Domestic Abuse Bill

Debate between Lord Rosser and Lord Marks of Henley-on-Thames

Report stage
Wednesday 10th March 2021 Lords Chamber

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

My Lords, I expressed my concern in Committee at the proposal to abandon the presumption in subsection (2A) of the Children Act 1989 where there has been domestic abuse that has affected the child or the other parent. My concern was then, as it is now, that under the Children Act the welfare of the child must be the court’s paramount consideration.

The presumption requires courts, when making orders about arrangements for children, including their living arrangements and arrangements for contacts, to ensure that

“unless the contrary is shown, that involvement of that parent in the life of the child concerned will further the child’s welfare”.

That presumption is supported by a great deal of evidence that for children to maintain a relationship with both their parents following a breakdown of the parents’ relationship is generally in their best interests. The presumption has stood the test of time. It serves to remind custodial and non-custodial parents in entirely non-abusive relationships that have nevertheless broken down that their responsibility is to try to help their children to maintain relationships with the other, non-residential parent.

But the presumption is rebuttable, hence the words

“unless the contrary is shown”.

In many cases involving domestic abuse, judges will not order contact, because the best interests of the child will not be met by their making an order for contact. That covers the cases that I suspect the noble Baronesses, Lady Uddin and Lady Jones of Moulsecoomb, are worried about.

However, as I attempted to demonstrate in Committee, there may be cases where acts of abuse should not lead to the conclusion that contact should be cut. In some cases, the child will have not witnessed, known about or been put at risk by an act of abuse, which may have been a completely isolated act, committed against its parent. I am reluctant to disagree with the noble Baroness, Lady Jones of Moulsecoomb, because I so rarely do, but I do on this occasion. I understand her concern and that of the noble Baroness, Lady Uddin, to ensure that children are protected from the harm of unsuitable and often dangerous contacts, but to provide that protection is the job of judges. It is not the task of Parliament to make absolutist rules that treat all cases where allegations of abuse are made in the same way. Judicial discretion in these cases should be left as it is, exactly for the reasons advanced by the noble and learned Baroness, Lady Butler-Sloss.

I also do not accept that the proposed new subsection (4) should pass into law. It would provide that no court should make an order for unsupervised contact with a parent who is, broadly, facing proceedings for a domestic abuse offence, is involved in a fact-finding hearing for a domestic abuse offence or who has a criminal conviction for such an offence. There are two points that are conclusive against such a clause. First, in the circumstances of paragraphs (a) to (c) in the proposed new subsection (8) of Section 9 of the Children Act, there would have been no finding of guilt of domestic abuse. The presumption of innocence has to apply, a point well made by the noble Baroness, Lady Fox of Buckley. A judge hearing a contact application should not be barred by a statutory prohibition from making a finding of fact and an order after hearing evidence if they take the view that the welfare of the child would be best served by making such an order for contact, just because there is a statutory prohibition that operates without a finding of fact.

Secondly, this suggested prohibition would not be limited to cases where the alleged offending party is said to have been involved in domestic abuse against either the child or its other parent, so it would forbid a contact order between the prohibited parent and a child from an entirely different relationship. A court would be forbidden from making an order for contact with a child from a father’s relationship with a former partner, with whom a good relationship had been maintained by him and by the child, because of an allegation of domestic abuse lodged by a subsequent partner. Such an absolute prohibition would be wrong, and I cannot support it.

[Lord Rosser (Lab) [V]]

My Lords, the proposed new clause in this amendment moved by the noble Baroness, Lady Jones of Moulsecoomb, would disapply the presumption that parental involvement furthers a child’s welfare in cases where there has been domestic abuse. It would also prohibit unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences where there are ongoing criminal proceedings for domestic abuse or where the parent has a criminal offence for domestic abuse. I moved a similar amendment in Committee which did not receive the backing of a number of speakers in the debate or of the Minister.

In his response in Committee, the Minister said:

“I have a great deal of sympathy for the aims of these amendments, and I agree that more needs to be done to ensure that the courts take proper account of the impact that domestic abuse can have on children’s well-being and safety.”


