Domestic Abuse Bill

Baroness Kennedy of Shaws Excerpts

Report stage
Wednesday 10th March 2021 Lords Chamber

Moved by

[Baroness Kennedy of The Shaws]

50: After Clause 68, insert the following new Clause—
“Reasonable force in domestic abuse cases
(1) Section 76 of the Criminal Justice and Immigration Act 2008 (reasonable force for purposes of self-defence etc.) is amended as follows.(2) In subsection (5A) after “In a householder case” insert “or a domestic abuse case”.(3) In subsection (6) after “In a case other than a householder case” insert “or a domestic abuse case”.(4) After subsection (8F) insert—“(8G) For the purposes of this section “a domestic abuse case” is a case where—(a) the defence concerned is the common law defence of self-defence,(b) D is, or has been, a victim of domestic abuse, and(c) the force concerned is force used by D against the person who has perpetrated the abusive behaviour referred to in paragraph (b). (8H) Subsection (8G)(b) will only be established if the behaviour concerned is, or is part of, a history of conduct which constitutes domestic abuse as defined in sections 1 and 2 of the Domestic Abuse Act 2021, including but not limited to conduct which constitutes the offence of controlling or coercive behaviour in an intimate or family relationship as defined in section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship).”(5) In subsection (9) after “householder cases” insert “and domestic abuse cases”.”Member’s explanatory statement
This Clause seeks to clarify the degree of force which is reasonable under the common law of self-defence where the defendant is a survivor of domestic abuse alleged to have used force against their abuser.

[Baroness Kennedy of The Shaws (Lab) [V]]

It is a great privilege to take part in this debate and to hear the voices of so many people with expertise in this field —sometimes direct experience—speaking with wisdom and compassion about why the law had to change.

I remind noble Lords that not so very long ago there used to be a way of referring to domestic abuse as “a domestic”, as though it were lesser than ordinary crime. It has been a long and hard struggle to have the law shift and change, for the agenda and context to change and for our political and legal classes to understand the full import of domestic violence and the toll it takes on our lives and the whole of society. That is why it has been so uplifting to listen to this debate over the last few weeks. I will move for two new statutory defences to be included in the Bill and give notice that I intend to divide the House.

In 2017, the Home Office Minister for Crime, Safeguarding and Vulnerability said there needed to be a root and branch review of how women are treated in the criminal justice system when they themselves are victims of abuse. Unfortunately, criminal law still fails to protect those whose experience of abuse drives them to offend. I strongly urge this House that there cannot be two classes of victim: those who somehow win our compassion and for whom we are desirous of a much fairer system and those who somehow fall outside that kind of protection.

We know that the law has failed women in many different areas for many years, and that one of the reasons why has been the absence of women in lawmaking—in the senior judiciary and in Parliaments. Happily, we have seen that changing in our society over recent decades, but there is still work to be done. I am attempting in these amendments, supported by colleagues around the House, to fill a really important gap—for those who perhaps have least voice because they end up in prison.

These amendments are supported by virtually every organisation involved—I do not know any organisation involved in domestic abuse that is not supporting this change. Once you really know about abuse and its ultimate potential consequences, which can often be the death of a woman or a victim of abuse, you know that sometimes the person on the receiving end can take no more and, out of despair and desperation, inflicts violence. We have to understand the context, and what has often been missing in the courts was a full understanding of domestic violence and the context. I know that, even in this House, we learn from each other and from each other’s experience, directly and indirectly, about what is involved and what the long-term impact of domestic abuse can be. It has been in only recent times, for example, that forms of abuse other than violence have been shown to have long-term consequences that can be so damaging to someone’s mental health. That learning has, in turn, to be fed into the law.

The organisations supporting these amendments include Women’s Aid, Rights of Women, Refuge, the Criminal Bar Association and the Centre for Women’s Justice, which has been a very important part of the research-gathering for these amendments. One of the pieces of work has come out of a report recently published by the Centre for Women’s Justice, Women Who Kill: How the State Criminalises Women We Might Otherwise Be Burying. The Victims’ Commissioner supports these changes. The domestic abuse commissioner- designate supports these amendments. Unfortunately, at the moment, the Government do not. Is this about not wanting to be seen in any way to support persons who might be accused of crime, rather than seeing that you are really supporting victims?

