Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Butler-Sloss Excerpts

Wednesday 18th January 2012 Lords Chamber

Moved by

[Baroness Butler-Sloss]

42: Schedule 1, page 120, line 11, at end insert—
“( ) Civil legal services provided to an adult (“B”) in relation to a court hearing in a matter arising out of a family relationship between B and another individual (“A”) where B has abused A or there is the risk of such abuse and where the court certifies that due to the probability of cross-examination of A there is a need for both parties to be represented at that hearing.”

[Baroness Butler-Sloss]

My Lords, this is the first of a group of amendments relating to domestic violence. Some of them overlap and are repetitive but they all have the same desire at their core—that the Government should listen a little more carefully to the very real concerns of many people about the incidence of domestic violence and the fact that the Bill, if not improved, may do a lot of damage to extremely vulnerable people.

I have also put my name to Amendments 45, 46 and 48. Amendment 42 relates to a situation where a woman alleges domestic violence against a man and he is not represented. He will therefore be asking her questions about the abuse which she says he has perpetrated. If that abuse has occurred, it will be an extremely painful experience for her to undergo that questioning without the intervention of a lawyer. I well remember the Minister pointing out on Monday that judges are there to keep matters in order. I can only say to him that that is not entirely easy because there is a right of cross-examination and any defendant has a right to put his or—sometimes a woman is an abuser—her case to the person making the allegations. Therefore, as I know from experience, the judge’s ability to stop the sort of questions that will be asked will be quite limited. Some of those questions will have to be asked, but being questioned by the man who has committed the sometimes very serious domestic violence is in itself a form of abuse against the woman; as I said, occasionally a man is the victim.

I hope that the noble and learned Baroness, Lady Scotland, will be speaking to Amendments 45, 46 and 48, so I shall make only one or two brief points about them. I notice that Amendment 44 is very similar to Amendment 45, although our amendment is slightly broader. The definition of domestic violence currently proposed is, in my view and I think the view of many others, inadequate and requires to be much broader, particularly in relation to threatening behaviour and psychological behaviour. Some men drive their wives or their partners almost to suicide by never putting a finger on them; in many ways, psychological and threatening behaviour is even more dangerous and even more debilitating than the man who returns home drunk on Saturday night and knocks his wife around but who does not ill treat her from Sunday to Saturday. Psychological abuse is usually daily and nightly and, therefore, it requires a rather broader interpretation.

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[Lord McNally]

I will take this back but, again, I am speaking as a layman to professionals. As far as I understand it, there are increasingly ways in the courts of preventing that kind of face-to-face, aggressive cross-examination. I think that there was a case recently which caused a good deal of public comment and distress. I will take the matter away and take further advice but, as I say, both my impression as a layman and the advice that I have are that there are safeguards to prevent that kind of brutal, face-to-face, intimidating cross-examination. I hear what my noble friend says and I will take further advice on the matter.

I turn to Amendments 43, 44, 45, 46 and 48 and start by reiterating why we are taking most private family law cases out of the scope of legal aid. The cost of legal aid as it stands is, we believe, simply unsustainable, and legal aid resources need to be focused on those cases where legal aid is most needed. Accordingly, for most divorces, child contact applications or ancillary relief applications to divide family assets, legal aid will no longer be available. We believe that it is right to encourage families, where appropriate, to resolve their disputes without going to court. We want to prioritise mediation, which can be cheaper, quicker and less acrimonious than contested court proceedings. Legal aid will therefore remain available for mediation in private law family cases. We estimate that we will spend some extra £10 million a year on mediation, taking the total to £25 million a year.

We accept, however, that mediation might not be suitable in every case—particularly, as we made clear, in cases involving domestic violence. It is important to remember that the inclusion of this provision is to ensure that legal aid remains available for private family law cases where there is evidence of domestic violence, creating a disadvantage for one party, and cases where a child is at risk of abuse.

Amendments 44 and 45 would put in paragraph 10 of Schedule 1 to the Bill, in place of the existing definition of abuse, parts of the definition of domestic violence first used by the Association of Chief Police Officers but subsequently more widely adopted for operational purposes—although not, it should be noted, by the courts. The existing definition of abuse used in the Bill is a broad and comprehensive one, having been drafted deliberately and explicitly so as not to be limited to physical violence. It should be noted that it is used elsewhere in Schedule 1: in paragraph 3, which provides for legal aid to be available in relation to the abuse of a child or vulnerable adult, and paragraph 11, which provides for legal aid to be available for a person seeking an order to protect a child at risk of abuse.