He went on to say that

“following the recommendations from the Expert Panel on Harm in the Family Courts, the Government launched a review on the presumption of parental involvement”

which

“will focus on the presumption … and the impact on children’s welfare of the courts’ application of these provisions.”

He argued that it would

“be premature to amend the legislation relating to the presumption … before gaining the in-depth evidence from the review.”—[Official Report, 3/2/21; col. 2222.]

However, we should not forget that Women’s Aid’s Nineteen Child Homicides documents the cases of 19 children in 12 families who were killed in circumstances relating to child contact by a father who was the perpetrator of domestic abuse. The Expert Panel on Harm in the Family Courts said that it had

“received sufficient evidence to conclude that in the cohort of cases described in submissions the presumption further reinforces the procontact culture and detracts from the court’s focus on the child’s individual welfare and safety.”

The report also states:

“The panel is clear, however, that the presumption should not remain in its present form.”


There is thus some clear and, indeed, tragic evidence that the present arrangements relating to the presumption of parental involvement as opposed to solely what is in the best interests of the child, including its welfare and safety, are just not delivering the protections they should. However, in the light of the concerns expressed by some noble Lords in Committee, which have been repeated today, and the current review of the presumption of parental involvement, we did not put down the amendment for Report. Instead, we will continue to pursue this issue outside the discussions and debates on the Bill.

Policing and Crime Bill

Debate between Lord Rosser and Lord Marks of Henley-on-Thames

Report: 3rd sitting (Hansard): House of Lords
Monday 12th December 2016 Lords Chamber

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

My Lords, I will address a couple of points briefly. First, I will address the difference between Amendments 182 and 187 on the central question of whether it is right to extend pre-charge anonymity to all offences or to sexual offences only. I completely appreciate the logic of the position adopted by the noble Lord, Lord Marlesford, and the noble and learned Lord, Lord Mackay of Clashfern. However, I believe that there is a distinction to be drawn between sexual offences on the one hand and other offences on the other.

I believe that the noble and learned Baroness, Lady Butler-Sloss, was right about this. It seems to me that a particular stigma attaches to accusations of sexual offences, which is generally more difficult to rebut where such accusations are made than where an accusation is made of another offence against the person or of offences against property. It is often far more difficult in sexual offence cases to clear conclusively and for ever the name of a suspect who is not charged than it is in the case of other offences. As the noble and learned Baroness pointed out, there is also the interest of the press in sexual offence cases. I suggest that that is why so much publicity has been given to sexual offences, particularly historical offences, in this debate and in your Lordships’ House generally.

A further point is that the nature of the evidence in sexual offences tends to be historical and tends to involve pitting the word of the claimant against the word of the victim. In those circumstances, the no smoke without fire rubric gains currency. I see this as a question of balance in which the balance in the all-offences case mentioned by the noble Lord, Lord Marlesford, comes down against pre-charge anonymity, whereas it comes down in favour of it in respect of sexual offences. It is a case of the robustness and security that we as a society allow to the presumption of innocence.

The second question I wish to address is that of the stage at which anonymity should cease. I entirely take the point made by the noble and learned Lord, Lord Judge, that the arrest is part of the criminal process and therefore that there is, generally speaking, a public right to know because the liberty of the subject is being taken away at that early stage. However, I cannot get away from the central point that arrest can be effected by a police officer on reasonable suspicion only. That reasonable suspicion frequently arises when the suspect has been given no chance to offer a full explanation which, if he were offered that opportunity, might dispel the suspicion altogether—whereas, to justify a charge, it has to be shown that there is evidence which would, if it were accepted at a trial, lead to a conviction by a court of law. I believe that that distinction is important, and that again the balance is against lifting anonymity at arrest and keeping it therefore at charge.

