Legal Aid, Sentencing and Punishment of Offenders Bill

Lord Macdonald of River Glaven Excerpts

Wednesday 18th January 2012 Lords Chamber

I ask the Minister to pay particular attention to Amendment 46. The proposals of the Government about what will be acceptable domestic violence in order to get legal aid are profoundly too narrow. There are so many situations. For example, no woman goes willingly to a refuge. I do not know whether the Minister has ever been to a refuge, but no one in their right senses would want to go there unless they were driven by real abuse from their partner. That is an absolute minimum. A woman who has been accepted in a refuge really should be treated as a victim of domestic violence. I hope that the noble and learned Baroness, Lady Scotland, will say more about these matters; they are of enormous importance and, so far, the Government have given an inadequate response to matters which I know they take seriously. However, if they do not give a sufficiently adequate response to these amendments, they will not be seen to be treating them sufficiently seriously. In relation to Amendment 42, I beg to move.

[Lord Macdonald of River Glaven]

My Lords, I wish to speak to Amendments 43 and 44, to which I have attached my name, and to a part of the group which focuses on the question of domestic violence and the way in which the Bill approaches domestic violence.

The history of the justice system and domestic violence is not a very happy one. For many years, crimes within the home were hardly regarded as the business of the state; they were, in the rather grim phrase, “domestics”—issues to be sorted out as best as they could be between the parties. Of course, the problem was that the parties were very rarely equal. Children, who are often the most damaged victims, are the least equal of all. In all the years that I was a prosecutor, I saw the effects and consequences of that injustice. At its most brutal, I dealt with a startling number of women who had been murdered by their partners, and who had repeatedly been victims of persistent and escalating assault. In too many cases, those assaults had gone completely unpunished and undetected and they were allowed to escalate into killing. It would be difficult to imagine a worse failure of law enforcement policy.

When I was the DPP, the prosecution service and the police, notably aided and encouraged by the noble and learned Baroness, Lady Scotland, when she was a distinguished Attorney-General, spent a great deal of time on this issue, as she knows. We did research, we spoke to victims and to experts, and we educated ourselves, prosecutors and police officers. The most important lesson that we learnt was that the signals sent out by victims of domestic violence can be confused and difficult to read. Sometimes they have to be decoded and understanding that was the key to all the reforms that we undertook. Of course, people in these situations do not send out confusing signals or sometimes behave in ways that are, for us, counterintuitive because they are necessarily lying, but the complex human relationships that are in play do not always allow for a rational train of evidence, so the police and we as prosecutors had to think differently and imaginatively about this category of crime. The Government also have to do that.

At the most basic level, a woman who has been beaten up does not always come forward to make an official complaint, but the absence of a complaint is not evidence that a crime has not occurred. The British Crime Survey tells us that up to 25 per cent of women have experienced domestic violence, but the numbers coming forward are far below that: indeed, on the Bar Council's figures from another survey, only 16 per cent of victims of domestic violence come forward.

The truth is that an abused woman will not always report her assailant to the police. Often, she will not. If she does, she will not always support a prosecution. Often she will not; often she will return home to face more violence. No doubt sometimes she has children who want their father. Sometimes he is the breadwinner and she fears destitution without him. Sometimes she may simply continue to love him in some way that draws her back. As prosecutors, we learnt not to take the behaviour of victims of domestic abuse at face value. We learnt that we had to get beyond those responses if we were to get the assailant. That was the key: to get beyond the responses. The result was that prosecutions of domestic abusers rose dramatically, as did the rates of conviction. This was painstaking work and it would be a very great shame to see any of it undone.

Which of the lessons that we learnt have the drafters of the Bill learnt? The answer is: not enough of them. Frankly, in their understanding of domestic violence, the proposed legal aid reforms could have been written 10 or 15 years ago. It is a matter of great regret that a Bill presented by the coalition Government of which my party is a member appears to step backwards in expecting victims of domestic violence to conform to a stereotype of conduct, so that they will not be believed, their gateway will be shut and they will not get legal aid. This risks condemning many victims of domestic violence to a future with little or no legal succour. It is a policy with which the Government should not be associated.

In essence, the Government have done the right thing in Schedule 1 by retaining legal aid in private family law cases where domestic violence is present, but have done the wrong thing by requiring categories of evidence to support the existence of domestic violence that are very commonly absent, such as a criminal conviction, a finding of court and so on. So often, the victims of this sort of conduct seek advice and help from sources other than the authorities.

[Lord Clinton-Davis]

Has the noble Lord made representations to this effect? If so, what has been the reply?