[Baroness Butler-Sloss]

I hope that the Minister will forgive me for interrupting him. Can he explain what is wrong with the ACPO definition and why it is preferred to have a different definition, twice to be found in the Bill but not to be found elsewhere? As far as I know, there has been no broad definition by the judges of domestic abuse, which has been referred to in all its various forms. I am absolutely certain that the courts accept the ACPO definition.

[Lord McNally]

I will write on this matter, but I think that here the noble and learned Baroness is wrong. As far as I understand it, the Supreme Court did not accept the ACPO definition of domestic violence. If the noble and learned Baroness will bear with me, I will come to that point in the brief—there is a part that deals with this.

Any consideration of the definition in one paragraph should not be undertaken entirely in isolation from the others, lest confusion should result. The definition should also be seen in the light of the Bill’s structure and the purpose of the paragraph where it appears.

I want to know—“like most normal people”, I was going to say—why on earth, if there is a perfectly good ACPO definition, we do not use it. The Supreme Court held that domestic violence could extend to psychological abuse but did not adopt the ACPO definition. However, the majority of the court indicated approval of the approach of what is now Practice Direction 12J, supporting the Family Procedure Rules 2010. For its purposes, it defines domestic violence as,

“physical violence, threatening or intimidating behaviour and any other form of abuse which, directly or indirectly, may have caused harm to the other party or to the child or which may give rise to the risk of harm”.

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[Lord McNally]

I will very happily think about it and I naturally assume that the noble and learned Baroness is trying to help me. I am very grateful for that. This reply and this whole debate will need to be looked at to see whether we are achieving our real objectives of getting something that is fit for purpose—although I hate using that phrase—in terms of addressing a matter of genuine concern right across the House. There are no differences on this and I freely admit that I do not have the noble and learned Baroness’s detailed experience of these matters. I hope that she will accept that I share her commitment that we get this right.

It may be helpful to give some idea of the prevalence of those forms of evidence. About 24,100 domestic violence orders were made in 2010; about 74,000 domestic violence crimes were prosecuted in 2009-10; and there were 53,000 domestic violence convictions. About 43,000 victims of domestic violence were referred to multi-risk assessment conferences in the 12 months up to June 2010. Clearly, those numbers will overlap to a certain extent but, to compare, the Legal Services Commission funded legal representation in about 69,000 private family law cases in 2009-10, not including legal aid for protective injunctions. The forms of evidence we intend to accept will meet a very high standard of objectivity. We are concerned that many of the additional forms of evidence suggested in the amendments would rely on the word of those involved and provide an incentive to make allegations where none presently exists. However, I also heard what both the noble Lord, Lord Macdonald, and the noble and learned Baroness said.

Let me be clear. We are not questioning the integrity of genuine victims. However, during the legal aid consultation, concerns were expressed about providing an incentive for unfounded allegations. Accepting self-reporting without objective evidence would prevent us from focusing assistance on those victims of domestic violence who would be unable effectively to present their case against the other party because of the history or risk of abuse by that party. Both amendments referred to evidence from professionals in a variety of roles. We have widened our criteria, so that legal aid will be available where the victim has been referred to a multi-agency risk assessment conference as a high-risk victim of domestic violence, and a plan has been put in place to protect them from violence by the other party. Those referrals can be made by a range of professionals. Further, a finding of fact in the court that domestic violence has occurred will trigger legal aid and the court will be able to assess any relevant evidence.

Amendment 48 would prevent a time limit applying to any evidence. We have already said that a 12-month period, where relevant, will apply, but we consider that 12 months will be an appropriate period to protect victims and enable them to deal with their private law issue. The point made by the noble and learned Baroness about an intervening prison sentence would not interfere with that rule. If the criteria were to rise again—for instance, if a second protective injunction is made—the period would start again. It is also important to remember that legal aid will remain available for exceptional out-of-scope cases where the failure to provide such funding would amount to a breach of an individual’s right under the European Convention on Human Rights, in particular Article 6.

This has been one of the most important debates on the Bill because, as all those who have contributed said, it is essential that we get this right. There have been some very well informed and committed speeches. I have put on record the Government's approach, which is to get it right on domestic violence and the legal aid that we provide to those who are subject to it. With that, I hope that the noble and learned Baroness and others will not press the amendments today but allow me to go away, study the debate and the proposals made, match the commitment that we all share to what is in the Bill and return to the matter on Report.