I then come to the question of witnesses coming forward. I completely appreciate the concern that exists around the House and outside it that witnesses should not be deterred from coming forward. But I also agree with the point made by the noble Lord, Lord Lamont, that in most cases, if evidence from further witnesses is available, it will come forward after charge, so that forbidding pre-charge publicity will delay further evidence rather than prevent it coming to light altogether. There is nevertheless a concern, raised by the noble Lords, Lord Faulks and Lord Pannick, about the possibility of pre-charge anonymity preventing genuine witnesses—notably other victims—coming forward with allegations that might lead to a suspect being charged when he would otherwise escape justice altogether. That is why the detail of the proviso inserted in the amendment of my noble friend Lord Paddick addresses this point precisely, and it is very different from the amendment that was presented in Committee.

Under this amendment a judge is entitled to say that he is,

“satisfied that it is in the interests of justice to remove or vary a restriction provided for”,

and to,

“direct that the restriction shall be lifted or shall be limited to such extent and on such terms as the judge considers the interests of justice require”.

The amendment further states:

“In considering an application … the judge shall have particular regard to the possibility that further witnesses might volunteer evidence relating to sexual offences allegedly committed by the person”.

I believe that that is the best we can do in striking a balance between encouraging witnesses to come forward and enabling them to know about allegations in appropriate cases, and protecting suspects from unjust publicity that causes the dreadful consequences of which we have all heard.

It is all a question of balance and I appreciate that it is a very difficult balance to strike. But I suggest to your Lordships’ House that the amendment proposed by my noble friend Lord Paddick strikes that balance accurately and should be supported.

[Lord Rosser (Lab)]

My Lords, I note that the noble Lord, Lord Marks of Henley-on-Thames, concluded his comments by saying that it is a matter of balance. I would concur with that view, but the balance concerned depends on which side of the fence you feel you might fall. I do not intend to detain the House for too long, since we have already had a number of Members expressing a desire to hear from the Minister. Nevertheless, I do intend to set out our position.

We do not support either of these amendments. Amendment 182 provides for pre-charge anonymity in all cases, including sexual offences, except where a magistrates’ court decides otherwise. Amendment 187 provides for pre-charge anonymity where a person has been accused of committing a sexual offence unless a judge decides otherwise. I am not a lawyer, and it may well be that my lack of knowledge of the law will be displayed in what I have got to say. But at present, as I understand it, there is an assumption of anonymity before the point of charge, except where the police decide to use their discretion in cases where they believe that disclosure of the identity of the person suspected but not charged is likely, for example, to lead to further evidence coming forward which will enable a stronger case to be made, which will enhance the likelihood of a successful prosecution.

We had a lengthy debate in Committee on the issue of pre-charge anonymity. We on this side acknowledged that a case could be made for going down this road. However, we also referred to the reality that there is evidence—for example, in sexual offence cases, where disclosing the name of the person alleged to have committed such offences has led to other victims coming forward and to a stronger case being able to be made against the accused to secure a successful prosecution. We have evidence that victims of sexual offences are often reluctant to come forward because of feelings that they will not be believed if it is their word alone against that of the alleged perpetrator. This is particularly so where that individual is a well-known and respected—at least, respected at that time—figure. We know too that there are sometimes feelings of shame about such offences, or feelings that such offences have to be tolerated, and a desire not to talk about it. These are feelings that are being expressed now with respect to the rapidly emerging scandal of sexual offences against young people in the football world—people are coming forward now that they know they are not alone.

We know too that the reporting of and convictions for sexual abuse cases are very low. Perhaps we should be spending some time considering why that is the case. We also need to take into account the fact that victims of sexual abuse—innocent people in spades—have had their lives darkened, including when the sexual offences were committed by well-known public figures. Of course, the victims themselves are rarely well-known public figures. During the passage of the Sexual Offences Act 2003, one reason we gave for not changing the law was precisely to avoid giving the impression that there is a presumption of doubt about the credibility of the complainant in sexual offence cases. I am afraid I do not wholeheartedly agree with what I think the noble Lord, Lord Paddick, was saying. Frankly, granting anonymity specifically for those suspected of sexual offences could imply that a person making a complaint in respect of such an offence was not to be believed in the same way as someone making a complaint involving another individual in relation to any other kind of serious offence, such as murder, fraud or, yes, child cruelty.