The first of the amendments, Amendment 50, has a new statutory defence relating to self-defence and the reasonableness test that applies to it. This amendment would afford justice to women who, after long-term abuse, are unable to avail themselves of self-defence when they are accused of harming their abuser, using force against their abuser or, indeed, killing their abuser. Why does self-defence not work in these circumstances? The reason is that the force used in self-defence must be reasonable, but because of their experience of relentless abuse and their physical disadvantage, women often reach for a weapon. As a result, their action is often deemed disproportionate because, in examining whether something is reasonable, which is an objective test, the question is asked, “Is it proportionate to what was happening to her at the time?”

Of course, it might not seem proportionate if a woman runs to the kitchen drawer, or reaches to the kitchen counter, and picks up a knife, or, as Sally Challen did, reaches for a hammer and causes a fatal blow to her controlling, abusive husband. I even represented a woman who took a rolling pin and hit her husband, causing an injury to his skull that ended in his loss of life. But he had abused her over years and years, and she could not take any more. So, we have to look at the ways in which we can contextualise this form of abuse, and look at why self-defence does not work for women. The research conducted in the report by the Centre for Women’s Justice really lays it out very clearly.

I just raise the comparison that I put before the House originally, when I spoke at Second Reading and then in Committee. I pointed out that there had already been a departure from the normal rules when dealing with a householder. The Government’s response then was to distinguish a householder’s fear if someone trespassed on to their property—an Englishman’s home is his castle—as, not knowing who they may be, they may take a weapon from a drawer and use it fatally, from the position of a victim of domestic violence taking a weapon in her hand.

I suggest that the point was ill made, because no one is suggesting a parallel. A departure has been made from the normal rules, which were made with a different perception in mind, by men of law who had not imagined the circumstances of domestic violence, the long-term abuse, the toll that it takes and the psychological impact it has on someone—the rising fear, the reading of a situation, the complexity referred to by the Minister and the dynamic that is created in these relationships. The point that I was making was that a departure has been made for the circumstances of the householder. If we are prepared to make it there, why are we so reluctant to make it here, particularly when it is going to be made use of by women—rare as these cases are—defending themselves against someone?

We heard today of the Government’s change of heart in their concession that non-fatal strangulation should become a crime, properly recognised by the courts at the right level. I have not worked on a single homicide where such a strangulation has not put people in fear that, one day, it will extinguish their life. That has been part of the histories that they have given to the court about the way in which they have been treated over the years.

The concern here is that self-defence is not working in these cases. The amendment seeks to introduce the test that was introduced for the householder, which is that, instead of being reasonable and proportionate, it would have to be grossly disproportionate to lose the right to draw down self-defence as a rationale or defence for conduct and for seeking an acquittal. For most of these women, because they face a conviction of murder if they fail, those acting for them persuade them to plead guilty of manslaughter. They are driven down another road that will lead to a conviction, but that is not the justice of the situation. They plead guilty to manslaughter, are convicted and end up in prison. That conviction will have consequences for their lives—employment and so much else—when they have been at the receiving end of abuse. That is quite wrong. It is in the hands of the Government to make a difference and I call upon them to reconsider their position.

I turn now to an interesting piece of academic work that was written under the names of Sheehy, Stubbs and Tolmie in 2012. It is about defences against homicide from battered women, as a comparative analysis of laws in Australia, Canada and New Zealand. This House can be persuaded by research from elsewhere, if changes have been made in other common law jurisdictions. It would be good for us to take a lead. When Theresa May introduced this legislation, she spoke of the United Kingdom leading the world in making changes to law that would bring proper justice to anybody facing domestic abuse, particularly women. Seeing whether others have made those changes first is not necessary, but it is helpful to look at research.

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[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am sorry to interrupt the noble Baroness. I appreciate that she has three amendments to introduce—

[Baroness Kennedy of The Shaws (Lab) [V]]

The third one does not count.