[Baroness Butler-Sloss]

My Lords, I thank all those who, with a great deal of knowledge, have contributed to this important and anxious debate. It is obvious that the Government are entirely committed to doing their best to combat domestic violence, so the only issue between the various speakers in the debate has been the best way to achieve it in the legislation before the Committee.

I am very grateful to the Minister for his obvious concern, and I hope that he will go away and think about what those of us with some knowledge of these matters have said. If I may respectfully say so, it is equally important that the Lord Chancellor reads and takes account of what has been said.

[Lord McNally]

That can be taken as implied. I assure the noble and learned Baroness that when I tell him who has spoken and what they have said, he will listen. Taking up the point made by the noble Lord, Lord Clinton-Davis, it is not that we do not talk to each other; we are following the process of the Bill. I am grateful that the Committee is taking this approach, as we can look at the arguments that have been made and think very hard about the issue before Report. I assure the noble and learned Baroness that when I say that I shall be taking the matter away, I mean that I shall be taking it back to the Lord Chancellor.

[Baroness Butler-Sloss]

I thank the Minister. I found it absolutely irresistible to say that. Each of the points that we have been dealing with is important but two of them are particularly so. The first is the definition. I think that we might all do more work in looking at the definition—in particular, by accepting the Minister’s invitation to see whether the wording in Schedule 1, as he has explained it, really does meet the ACPO requirements. If it does not, we should ask why not, and to what degree it does not meet them.

The second point is the very important list in Amendment 46. With respect, I would adopt the suggestion of the noble and learned Baroness, Lady Scotland, that these formulae for triggering legal aid in domestic violence should be in the schedule. As I understand it, the Minister’s alternative suggestion is that they should be in the regulations. It would be enormously helpful, before Report, to have a rough draft of what the regulations are likely to provide so that we may know that what we are all worried about will be found in them. The Merits of Statutory Instruments Committee, of which I am a member, is all too well aware that a statutory instrument either comes in or goes out. There is absolutely no possibility of amending it unless the government department is prepared to take it back and rewrite it. It would be much better if we knew in advance what was going to be in the regulations, rather than having to attack a statutory instrument at a later stage, which is always an unhappy situation. However, as I said, I am personally very comforted by what the Minister has said.

I want to make one point about Amendment 42. I suggest that the advice that the Minister receives is theoretical rather than practical and on the ground. I wonder whether any of those who have given him advice about what goes in court appreciates that a defendant always has the right to put his case. That is the point that I made in my preliminary observations and it was a point also made by the noble Lord, Lord Carlile. The judge cannot stop that, but it can be a real extension of the domestic violence. I pursued that matter because one has to bear it in mind. Judges can ameliorate the position but they cannot prevent the defendant having the right to put his case. If he does not have that right before the judge, he can appeal to the Court of Appeal and ultimately to Strasbourg under the articles of the convention. Therefore, human rights apply to the defendant as well as to the victim. That is the problem and it is why legal support for the defendant would be a protection for the victim. Having said that, I beg leave to withdraw the amendment.

Amendment 42 withdrawn.

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Moved by

[Baroness Butler-Sloss]

47: Schedule 1, page 121, line 47, at end insert—
“( ) Civil legal services provided to an individual who has, or it is alleged will, put the child at risk of abuse in relation to a court hearing in a matter in relation to the orders and procedures set out in sub-paragraph (1), and where the court certifies that due to the probability of cross-examination there is a need for them to be represented in that hearing.”

[Baroness Butler-Sloss]

This is another aspect of a situation in which the possible perpetrator, unrepresented, cross-examines a witness. The Minister said in respect of an adult victim of domestic violence that they would not necessarily be the most vulnerable of the people who come before the courts. The amendment relates to the most vulnerable because it relates to the pretty unusual, but not absolutely exceptional, situation in which a child has made allegations against the father not in a public law case but in a private law case. Norgrove, in the family justice review, underlines the fact that a proportion of abuse cases come through the private law sector. In that sort of case, the father has the right—it could be the mother, although generally it is the father—to cross-examine the child if the child is making the allegations and comes to court. If the father cross-examines the child about the abuse that the child has said he or she has suffered at the hands of the father, that is a further form of abuse of a really appalling kind. It would be rare and there would be very little expense. It would happen only where the judge said that the child has to give evidence—in most cases children do not give evidence—and only where the father wanted to ask the child questions.