Policing and Crime Bill

Debate between Lord Rosser and Lord Marks of Henley-on-Thames

Committee: 5th sitting (Hansard): House of Lords
Wednesday 16th November 2016 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, I support the amendment, although there should of course be amendments to the drafting. I accept the point made by the noble Lord, Lord Pannick, about anonymity acting to the detriment of the accused without his consent. I suggest that consideration be given to redrafting the amendment to permit the accused to waive the right to anonymity. On reconsideration, I should add that I consider my earlier intervention on the noble Viscount, Lord Hailsham, to be ill advised: the amendment does not in fact cover communication privately by police officers and I accept that it should.

There has been widespread discussion in the press of the independent review by Sir Richard Henriques into the failure of Operation Midland, the reliance placed on accounts given by, in particular, one unreliable witness and baseless allegations that had been made. Those allegations were, as has been said, permitted to do untold harm to the reputations of a number of prominent men who had given their lives to public service.

The noble Lord, Lord Pannick, reminded us that Sir Richard makes the case for increased anonymity, but his recommendation is that there should be anonymity only pre-arrest. He draws back from recommending anonymity at all stages prior to charge. His reasoning, in paragraph 1.67 of his report, is as follows:

“I consider it most unlikely that a Government will protect the anonymity of suspects pre-charge. To do so would enrage the popular press whose circulation would suffer”.

If that is the reasoning behind his conclusion, I disagree. He goes on to say:

“Present arrangements, however, have caused the most dreadful unhappiness and distress to numerous suspects, their families, friends and supporters”.

In that, Sir Richard is plainly right.

The question of when anonymity should be lost is one of balance. For my part, I do not believe that protection ought to be lost at the date of arrest, when the arrest can be made—as the noble and learned Lord, Lord Judge, points out—on reasonable suspicion only. I accept that the consideration that comes into play is whether, as he suggests, anonymity should apply only to sexual offences, rather than more widely. In my view, the particular position relating to sexual offences justifies the difference when we weigh the balance. He is of course right to say that what needs to come into the balance is the risk of injustice flowing from anonymity, just as there may be—indeed, we know there is—a risk of injustice flowing from the exposure that comes from the lack of anonymity.

As we all know, suspicion—even reasonable suspicion sufficient to ground an arrest—can turn out to be entirely misplaced. There may be a reasonable and truthful explanation for the circumstances that give rise to the suspicion justifying an arrest. While those circumstances may demand that explanation, an arrest can legitimately take place before the suspect has had a chance to give the full explanation required. When a suspect is charged, however, it is on the basis of a different test and different circumstances. First, the police must have the evidence that they believe will sustain a prosecution and conviction, if not refuted. Secondly, the suspect will generally have had a full opportunity to give a considered explanation of the circumstances, if there is one. Public exposure damages a suspect’s family life, his privacy and his reputation—for we are talking about men predominantly. The damage is largely irreversible, even where allegations are later withdrawn or found to be baseless. Death has sometimes made the damage and injustice total.

When striking a balance between the right of a suspect to be protected from that damage and the right of the public to know, the balance tips, in my view, in favour of the public’s right to know at the point of charge, not at the point of arrest. I am not persuaded by the argument that pre-charge anonymity will prevent other victims coming forward altogether. It may be that there will be a delay in such victims coming forward and they will do so after charge, rather than after arrest. That gives some opportunity for witnesses to come forward—as in the case of the murder client of the noble and learned Lord, Lord Judge, which of course could happen in the case of a sexual offence client as well. There is delay to the stage at which anonymity is lost, but it is not lost for ever and there is no reason to suppose that others will not come forward at that stage. My noble friend Lady Brinton’s point, that there should be protection also for the victims from early disclosure until it is established by charge that there is going to be a case, is an important one. I agree with my noble friend Lord Beith that the point made by the noble Lord, Lord Pannick, on gossip and speculation, applies wherever there is going to be anonymity at any stage. The argument that we have to address is at what stage anonymity should be lost.

