Victims and Prisoners Bill

Lord Marks of Henley-on-Thames Excerpts

Committee stage
Wednesday 7th February 2024 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, I will make a very brief point, following on from that made by my noble and learned friend Lord Thomas of Cwmgiedd.

There is a group of victims who are particularly vulnerable: those with impairments in mental capacity, who may have difficulty in expressing and explaining what has happened to them and are vulnerable to misinterpretation of anything they say—they are in particular need of advocates who understand their needs.

Many years ago, I was asked by Gwent Police to assist them in a prosecution in relation to people with profound mental incapacity who had been abused and raped. It was very difficult to pull the evidence together, and it was a very steep learning curve to see how difficult it is to let the veracity of what they were trying to tell one be heard and come through. I hope the Government will recognise that there is a group in the population who are particularly vulnerable to exploitation and to sexual abuse by the very nature of having learning difficulties and impairments, and of course that also includes young people with autism—we know how vulnerable they are to influence, and to coercion into a situation that they believe.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, in this group, I will speak only to Amendments 78 and 79, in the names of the noble Baronesses, Lady Thornton and Lady Hamwee. They call for free independent legal advocates and free independent legal advice for victims of rape, and I support the principle behind them. I take the point made by the noble and learned Lord, Lord Thomas of Cwmgiedd, that they do not necessarily talk about advocacy in court, although Amendment 78 does talk about free independent legal advocates.

The noble Baroness, Lady Thornton, said that the amendments will not affect our adversarial system; nor will they affect it adversely. However, I hope that they will, if adopted, have an effect by ensuring that the interests and voices of victims are considered and heard throughout the criminal justice system, and—certainly for the purposes of these amendments—more comprehensively in rape cases, and that will be wholly beneficial.

These amendments lie at the heart of what this Bill is all about, which is to bring about a transformation in the way we look after the victims of crime. We have moved, but far too slowly. When I practised in the criminal courts a long time ago now—and this is not intended to be an exercise in reminiscence—as both prosecutor and defender, we were almost encouraged to take pride in the structure of criminal cases as a contest between the state—the Crown—represented by the prosecution’s lawyers, and the defendant, represented by independent barristers and solicitors, generally paid for by the state. The adversarial system was all. The victim, usually called the complainant—or in financial cases, the loser—was universally treated as no more than a witness, liable to be harshly cross-examined almost without restriction, and deserving of no extra consideration on account of the ordeal suffered as a result of the crime.

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[Earl Howe]

I have heard the strength of feeling on this, and I will be more than happy to take the issues raised back to my colleagues and officials in the department. I will be happy to write to noble Lords about this, and I would also be happy to arrange for my noble friend and interested Peers to meet me, or my noble and learned friend Lord Bellamy, to discuss the issues that have arisen.

I turn to Amendment 103, tabled by the noble Lord, Lord Hampton. We recognise the importance of ensuring that the distinct needs and experiences of children are reflected in the code of practice that the noble Lord mentions, and that is why we have included specific guidance in the draft code for handling victim information requests for children. I agree with the noble Lord that it is essential to make sure that the final code reflects best practice in this area, and that is why my noble and learned friend Lord Bellamy has instructed officials to review the list of statutory consultees for this code of practice.

I turn next to the amendments tabled by the noble Baroness, Lady Thornton, which seek to require the development of proposals for schemes to give victims of rape access to free independent legal advice and representation. I agree that it is extremely important that victims are confident in their rights and are aware of those rights, particularly when preparing for trial and when requests for their personal information are made; I found much that I could agree with much of the contribution from the noble Lord, Lord Marks.

We wanted to ensure that our understanding of this issue is as comprehensive as possible and, to that end, the Government asked the Law Commission to consider the merits of independent legal advice for victims as part of its comprehensive review into the use of evidence in sexual offence prosecutions. The consultation closed in September last year, and we expect the final report to be delivered in the autumn of this year. To avoid making changes at this stage that could pre-empt the outcome of the Law Commission’s review, and to ensure that we are considering all the evidence as a whole, we will consider the Law Commission’s report and respond in due course. There is no reason why the tenor of this debate should not form part of the Government’s deliberations once we have the Law Commission’s report in our hands.

Perhaps I could add something around the therapeutic support issue. Victims of rape should not be told that they cannot access the therapeutic support that they need to heal from the trauma that they have endured. The Crown Prosecution Service pre-trial therapy guidance is absolutely clear that therapy should not be delayed for any reason connected with a criminal investigation or prosecution. The guidance sets out clearly that it is for the victim to make decisions about therapy with their therapist and that criminal justice practitioners should play no role in the decision-making process.

In the rape review action plan, we recognised that victims of rape frequently experience intrusive requests for personal information. To improve that situation, we have taken a number of actions, including legislating through the Bill to introduce a statutory code for the police to ensure that requests for victim information are made only when necessary, proportionate and relevant to a reasonable line of inquiry. The police must also provide full information to the victim on what information has been requested, why it has been requested and how it will be used. A draft code of practice has been published. When it is finalised, it will be statutory, and police will have a duty to have regard to the code when making requests. I hope that that is helpful.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I am grateful to the noble Earl for giving way. I ask whether the code will, in fact, introduce what the noble Baroness, Lady Newlove, called a privilege against requests made for records of therapeutic interventions. That is one of the problems: therapy is deterred by the fear of a future request for notes to be disclosed. That is a very serious issue.

[Earl Howe (Con)]

I recognise the seriousness of the issue. I have no advice in my brief on that, but I will be happy to write to the noble Lord on that point.

