Domestic Abuse Bill

Debate between Baroness Kennedy of Shaws and Lord Randall of Uxbridge

Wednesday 21st April 2021 Lords Chamber

[Baroness Kennedy of The Shaws (Lab) [V]]

As tabled, this new amendment, is in lieu of my earlier amendments which sought to create statutory defences for survivors who offend due to their experience of domestic abuse. One of the devasting impacts of domestic abuse is the unjust criminalisation of the victim. This is a landmark Bill, and I pay tribute to all who have been perfecting it and adding to it. I think it will be a hugely important piece of legislation, but I am afraid it does not prevent this criminalisation of victims.

I am not resisting the Motion, but my new amendment would commit the Government to establishing an independent review of the effectiveness of self-defence. It is my view, as a barrister in the courts who has done homicide cases involving domestic violence where the victim has killed her abuser, that there is need for legislative reform. A great deal of research has now been done. A study recently conducted by the Centre for Women’s Justice has produced a very persuasive report concerning the limitations of the defences available to women and, particularly, how self-defence fails women because often, in circumstance where their abuser is not using a weapon, they reach for a weapon. This is then deemed to be disproportionate to the threat, but in the circumstances, and the fear created in her is so great, and she is so unmatched physically with abuser, that she will often reach for a weapon where others might not. The report produced by the Centre for Women’s Justice calls into question the ability of self-defence to cover many of the women, and it provides serious evidence of that.

Equally, the Prison Reform Trust has done a great deal of research into women in custody, serving sentences in our prison estate, many of whom have been forced to commit crimes by their abusers.

We hope that this review might be added to the review that has just been mentioned by the Minister. The fact that sentencing is being looked at is welcome, but that does not deal with the fact that women unable to avail themselves of self-defence are often being left with a conviction. This has serious consequences for people’s lives, even if they are dealt with more compassionately by a court because of their history of abuse that the court has heard.

I ask that this review be undertaken in conjunction with the review on sentencing in homicide cases. I remind the House that the Lord Chancellor is contemplating such a review on homicide cases because, having spoken to the Victims’ Commissioner and the domestic violence commissioner, who explained to him the ways in which women might seem to take disproportionate action because of their physical disadvantage, he felt compelled to. I would not have thought that it was particularly complicated to add to the review the issue of whether the matter of self-defence and duress works for women and men experiencing domestic violence.

My amendment seeks a formal response from the Minister to my suggestion. I will not be pushing the amendment to a vote. My earlier amendments would have provided effective defences for survivors of domestic abuse who, as a result of the appalling experience, are driven to use force in self-defence or are coerced by their abuser into offending. The amendments were based on legal precedents already in place to protect other groups. Since we already make this special concession for householders facing an intruder, I cannot understand why the same kind of concession in seeking proper justice cannot be made available to victims of domestic abuse.

One might also look at how victims of trafficking who are compelled to offend are dealt with, as suggested by the statutory defence in the second of the two propositions that I put before the House. They would have provided equivalent protection to survivors who, far from receiving protection and support, as this Bill seeks to ensure, find themselves in the dock for offences that they had no realistic alternative but to commit.

When the Minister and I met last week to discuss these proposals with members of the Centre for Women’s Justice, we were joined by a survivor who spoke powerfully of her experience of terrible abuse, including how she was coerced by her terrifying abuser into handling stolen goods. I feel sure that the Minister would agree that there is no material difference between the circumstances that led her to offend and the way in which victims of trafficking are coerced into offending. Yet, had she been caught, it is highly likely that she would have received a caution or conviction, given the impossibly high threshold required for the defence of duress, and that she would have gone to prison.

This is far from being an isolated case. Many other examples, including cases in which self-defence has failed, have been collated and presented to the Government. The misery and injustice faced by victims in these cases will simply go on and on until reforms are implemented. Other common-law jurisdictions have dealt with these challenges through legislation, and I have never been more convinced than now that we need legislation in this jurisdiction to ensure that these cases are dealt with justly. I know that the Minister disagrees, but I also know that he sympathises with our aims. I hope therefore that he will take action today by confirming that the Government will hold an independent review of this matter, and do so in conjunction with the review of sentencing, as he has already outlined.

[Lord Randall of Uxbridge (Con) [V]]

My Lords, I speak in favour of Amendment 37B, in the name of the noble Baroness, Lady Kennedy of The Shaws, having supported her in earlier amendments on Report.

I always think that it is a danger for a non-lawyer to get involved in some of these discussions. I remember that very often people asked why we had so many lawyers in the House of Commons, and when I got there I realised that it was because we make laws. This of course is a good example of why we need the great legal brains that this Chamber has in plenty. So I feel a little in awe not only of the noble Baroness but of my noble friend the Minister.

I declare an interest as the deputy chairman of the Human Trafficking Foundation. There is a similarity with the Modern Slavery Act, which covers people who commit crimes under duress because they have been trafficked or are enslaved, although my noble friend the Minister does not think so. I find it difficult not to see it, and it is a shame. The last thing we need is to fill up our prisons with people who should not be there and who committed a crime only because they were forced to. I heard what the Minister said, and what the noble Baroness said. It would be very useful if he could move a little more and extend that review to look at the issues that the noble Baroness mentioned. I heard what the noble Baroness said about the meeting that she had with my noble friend and the fact that there was a survivor there. I have always believed that listening to survivors, whether of domestic abuse or modern slavery, normally for me swings the balance in favour of the victims. Those poor, innocent people who have had to endure so much should not have to face criminal proceedings as a result of their abuse.

I look forward to hearing what my noble friend the Minister says in winding up this debate. I fear that I may be disappointed, but I hope that perhaps at the last minute there will be a glimmer of hope.

Domestic Abuse Bill

Debate between Baroness Kennedy of Shaws and Lord Randall of Uxbridge

Report stage
Wednesday 10th March 2021 Lords Chamber

[Baroness Kennedy of The Shaws (Lab) [V]]

I feel that that was unnecessary, but I was coming to my conclusion anyway. There must be a causal link between the threat and the decision of the defendant to break the law, and that is a high bar. I strongly urge the House to support this new statutory defence for women who are compelled to commit crimes so that they can put it before the court where it can be tested and measured evidentially. If it passes the test, she can be acquitted.

Amendment 66 is a list of the offences to which this would not apply because of their gravity. I hope that the Crown does not think that there are two kinds of victims: those who are somehow deserving and those who are undeserving. The end of the road is when women are forced to do things that take them into the criminal ambit because of a history of abuse. I beg to move.

[Lord Randall of Uxbridge (Con) [V]]

My Lords, we have heard a passionate and erudite speech by the noble Baroness, Lady Kennedy of The Shaws. I have attached my name to her Amendment 51 principally because I was struck by the similarity, which is mentioned in the explanatory statement, to what is set out in the Modern Slavery Act 2015, where someone cannot be found guilty of committing a criminal act if they have been subjected to the coercion of modern slavery. I can see the same parallel between that and the domestic abuse situation which has been put so well by the noble Baroness. I therefore say, in the interests of brevity, that the noble Baroness has said it all and I shall support her, certainly on Amendment 51, if she puts it to a vote.