Again, the father or the mother who is accused of abuse has the right to put the case to the child that it is not true. This can be done by a lawyer. It is upsetting for a child, but it can be done with a considerable degree of discretion. It is done very regularly in the criminal courts by barristers and solicitors, many of whom have had training in how to ask questions. What on earth would the Minister think of an eight or nine year-old who is able to explain very clearly what has happened to him or her being cross-examined by the father about the intimate allegations of how the father has behaved? I beg to move.

[Baroness Scotland of Asthal]

I support the noble and learned Baroness in this matter. She is absolutely right that these cases are rare, but unfortunately they tend to be the most painful. The opportunity for the judge who is managing such a case to be able, if he or she thinks it appropriate, to invite legal representation for that part of the case, and there being legal aid available for the judge to so invite, may be extremely important. It is very unlikely that this avenue would be used very often, but I respectfully suggest that it would be important, in support of what the noble and learned Baroness, Lady Butler-Sloss, says, for that opportunity to be available for the better protection of the child, whose best interests would in those circumstances of course be paramount.

[Lord McNally]

My Lords, I do not want to get into a situation where I take things away and give the impression that the case has been made. However, again, I must listen to a former president of the Family Division and a former Attorney-General when they say that there is a problem. The noble and learned Baroness, Lady Butler-Sloss, said that my advisers cannot have much experience of what happens in court. I can only say that our position is based on the assumption that judges are able to manage their cases in such a way as to prevent the kind of confrontation that we are concerned with here.

I will go away and take further advice on this. It has been examined in the other place. I do not want to leave a situation where very rare cases are not covered. On the other hand, we do not want automatically to extend funding to alleged perpetrators because that is not our line of travel as we try to focus aid on the most vulnerable and needy. It would be a mistake to assume that the only means of protecting a prospective witness, however vulnerable or young, is to fund representation for the prospective questioner. However, the two noble and learned Baronesses speak from considerable experience. I will test that experience with my advisers. If the noble and learned Baroness will withdraw her amendment, I will either reassure her before Report or we will come back to this then.

[Baroness Butler-Sloss]

I am very grateful for the support and experience of the noble and learned Baroness, Lady Scotland. As a distinguished former family practitioner she knows exactly what I have been talking about. There are only two former family judges in the Chamber at the moment: the noble Lord, Lord Elystan-Morgan, and me. He has just indicated that he agrees with me, in particular that a judge could not protect a child where the father or mother had the right of cross-examination in order to put his or her case. That is the problem. It is rare. Therefore, dealing with it would be very inexpensive. It might happen once or twice a year at most, and the judge would be required to certify the case. Judges will be well aware that legal aid is not to be easily given. They will be well aware that to certify a case would be very unusual. However, the situation exists and children require protection. I am grateful to the Minister for saying that he will at least take away the matter and think about it. No doubt he, and all of us, should have great respect for his advisers, but they do not understand the rights of defendants quite as well as those of victims. For the moment, I beg leave to withdraw the amendment.

Amendment 47 withdrawn.

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[Lord Thomas of Gresford]

My Lords, the amendment was suggested by the Bar Council to put a particular issue into scope. It refers to:

“Civil legal services provided in relation to any question whether particular medical treatment is in the best interests of a person who is incapable of giving or withholding consent to such treatment”.

It arises out of a case called Re M, which was heard very recently by Mr Justice Baker. It was a case where someone was in a vegetative state, or the equivalent, and the family made application for the withholding of artificial nutrition and hydration from the person concerned. It was one of those terrible cases that one hears about from time to time. The judge made this particular series of observations, which I draw to your Lordships’ attention, in the course of his judgment. He quite deliberately set out observations for future cases. In paragraph 260, he said,

“given the fundamental issues involved in cases involving the withdrawal of ANH, it is alarming to the court that public funding has not been available to members of the family to assist them in prosecuting their application. In the event, the Applicant’s team has acted pro bono throughout the hearing and during much of the very extensive preparation. I stress that this has not caused any disadvantage to the Applicant … the family could not have had better representation. But it is intolerable that the family should have been dependent on the willingness of lawyers to work without remuneration. In this case, the “playing field” was level because of the exceptional generosity of the Applicant’s lawyers. In other cases, members of a family who wished to ask the court to authorise the withdrawal of ANH but did not qualify for means tested public funding may have to appear in person, given the very high costs of litigation. Such a situation would seem to infringe the family’s rights under Article 6 of ECHR. There are many demands on the restricted legal aid budget, but consideration should be given to extending the right to non-means tested public funding to family members seeking to bring this type of application. At present such non-means tested funding is available to parents whose children are the subject of care proceedings under the Children Act 1989. That provision is justified by the fundamental and life-changing consequences which flow from the making of a care order. The same argument applies to applications for the withdrawal of artificial nutrition and hydration”.