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At the risk of boring everybody completely, I will speak briefly in support of Amendment 111, in that it prohibits unsupervised direct contact in specific circumstances. My only reservation relates to situations in which there has been or may have been some police investigation but bail conditions have not yet been set. It is sometimes hard to ascertain whether in fact a police investigation is still ongoing—and, believe it or not, the parties concerned do not themselves know. Although I support this amendment, I add that it has to be recognised that suitably supervised contact is not always possible to arrange. An appropriate friend or relative may not be identifiable or available to provide reliable supervision. Professionally supervised contact at a centre may involve delay or expense, and be unaffordable. Delays in the criminal process may also mean that the restrictions envisaged by this amendment could continue for a considerable time. However, despite those difficulties, with which practitioners are all too familiar, I consider that to be a worthwhile amendment.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, as we have heard, Amendment 82, the first in this group, is designed to prevent a parental alienation argument, usually relating to contact but sometimes to residence as well, being used by perpetrators of domestic violence or child sexual abuse to harass their victims through repeated applications to the family court.

The Government need no reminding of the background, because it was the Government who commissioned the panel on the risk of harm in 2020, to which my noble friend Lady Brinton referred. That was responsible for a significant change of thinking in this area. The assumption that ensuring that children should always continue contact with both parents unless the circumstances were exceptional had dominated courts’ thinking for many years and was given some statutory force, though not in absolute terms, by Section 1(2A) of the Children Act 1989. However, the panel found that there was a pervasive culture of disbelieving victims of domestic abuse, compounded by a pattern of abusive ex-partners abusing the courts’ processes by applications to the court, and effectively of the courts ordering contact, in particular in favour of abusive parents, against the wishes of the victim—the other parent.

Allegations of parental alienation—I accept that the term became something of a term of art, perhaps unjustifiably—are frequently made by abusive parents, and they still are, generally seeking contact but also residence. My noble friend Lady Brinton has given a detailed account of why the parental alienation issue has represented a significant failure of the family courts in recent years. The process involves the abusive parent claiming that the resident parent is opposing contact in an effort to alienate the child from the non-resident parent; essentially, it is the bad-mouthing allegation taken to extremes, in a way that is wholly unjustifiable. I will not repeat the persuasive account of the issue that my noble friend Lady Brinton has given. However, in these cases with which we are concerned, the victim’s allegations are generally true. We need to remember that the children may be put at risk by unwanted contact with their parent’s abuser.

Summarising the position in 2020, the Minister, the noble and learned Lord, Lord Bellamy, wrote in the ministerial foreword to the panel’s report:

“The Panel found that too often, adversarial court proceedings retraumatised victims. Allegations of domestic abuse were too readily disbelieved or dismissed, alongside poor risk assessments and siloed working. The report also identified a view amongst many respondents that courts often placed an undue emphasis on ensuring children had contact with both parents”.


In its recommendations, the panel recommended a series of principles, which included:

“The court and those working within the system will be alert to those seeking to use … processes in an abusive or controlling way. Such behaviour will be actively identified and stopped”.


However, the issue persists.

Amendment 82 is directed at preventing victims being treated as responsible for parental alienation if they oppose applications made by perpetrators of violence against them to the courts. The amendment, as framed, would prevent a victim of domestic violence being considered as responsible for parental alienation.

The Committee may accept that the amendment as it stands is too absolute. As the noble Baroness, Lady Fox of Buckley, pointed out, supported by the noble Lord, Lord Meston, the amendment as drawn purports to prevent a court reaching a conclusion of fact, which it ought to be entitled to reach in a case where the evidence supports that finding. Nevertheless, I suggest that, in the view of the evidence that the panel and many other experts have considered, the direction of travel of the amendment is right. The interventions of my noble friend Lady Brinton and the noble Baroness, Lady Chakrabarti, in response to the speech of the noble Baroness, Lady Fox of Buckley, made it clear what the point and intention of this amendment are. If it needs redrafting, that could be dealt with between now and Report. The aim is to prevent perpetrators of domestic abuse continuing that abuse by transferring it to the court, abusing the court process with unwarranted accusations against their victims of turning the abusive parent against the victim.

Amendment 111 would reflect in the Bill a principle implicit in the findings of the panel: that in domestic abuse cases the court should disapply the Section 1(2A) presumption that parental involvement of both parents is generally in the interests of a child or furthers a child’s welfare. Furthermore, by the amendment, unsupervised contact should not be ordered in a case where the parent concerned is a defendant or a potential defendant in a case of domestic abuse, child abuse or a sexual offence. The level of supervision specified involves the presence of an approved third party at all times during contact, to ensure the physical safety and emotional well-being of the child, but the court would be left to determine the precise nature and location of the supervised contact permitted. I suggest that that represents a relatively minimal level of safeguarding. I accept entirely the caution expressed by the noble Lord, Lord Meston, as to the difficulty sometimes of arranging supervised contact. However, that difficulty needs to be weighed against the danger of exposing children to unnecessary risk, and I suggest that the amendment provides a reasonable balance.

Amendment 110 would ensure that anyone carrying out psychological assessment of a person as a victim for family proceedings would be suitably qualified by being regulated by the Health and Care Professions Council. I accept again the point that the noble Lord, Lord Meston, made, that often the perpetrator needs psychological assessment as well. Whether the qualification for making psychological assessments should be as is suggested—that is, regulation by the Health and Care Professions Council—is a matter for discussion. However, suitable qualification is always important.

Amendment 117 would protect victims from orders to disclose medical records to proven or alleged perpetrators of domestic abuse against them, unless the circumstances were exceptional. We have been through much of the detail of that and the principles behind it in relation to group one, and I suggest that the amendment is important in just the same way as the amendment in group one.