[Lord Macdonald of River Glaven]

I am certain that the points that I and other noble Lords made were carefully considered by the Government, who I hope will continue to consider the points. My point was that frequently victims of domestic violence seek support other than from the authorities, for obvious reasons; they seek it from doctors, support organisations, social services and the like. Material from these sources should be acceptable as evidence for the purposes of the legal aid gateway.

We can dress up the Government’s present scheme in any way we like, but the reality is that the legal aid budget will reduce as a direct result of the reluctance of many victims of intimate domestic violence to expose themselves and their children to the threat of more abuse by identifying and reporting their assailant to the authorities. That is unacceptable. Of course, we all hope that victims will come forward and seek protection for themselves and their children. It is important to give them every encouragement to do so. However, often they will not, and if they do not they should not be denied legal aid for that reason.

The Government's justification for the Bill's approach is, if anything, less attractive than its substance: namely, that we need a conviction or some other officially reported evidence of abuse in case women are tempted to make up allegations of assault in order to get legal aid. This is a rather depressing reinterpretation of the old stereotype of the woman who cries rape. Of course, women very occasionally invent allegations of rape but, in my experience both as a defence counsel and as chief prosecutor, these cases are exceedingly rare and very heavily outnumbered by cases in which the woman has been attacked. A vast and overwhelming number of women do not invent the attacks that have been visited on them. Domestic abuse is real and far too widespread, as I know the Secretary of State and the Minister realise and understand.

It is particularly difficult to understand why the definition of domestic violence in this Bill is different from and, on any analysis, narrower than the definition used by ACPO and the Crown Prosecution Service in detecting and prosecuting these crimes. I hope this is an accident. If it is, let the error be rectified at once. If it is not, let the Government think again. What possible justification can there be for this Bill to contain a definition of domestic violence that offers less protection to the victims of domestic violence than the definition used successfully day in and day out by our law enforcement agencies? If that is the reality, as I believe it is, this definition has no place in this Bill.

I accept that the legal aid budget must reduce. It is for this reason that I am able to support, as the Minister knows, many of the reforms proposed by the Government. Indeed, I have no problem at all with some of the more controversial proposals, including competitive tendering for criminal legal aid, although this does not make me very popular with many of my professional colleagues, but I have a major problem—

[Lord Scott of Foscote]

Can the noble Lord help me on one point? I think I understand well what psychological, physical, sexual or emotional abuse might consist of, but I find it very difficult to see what the adjective “financial” adds to a case where none of those elements is present.

[Lord Macdonald of River Glaven]

One can imagine a category of abuse that is primarily financial. Of course, it could carry in its train some of the other features that the noble and learned Lord has alluded to, but it adds something to the definition of domestic violence. We all know that financial power is an important aspect of the power relationship that can exist between men and women, particularly, as he indicates, women who are being abused in other ways. My view is that the adjective “financial” is an important part of the realistic and modern definition of what can cause and amount to domestic violence.

I have a major problem with an approach that risks rolling back decades of progress in our understanding of a crime that is an absolute scourge, not least in the way that it condemns so many of the children who live with it to disordered and chaotic later lives of their own. Talking of cost, that brings its own very high cost, which all of us have to pay. We must have a system of legal aid that works properly to protect the victims of domestic abuse, understanding that it is money well spent. We must have a Bill with the modern definition of that crime and including provision for those who may be too scared or desperate to call the police. As we all understand, domestic violence brings a cycle of damage and despair that is deeply destructive and anti-social. No Government should ever find themselves on the wrong side of this argument.

[Lord Carlile of Berriew]

My Lords, I support these amendments. I will particularly refer to Amendment 46. It seems to me that sub-paragraphs (g) (j) and (k) are particularly important. They relate to the less formal types of evidence as opposed to court convictions and the like. These amendments have been eloquently and accurately spoken to by the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lord Macdonald, and I do not want to add too much, apart from a couple of examples. Before I give them, I shall make a point of principle. From my experience as a legal practitioner, it is clear to me that the earlier legal aid is given for the earliest possible intervention, the least harm is likely to be done. I urge the Government to accept that as a very sound principle. I will now give my two illustrations that lead me to that principle.

On one occasion many years ago, when I still practised family law, I was asked to obtain an injunction for a lady from a small town in rural Wales. I was then practising in Chester, and the town in which she lived was about 50 miles west of Chester. She had been driven by various forms of abuse by her husband, some financial—the deprivation of money for daily expenditure for herself and the children, so she could not even buy the children shoes—some emotional and some physical, eventually to go to that daunting place, the local solicitor’s office on the high street. The great solicitor Mr Jones—and he really was called Mr Jones—decided to apply for an injunction, and I was instructed.