Your Lordships will appreciate that these cases unhappily happen from time to time, and when they happen, they exercise the family members, the practitioners and the judge to a very considerable degree. Each case has to be very carefully examined. In this case, the judge refused the application and said that the life of the individual concerned should be allowed to continue. The Bar Council’s proposed amendment would ensure that these cases come within the scope of legal aid, and I invite the Government to make an exception in these rare, but extremely expensive, cases.

[Baroness Butler-Sloss]

My Lords, I support this amendment. I declare an earlier interest in that I was the judge who tried nearly all the permanent vegetative state cases for the withdrawal of hydration and nutrition. I never had the case of M, although I very nearly did. In fact, the patient, who was on the verge of being in a permanent vegetative state, died. It is an extremely rare case where it is uncertain whether somebody is in a permanent vegetative state or has minimal consciousness. At the moment, the only decision has been against withdrawing nutrition and hydration. This situation will arise from time to time. It will be very rare. It is intensely distressing for the family and intensely difficult for the doctors and nurses who care for these people who may, or may not, have minimal consciousness. It raises an incredibly important problem as to the point at which the doctors are ordered by the court to withdraw the artificial nutrition and hydration. It is perhaps the most difficult of all decisions that might come before a court. In cases of permanent vegetative state it is nearly always the hospital that brings proceedings, but if a family brings proceedings, or wishes to be part of the proceedings brought by a hospital, it would be very difficult for the family to put forward a case of this extreme difficulty if it had no access to legal aid, particularly with the medical evidence that would be required.

Again, as I said on the previous amendment, this is not going to cost very much money because it is not going to happen very often, but it is a particularly important fallback position. These are terrible cases to try, as I know to my cost.

[Lord Beecham]

My Lords, I congratulate the noble Lord, Lord Thomas, on raising this matter and moving an amendment that could greatly assist a family, or others, in the context of the tragic and ethically challenging circumstances that he has so clearly outlined and which the noble and learned Baroness, Lady Butler-Sloss, has also addressed.

There is another set of circumstances in which the noble Lord’s amendment might well be applicable. While entirely endorsing his amendment on the grounds that he has advanced, I would like to refer to the suggestion of Mind in relation to the occasional need for people in detention under the Mental Health Act to also receive legal advice concerning treatment that may be prescribed for them. The system allows for legal aid to challenge the detention of someone who is being treated in a mental health facility but not in relation to treatment that might be proffered, or indeed insisted upon, by those in whose charge a patient might find himself.

Mind has provided helpful advice to people in detention who are unable to give consent for treatment. I will quote briefly from the document it has produced which is available to those in that position. The document outlines a whole series of things, including the definitions of various matters and persons, and then it asks:

“Can I be treated without giving consent to the treatment?”.

It goes on to say that,

“if … you have the mental capacity … you are generally entitled to refuse it and no undue pressure should be placed on you. However, the law does allow treatment to be given to an adult without consent where the adult lacks the mental capacity needed to give consent and where certain sections of the Mental Health Act apply. If you are experiencing mental distress and are offered treatment, you need to be aware of any legal powers that could be used if you refuse. However, the powers must not be used as threats to coerce you into consenting, and if you feel this is happening”—

this is the crucial point—

“seek independent legal advice and consider making a complaint”.

It suggests discussing concerns with a general practitioner and so on, and goes on to say:

“If you are under 18, the law is complex and it is best to seek specialist legal advice. It may be that you can consent on your own behalf, but this does not necessarily mean you have the same right to refuse. Others, such as your parents, guardian … may be able to consent on your behalf”.

Although the circumstances are very different and, I hope, of a less tragic character than those that have motivated the tabling of this amendment, there is a similarity in the situation of the clear need for legal advice to be available to people being detained under the Mental Health Act with regard to the treatment envisaged for them by those in whose care they find themselves. I would hope that the Minister will accede to the argument advanced hitherto by the noble Lord, Lord Thomas. In that event, the amendment would also cover the circumstances that I have outlined and which Mind has helpfully suggested.