[Lord Parkinson of Whitley Bay (Con)]

She has taken 20 minutes to do so already and the House is keen to debate the amendments she is putting forward. If she could do so briefly, it will give noble Lords the opportunity to do just that.

[Baroness Kennedy of The Shaws (Lab) [V]]

I feel that that was unnecessary, but I was coming to my conclusion anyway. There must be a causal link between the threat and the decision of the defendant to break the law, and that is a high bar. I strongly urge the House to support this new statutory defence for women who are compelled to commit crimes so that they can put it before the court where it can be tested and measured evidentially. If it passes the test, she can be acquitted.

Amendment 66 is a list of the offences to which this would not apply because of their gravity. I hope that the Crown does not think that there are two kinds of victims: those who are somehow deserving and those who are undeserving. The end of the road is when women are forced to do things that take them into the criminal ambit because of a history of abuse. I beg to move.

[Lord Randall of Uxbridge (Con) [V]]

My Lords, we have heard a passionate and erudite speech by the noble Baroness, Lady Kennedy of The Shaws. I have attached my name to her Amendment 51 principally because I was struck by the similarity, which is mentioned in the explanatory statement, to what is set out in the Modern Slavery Act 2015, where someone cannot be found guilty of committing a criminal act if they have been subjected to the coercion of modern slavery. I can see the same parallel between that and the domestic abuse situation which has been put so well by the noble Baroness. I therefore say, in the interests of brevity, that the noble Baroness has said it all and I shall support her, certainly on Amendment 51, if she puts it to a vote.

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[The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)]

I have received no requests to speak after the Minister; accordingly, I call the noble Baroness, Lady Kennedy of The Shaws.

[Baroness Kennedy of The Shaws (Lab) [V]]

My Lords, I am of course disappointed but not surprised by the response, as it was indicated that I would not receive the response that some other amendments have. It is regrettable, because all the evidence points towards problems in both these areas. There are women being convicted of crimes where they have clearly been coerced and their abusive partners are forcing them to commit crime. In relation to homicide and, indeed, lesser crimes, self-defence is not available to women because of the “disproportionate” issue. The measure should be just the same as in the intruder case. The distinction that the noble Lord seeks to make between that and the householder is really without merit and not convincing. I am sure he is having to read from a brief and he will know himself.

Anyone who really knows about domestic abuse knows that this is instinctive: when someone snaps, in the end, it is because they cannot take any more. That is why they reach for a weapon; they know that they cannot take on the sort of force that they have experienced in the past. This is a failure of understanding. It is being unable to stand in the shoes of someone in these circumstances.

I do not blame the noble Lord, Lord Wolfson, in any way. It is just that there is a process of learning here, which we have all been on. It may be easier to understand someone nearly being strangled, but harder to understand the moment when, instinctively and in terror, a person who has been abused over a long period suddenly reaches for a weapon in their defence. Not to understand that is regrettable, so I will move both these amendments and test the opinion of the House.

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Moved by

[Baroness Kennedy of The Shaws]

51: After Clause 68, insert the following new Clause—
“Defence for victims of domestic abuse who commit an offence
(1) A person is not guilty of an offence if—(a) the person is aged 18 or over when the person does the act which constitutes the offence,(b) the person does that act because the person is compelled to do it,(c) the compulsion is attributable to their being a victim of domestic abuse, and(d) a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act.(2) A person may be compelled to do something by another person or by the person’s circumstances.(3) Compulsion is attributable to domestic abuse only if—(a) it is, or is part of, conduct which constitutes domestic abuse as defined in sections 1 and 2 of this Act, including but not limited to conduct which constitutes the offence of controlling or coercive behaviour in an intimate or family relationship as defined in section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship), or(b) it is a direct consequence of a person being, or having been, a victim of such abuse.(4) A person is not guilty of an offence if—(a) the person is under the age of 18 when the person does the act which constitutes the offence,(b) the person does that act as a direct consequence of the person being, or having been, a victim of domestic abuse as defined at subsection (3)(a) above, and(c) a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act.(5) For the purposes of this section “relevant characteristics” means age, sex, any physical or mental illness or disability and any experience of domestic abuse.(6) In this section references to an act include an omission.(7) Subsections (1) and (4) do not apply to an offence listed in Schedule (Offences to which the defence for victims of domestic abuse who commit an offence does not apply).(8) The Secretary of State may by regulations amend Schedule (Offences to which the defence for victims of domestic abuse who commit an offence does not apply).(9) The Secretary of State must make arrangements for monitoring of the types of offence for which victims of domestic abuse are prosecuted and use this evidence to inform an annual review of the offences listed in Schedule (Offences to which the defence for victims of domestic abuse who commit an offence does not apply) and any amendment to Schedule (Offences to which the defence for victims of domestic abuse who commit an offence does not apply).”Member’s explanatory statement
This new Clause would provide a statutory defence for survivors of domestic abuse, in some circumstances, who commit an offence. It is closely modelled on section 45 of the Modern Slavery Act 2015.

