incredibly important in many family situations to help children maintain contact with both parents, but in circumstances of domestic abuse this can be precisely the opposite of what needs to happen and can result in disaster.

The whole point of family courts is that they are supposed to be about the welfare of the child, but it seems that too often a court maintains contact in situations that are obviously very harmful to children. The courts apply this presumption of contact too rigidly. Rather than acting as a presumption which can be rebutted, it has become more of an overriding obsession. It has been described as creating a “culture of contact” which pervades the entire family court system and then excludes other aspects of a child’s welfare, including listening to the child’s wishes and protecting them from abuse.

This culture of contact has led to serious tragedies. As the noble Lord, Lord Rosser, mentioned the Women’s Aid report Nineteen Child Homicides documents 19 children in 12 families who were killed at the hands of abusive fathers during unsupervised contact between the years 2005 and 2015. One example of a tragedy was Darren Sykes, who murdered his two children and took his own life by setting fire to his attic. Despite a consistent history of domestic abuse, and against the wishes of the two little boys, the pro-contact culture of the family courts led to Sykes being granted unsupervised contact with the children for five hours each week. This culminated in him taking the boys up to the attic, barricading the three of them in, and setting multiple fires. Mortally wounded, one of the boy’s last words were spoken to a firefighter. He said, “My dad did this, and he did it on purpose.”

Each one of these deaths is a preventable tragedy. Your Lordships have a duty, through the Bill, to prevent each one of them happening again to another child. My amendment to Amendment 130 has a straight- forward purpose: to ensure that unsupervised contact is not granted where the court has found that domestic abuse has taken place, or where there is a relevant criminal conviction. It should be put beyond doubt that a parent cannot have unsupervised contact when they have been proven to be a domestic abuser. This is a simple proposition: too many children are murdered by parents who are known—and who have been shown —to be abusive. We must protect these children and say, “Never again”.

[Baroness Gardner of Parkes (Con) [V]]

My Lords, I am very supportive of the Bill. The mental and physical damage of domestic abuse goes far beyond the pain and anguish caused at the time it occurs and stays with victims and their families for many years, if not for the rest of their lives. It is important that we do all we can in this legislation to help victims to get out of abusive relationships and rebuild their lives.

I will speak on Amendments 130 and 130A and propose to add parental alienation to the definition of abusive behaviour and, therefore, every provision of the Bill. I fear that the amendments may undo much of the work which the Bill seeks to do to protect victims of domestic abuse and swing the pendulum of control back to the perpetrator of that abuse, rather than the victim, if they make counter-allegations.

Without meaning to sound flippant I say that, at the extreme, any parent going through a break-up or divorce could find themselves accused of domestic abuse under this Act. That is not what the Bill is intended for. I wonder if the concerns of noble Lords on these amendments are already covered by the combination of Clause 1(3)(e) and (5). Alternatively, if they had a specific instance in mind, they should look at where that can be catered for in specific clauses, not by a wholesale change to the entire Act in this way.

The noble Lord, Lord Marks, has made it clear that direct cross-examination can cause great distress. It is important to help all people in vulnerable situations. I can see these amendments having massive unintended consequences if they are included. I urge the House not to accept either of these changes, so as to maintain the integrity of the Act.

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This has been, as I said at the start, a most important and valuable debate. The Government’s contention is that we should wait for the outcome of the review of the presumption of parental involvement before any decisions are taken in relation to whether changes are required to that presumption or its application. Given this and the other points I have made in reply, I hope that the noble Lord, Lord Rosser, will be content to withdraw his amendment if the noble Baroness, Lady Jones of Moulsecoomb, does so with hers.

[Baroness Jones of Moulsecoomb (GP)]

My Lords, I thank all noble Lords who contributed to this extremely valuable debate. In particular, I thank the Minister for his sympathy for our point of view. As he says, there are real consequences in rejecting these amendments. I note the heavyweight opposition on several points but I am not convinced. The fact is that we have a problem and just rejecting these amendments will not solve it. I hope that there will be further working together on this, and that noble Lords will forgive me if I do not note all the responses, as it was fairly clear these amendments will not be going forward.

I really want to thank the noble Baroness, Lady Burt of Solihull, for her very constructive comments. The fact is that, as she said, we can underestimate the damage done by perpetrators. This is the problem. We have not fixed the problem of children’s deaths through abusive parents. Going forward, I want to find out how we can solve that problem. Let us please remember that deaths are a figure we can point to but that mental, physical and emotional abuse are much harder to quantify. This must happen. If we have 20, 24 or 60 deaths, whatever, then a multiplicity of other abuses will have happened. We must take that into account in rejecting these amendments. I said at the beginning of the debate that there is always a presumption of parental involvement—that it is better to have two parents involved—but the way that things stand at the moment is too strong, so this must be rethought.

I beg leave to withdraw my amendment and presume that the amendment of the noble Lord, Lord Rosser, will also be withdrawn. I feel that he was absolutely right to table his amendment, because it has enabled a debate. Hopefully, we will move forward and find a solution.

Amendment 130A (to Amendment 130) withdrawn.