The only reasonable point that can be made against this amendment is that there may be cases where further witnesses might come forward with legitimate and admissible similar fact evidence which might justify the charge where otherwise no charge would be brought. However, for my part, I have concluded that such cases will be rare and that most can be met by the proviso included—though perhaps to be redrafted—in the amendment. It is a question of balance but, in my view, the possibility of similar fact evidence being lost and justice thereby being thwarted is of lesser weight than the inevitable damage caused by premature exposure of an innocent suspect’s identity.

[Lord Rosser]

My Lords, as we have seen from this debate, this issue raises strong feelings. I will say before I go any further that the overwhelming majority of those who have spoken so far will not be in agreement with what I have to say. It has not been our policy, as my noble friend Lord Campbell-Savours in effect said, to support anonymity for rape suspects before they are charged or indeed those suspected of other sexual offences. There are almost no cases, at least as I understand it, where suspects are specifically granted anonymity in this way in our legal system. I appreciate that the amendment enables a judge to remove the restriction on identifying the person concerned where they are satisfied that doing so would be in the public interest. But we have yet to be convinced that this test will not in reality lead to fewer prosecutions and fewer victims of sexual assault coming forward than is the case even now. Granting anonymity specifically for those suspected of sexual offences could imply that a person making a complaint in respect of such an offence was not to be believed in the same way as someone making a complaint involving another individual in relation to any other kind of offence, such as child cruelty.

During the passage of the Sexual Offences Act 2003, one reason we gave for not changing the law was precisely to avoid giving the impression that there is a presumption of doubt about the credibility of the complainant in sex offence cases, as well as the fact that naming a suspect in such cases can lead to other victims coming forward—as it did, for example, in the cases of Rolf Harris and Stuart Hall, and the case for a credible and successful prosecution was enhanced as a result. Many of Jimmy Savile’s victims said they thought they were the only ones, and doubted whether anyone would have believed them if they had come forward, bearing in mind the celebrity status of the offender. The position, and their approach, changed somewhat when they found out, through the absence of pre-charge anonymity, that they were not the only ones.

In the light of what has been said in the debate, perhaps it is worth stating that the victims of sexual offences have, of course, also had their lives darkened—not least when the sexual offences were committed by well- known public figures. Of course, the victims themselves rarely are well-known public figures.

I understand that the coalition floated plans to introduce anonymity for rape suspects in 2010, but after carrying out an assessment they concluded there was insufficient evidence to justify a change, and that a change would be likely to have a negative impact on justice for rape overall.

The argument is made that without anonymity, those suspected of sexual offences would suffer shame and harm to their reputation—usually as a result of how the media choose to report such cases even if the person has not been, and never is, charged with any offence. That may be quite true in some cases—more so if the police mishandle their investigation in the way highlighted in the report on the Metropolitan Police released a week or so ago. This argument would also apply, presumably, if someone were accused of murder, serious assault, child cruelty, major fraud or other forms of serious dishonesty and corruption—as we saw with the naming in the media of an alleged suspect, who had not committed the offence, in a particularly unpleasant murder case in Bristol a few years ago. The police have discretion over the naming of suspects, and should do so only when they have good reason to suspect that doing so might produce corroborating evidence that would increase the likelihood of a successful prosecution.

As for the concerns sometimes expressed about false allegations, I believe I am right in saying that the Crown Prosecution Service has found that the number of false allegations is no higher for sexual offences than for any other type of crime. Many would argue that the real problem is still the reluctance of victims to report rape and other sexual offences, and the reasons for that. It has been suggested—although I cannot vouch for this as the correct figure—that perhaps only 15% of rapes are ever reported to the police. Young people and children are targeted more than most by those who commit such offences, who are often repeat offenders. The report on child sexual abuse in Rotherham found that when offenders discovered, over time, that they could act with impunity and were unlikely to be challenged, they simply increased the scale and level of violence in their offending.

We understand why the approach called for in the amendment is being pursued. We do not argue that no case can be made for the amendment, but rather that the case that can and should be made against it is stronger and more powerful. Unless firm evidence can be produced that the terms of the amendment would not result in more perpetrators of sexual offences escaping prosecution because others who may have been the subject of similar assaults do not come forward—because they are unaware that the individual is being investigated, and instead feel that if they did come forward they would be on their own—the amendment cannot be supported.