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Moved by

[Baroness Kennedy of The Shaws]

66: After Schedule 2, insert the following new Schedule—
“OFFENCES TO WHICH THE DEFENCE FOR VICTIMS OF DOMESTIC ABUSE WHO COMMIT AN OFFENCE DOES NOT APPLYCommon law offences
1 False imprisonment.2 Kidnapping.3 Manslaughter.4 Murder.5 Perverting the course of justice.6 Piracy.Offences against the Person Act 1861
7 An offence under any of the following provisions of the Offences Against the Person Act 1861—(a) section 4 (soliciting murder);(b) section 16 (threats to kill);(c) section 18 (wounding with intent to cause grievous bodily harm);(d) section 20 (malicious wounding);(e) section 21 (attempting to choke, suffocate or strangle in order to commit or assist in committing an indictable offence);(f) section 22 (using drugs etc to commit or assist in the committing of an indictable offence);(g) section 23 (maliciously administering poison etc so as to endanger life or inflict grievous bodily harm);(h) section 27 (abandoning children);(i) section 28 (causing bodily injury by explosives);(j) section 29 (using explosives with intent to do grievous bodily harm);(k) section 30 (placing explosives with intent to do bodily injury);(l) section 31 (setting spring guns etc with intent to do grievous bodily harm);(m) section 32 (endangering safety of railway passengers);(n) section 35 (injuring persons by furious driving);(o) section 37 (assaulting officer preserving wreck);(p) section 38 (assault with intent to resist arrest).Explosive Substances Act 1883
8 An offence under any of the following provisions of the Explosive Substances Act 1883—(a) section 2 (causing explosion likely to endanger life or property);(b) section 3 (attempt to cause explosion, or making or keeping explosive with intent to endanger life or property);(c) section 4 (making or possession of explosives under suspicious circumstances).Infant Life (Preservation) Act 1929
9 An offence under section 1 of the Infant Life (Preservation) Act 1929 (child destruction).Children and Young Persons Act 1933
10 An offence under section 1 of the Children and Young Persons Act 1933 (cruelty to children).Public Order Act 1936
11 An offence under section 2 of the Public Order Act 1936 (control etc of quasi-military organisation).Infanticide Act 1938
12 An offence under section 1 of the Infanticide Act 1938 (infanticide). Firearms Act 1968
13 An offence under any of the following provisions of the Firearms Act 1968—(a) section 5 (possession of prohibited firearms);(b) section 16 (possession of firearm with intent to endanger life);(c) section 16A (possession of firearm with intent to cause fear of violence);(d) section 17(1) (use of firearm to resist arrest);(e) section 17(2) (possession of firearm at time of committing or being arrested for specified offence);(f) section 18 (carrying firearm with criminal intent).Theft Act 1968
14 An offence under any of the following provisions of the Theft Act 1968—(a) section 8 (robbery or assault with intent to rob);(b) section 9 (burglary), where the offence is committed with intent to inflict grievous bodily harm on a person, or to do unlawful damage to a building or anything in it;(c) section 10 (aggravated burglary);(d) section 12A (aggravated vehicle-taking), where the offence involves an accident which causes the death of any person;(e) section 21 (blackmail).Criminal Damage Act 1971
15 The following offences under the Criminal Damage Act 1971—(a) an offence of arson under section 1;(b) an offence under section 1(2) (destroying or damaging property) other than an offence of arson.Immigration Act 1971
16 An offence under section 25 of the Immigration Act 1971 (assisting unlawful immigration to member state).Customs and Excise Management Act 1979
17 An offence under section 170 of the Customs and Excise Management Act 1979 (penalty for fraudulent evasion of duty etc) in relation to goods prohibited to be imported under section 42 of the Customs Consolidation Act 1876 (indecent or obscene articles).Taking of Hostages Act 1982
