Domestic Abuse Bill

Baroness Fox of Buckley Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 3rd February 2021 Lords Chamber

[Baroness Bennett of Manor Castle (GP) [V]]

Let me try an alternative technology—apologies, my Lords.

It is a great pleasure to follow the noble Lord, Lord Marks of Henley-on-Thames, for the second time, on this group of amendments, on which it is clear that he has done a great deal of work, and for which he deserves great thanks. I am simply here again as a support act for the reasons that I set out in the first group of amendments we addressed today. I think the arguments of justice and compassion are the same in this group of amendments as they were in that first group.

Sitting in many courtrooms over the years as a journalist, looking at the witnesses, you think about what the experience of being a witness is like. Earlier, I used the theoretical but eminently likely example of civil proceedings arising out of the collapse of a farm business that is also associated with domestic abuse. Later on, we will be talking about attempts to insert into the Bill an offence of non-fatal strangulation or suffocation. If we think about the actual experience of a witness who suffered that kind of assault and is then expected to stand in a courtroom and look in the eye the person responsible for that assault, and who is expected to look strong, stand tall and not seem what anyone might determine as shifty or uncertain, we can imagine the pressure that puts on such a witness.

In his answer to the first group of amendments, the Minister said, “Well, there is always judge’s discretion.” We know from many other debates in your Lordships’ House on the Bill that much domestic abuse is not fully reported. Indeed, we know that non-fatal strangulation and suffocation are sometimes recorded simply as common assault. Full information about what witnesses may have been subjected to may not be available and full reporting may not have happened, so it may not be open to a judge to be in the right place to rule on this. There should be an automatic protection available to witnesses who need it.

I will be brief because we have a great deal to do, but I believe that this is an important set of amendments, and I really hope that the Government will reconsider.

[Baroness Fox of Buckley (Non-Afl)]

My Lords, I will start by making a general point about an issue that has been concerning me regarding the amendments on cross-examination on special measures. I apologise that I am not a lawyer, and if I have not quite have grasped what Committee stage is. I could have been jumping up to speak to all these amendments, so I have bundled my comments into one. I hope that will work. If I have got it wrong, I will not do it again.

I have found the noble Lord, Lord Paddick, hugely helpful and insightful throughout these Committee discussions, but something he said on Monday troubled me. He said:

“My Lords, for reasons of brevity and clarity, I will refer to the person to whom a domestic abuse protection notice is given as the ‘perpetrator’, rather than the ‘alleged perpetrator’ or ‘defendant’, and the person the notice seeks to protect as the ‘victim’, rather than the ‘complainant’, the ‘alleged victim’ or ‘plaintiff’.”


He went on to say:

“Clearly it will be for the court to decide, ultimately, whether they are in fact perpetrator and victim.”—[Official Report, 1/2/21; col. 1925.]

I understand entirely the noble Lord’s shorthand point, but I get anxious that sometimes, that sort of shorthand becomes the presumed fact or reality. That has been the case throughout Committee stage—nowhere more obviously than in the discussion about cross-examination —and I worry that that might prejudice justice and fairness in proceedings. As the noble Lord, Lord Paddick, rightly stated, it is up to the court ultimately to decide on guilt or innocence. It seems to me that cross-examination is a key part of making such weighty decisions. Testing the evidence thoroughly is very important, and demands for special measures for cross-examination should not compromise that.

We have already heard the way in which this can happen. We have heard the noble Lord, Lord Marks of Henley-on-Thames, say, in calling for special measures in an earlier set of amendments, that if a witness claims that they are frightened, this can be seen as sufficient reason to treat the alleged perpetrator as a perpetrator, and the alleged victim is secure in special measures. I just worry about a slippery slope. Because of the importance I place on cross-examination, in relation to the distinction between family courts and civil courts, I would actually prefer that a legal representative be appointed by both courts in order to facilitate the most objective and thorough cross-examination and to make sure that the evidence is objectively tested.