18 An offence under section 1 of the Taking of Hostages Act 1982 (hostage-taking).Aviation Security Act 1982
19 An offence under any of the following provisions of the Aviation Security Act 1982—(a) section 1 (hijacking);(b) section 2 (destroying, damaging or endangering safety of aircraft);(c) section 3 (other acts endangering or likely to endanger safety of aircraft);(d) section 4 (offences in relation to certain dangerous articles).Mental Health Act 1983
20 An offence under section 127 of the Mental Health Act 1983 (ill-treatment of patients).Child Abduction Act 1984
21 An offence under any of the following provisions of the Child Abduction Act 1984—(a) section 1 (abduction of child by parent etc);(b) section 2 (abduction of child by other persons).Public Order Act 1986
22 An offence under any of the following provisions of the Public Order Act 1986— (a) section 1 (riot);(b) section 2 (violent disorder).Criminal Justice Act 1988
23 An offence under section 134 of the Criminal Justice Act 1988 (torture).Road Traffic Act 1988
24 An offence under any of the following provisions of the Road Traffic Act 1988—(a) section 1 (causing death by dangerous driving);(b) section 3A (causing death by careless driving when under the influence of drink or drugs).Aviation and Maritime Security Act 1990
25 An offence under any of the following provisions of the Aviation and Maritime Security Act 1990—(a) section 1 (endangering safety at aerodromes);(b) section 9 (hijacking of ships);(c) section 10 (seizing or exercising control of fixed platforms);(d) section 11 (destroying fixed platforms or endangering their safety);(e) section 12 (other acts endangering or likely to endanger safe navigation);(f) section 13 (offences involving threats).Channel Tunnel (Security) Order 1994 (S.I. 1994/570)
26 An offence under Part 2 of the Channel Tunnel (Security) Order 1994 (SI 1994/570) (offences relating to Channel Tunnel trains and the tunnel system).Protection from Harassment Act 1997
27 An offence under any of the following provisions of the Protection from Harassment Act 1997—(a) section 4 (putting people in fear of violence);(b) section 4A (stalking involving fear of violence or serious alarm or distress).Crime and Disorder Act 1998
28 An offence under any of the following provisions of the Crime and Disorder Act 1998 —(a) section 29 (racially or religiously aggravated assaults);(b) section 31(1)(a) or (b) (racially or religiously aggravated offences under section 4 or 4A of the Public Order Act 1986).Terrorism Act 2000
29 An offence under any of the following provisions of the Terrorism Act 2000—(a) section 54 (weapons training);(b) section 56 (directing terrorist organisation);(c) section 57 (possession of article for terrorist purposes);(d) section 59 (inciting terrorism overseas).International Criminal Court Act 2001
30 An offence under any of the following provisions of the International Criminal Court Act 2001—(a) section 51 (genocide, crimes against humanity and war crimes);(b) section 52 (ancillary conduct).Anti-terrorism, Crime and Security Act 2001
31 An offence under any of the following provisions of the Anti-terrorism, Crime and Security Act 2001—(a) section 47 (use of nuclear weapons);(b) section 50 (assisting or inducing certain weapons-related acts overseas);(c) section 113 (use of noxious substance or thing to cause harm or intimidate). Female Genital Mutilation Act 2003
32 An offence under any of the following provisions of the Female Genital Mutilation Act 2003—(a) section 1 (female genital mutilation);(b) section 2 (assisting a girl to mutilate her own genitalia);(c) section 3 (assisting a non-UK person to mutilate overseas a girl’s genitalia).Sexual Offences Act 2003
33 An offence under any of the following provisions of the Sexual Offences Act 2003—(a) section 1 (rape);(b) section 2 (assault by penetration);(c) section 3 (sexual assault);(d) section 4 (causing person to engage in sexual activity without consent);(e) section 5 (rape of child under 13);(f) section 6 (assault of child under 13 by penetration);(g) section 7 (sexual assault of child under 13);(h) section 8 (causing or inciting child under 13 to engage in sexual activity);(i) section 9 (sexual activity with a child);(j) section 10 (causing or inciting a child to engage in sexual activity);(k) section 13 (child sex offences committed by children or young persons);(l) section 14 (arranging or facilitating commission of child sex offence);(m) section 15 (meeting a child following sexual grooming);(n) section 16 (abuse of position of trust: sexual activity with a child);(o) section 17 (abuse of position of trust: causing or inciting a child to engage in sexual activity);(p) section 18 (abuse of position of trust: sexual activity in presence of child);(q) section 19 (abuse of position of trust: causing a child to watch a sexual act);(r) section 25 (sexual activity with a child family member);(s) section 26 (inciting a child family member to engage in sexual activity);(t) section 30 (sexual activity with a person with a mental disorder impeding choice);(u) section 31 (causing or inciting a person with a mental disorder impeding choice to engage in sexual activity);(v) section 32 (engaging in sexual activity in the presence of a person with a mental disorder impeding choice);(w) section 33 (causing a person with a mental disorder impeding choice to watch a sexual act);(x) section 34 (inducement, threat or deception to procure sexual activity with a person with a mental disorder);(y) section 35 (causing a person with a mental disorder to engage in or agree to engage in sexual activity by inducement, threat or deception);(z) section 36 (engaging in sexual activity in the presence, procured by inducement, threat or deception, of a person with a mental disorder);(aa) section 37 (causing a person with a mental disorder to watch a sexual act by inducement, threat or deception); (ab) section 38 (care workers: sexual activity with a person with a mental disorder);(ac) section 39 (care workers: causing or inciting sexual activity);(ad) section 40 (care workers: sexual activity in the presence of a person with a mental disorder);(ae) section 41 (care workers: causing a person with a mental disorder to watch a sexual act);(af) section 47 (paying for sexual services of a child);(ag) section 48 (causing or inciting child prostitution or pornography);(ah) section 49 (controlling a child prostitute or a child involved in pornography);(ai) section 50 (arranging or facilitating child prostitution or pornography);(aj) section 61 (administering a substance with intent);(ak) section 62 (committing offence with intent to commit sexual offence);(al) section 63 (trespass with intent to commit sexual offence);(am) section 64 (sex with an adult relative: penetration);(an) section 65 (sex with an adult relative: consenting to penetration);(ao) section 66 (exposure);(ap) section 67 (voyeurism);(aq) section 70 (sexual penetration of a corpse).Domestic Violence, Crime and Victims Act 2004
34 An offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing a child or vulnerable adult to die or suffer serious physical harm).Terrorism Act 2006
35 An offence under any of the following provisions of the Terrorism Act 2006—(a) section 5 (preparation of terrorist acts);(b) section 6 (training for terrorism);(c) section 9 (making or possession of radioactive device or material);(d) section 10 (use of radioactive device or material for terrorist purposes);(e) section 11 (terrorist threats relating to radioactive devices etc).Modern Slavery Act 2015
36 An offence under any of the following provisions of the Modern Slavery Act 2015—(a) section 1 (slavery, servitude and forced or compulsory labour);(b) section 2 (human trafficking).Ancillary offences
37_(1) An offence of attempting or conspiring to commit an offence listed in this Schedule.(2) An offence committed by aiding, abetting, counselling or procuring an offence listed in this Schedule.(3) An offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting) where the offence (or one of the offences) which the person in question intends or believes would be committed is an offence listed in this Schedule.”