Legal Aid, Sentencing and Punishment of Offenders Bill

Baroness Scotland of Asthal Excerpts

Wednesday 18th January 2012 Lords Chamber

I say to my noble friend the Minister that the Government are cutting off their nose to spite their face with these provisions. There is absolutely no evidence of real savings being made, and the real social cost may be dramatic and very serious.

[Baroness Scotland of Asthal]

My Lords, it is a real privilege to follow the last three, very powerful, speeches in support of this series of amendments. For completeness, I declare my interest as the chair of the All-Party Group on Domestic and Sexual Violence, and founder and patron of both the Corporate Alliance Against Domestic Violence and the Global Foundation for the Elimination of Domestic Violence.

I am particularly grateful to follow those three powerful speeches because your Lordships have had a taste of the different elements that participate in the criminal and civil justice process to bring relief and succour to victims of domestic violence. Those elements are the experience of the noble and learned Baroness, Lady Butler-Sloss, as a judge and previous president of the Family Division; the experience of the noble Lord, Lord Macdonald, in his sterling work dealing with these issues while he had the privilege of being our Director of Public Prosecutions; and, of course, the wealth of experience of the noble Lord, Lord Carlile.

I do not propose to reiterate everything that they have said about the nature of domestic violence but it is important for us to remember that it can affect one in four women in our country and one in six men, and that the secondary victims of domestic violence are the children in those families. Between 750,000 and 900,000 children in the United Kingdom are adversely affected by domestic violence. Tragically, we see them overrepresented in every indices of dysfunction, whether it is alcoholism, mental illness, criminality or lack of educational and physical milestones being met. The breadth of domestic violence has been well understood.

To say a word in response to a question about financial violence from the noble and learned Lord, Lord Scott of Foscote, regrettably—as the Minister will know from his own readings of this subject—financial violence can often be the tool used to restrict a woman and a victim’s movement, and to impose on them situations which cause them physical and emotional harm. Having no money, being controlled and being restricted can have a very deleterious effect.

What the noble Lords, Lord Macdonald and Lord Carlile, have said is correct about the way in which we have learnt about domestic violence. Over the past 30 years, the learning has come, regrettably, at the cost of listening to victims who have suffered from the mistakes that we made in the past; namely, our inability to understand or to respond in a holistic and joined-up way.

The work that has been done, not least in this House by Members and elsewhere, has enhanced our understanding and the definition in Amendment 45, which is tabled in my name, that of the noble and learned Baroness, Lady Butler-Sloss, the right reverend Prelate the Bishop of Leicester and the noble Lord, Lord Blair, is not innovative. It is the accepted definition of domestic violence used on a day-to-day basis by courts, prosecutors, advocates, third-party non-governmental organisations, individuals and elsewhere. The way in which that definition has been crafted has been influenced by the experience culled over a period of 30 years.

Before this Bill, there was never any suggestion that any amendment of that definition was immediately necessary to prevent people taking advantage of it in a way that was not proper. As the noble Lord, Lord Macdonald, has said, the real issue that has troubled many of us is how we persuade and enable those who are in need of the succour that can be provided to come forward, not how we stop them making false allegations. That problem has been alleviated but not expunged. We still have to encourage. Regrettably, 89 per cent of repeat victims of domestic violence happen to be women. One in six is a man. It is a lower level but they tend not to be repeat victims, so the problem remains.

The definition adopted by the Association of Chief Police Officers has served us well. I do not for a moment suggest that the Government are not committed to alleviating domestic violence. The fact that the Government have excluded domestic violence victims from the general legal aid ban on family law is important. I acknowledge that immediately and we should applaud it. I know that the Minister’s colleague in another place, Mr Djanogly, said in terms:

“If domestic violence is involved, the Government believe that legal aid should be provided”.—[Official Report, Commons, 31/10/11; col. 638.]

We say to the Minister today that, in order to fulfil that acknowledged commitment, the definition used in the Bill has to be changed and should reflect the accepted definition which has been used on a day-to-day basis by everyone. If it is not, we run the risk of excluding about 46 per cent of the domestic violence victims who are currently eligible for legal aid.

What the noble Lord, Lord Carlile, said was absolutely right: we need prevention and early intervention. We have been encouraging victims to come not when they reach the stage of being a high-risk victim on the multi -agency risk assessment Richter scale, because, quite frankly, that is sometimes almost too late. To satisfy that high-risk criterion, victims have to be at risk of death or grievous bodily harm. We have encouraged victims to seek appropriate intervention and relief at an early stage, when there is a punch, a kick or a push, and that has started to happen. We are winning on that. The Minister will know that, since 2003, when we jointly started to look at this issue in a more concentrated manner, we have reduced domestic violence according to all the figures by 64 per cent and have saved—I know how important is the economic cost at this moment of real austerity—£7.5 billion a year. That is a real saving and we in this country now know how to deliver it.

A key component of that early intervention and reduction in economic costs was, and always has been, the availability of legal aid for victims who need it. By intervening early, we have reduced the level of deaths. The noble Lord also knows that, if we are dealing with a murder investigation, it will cost the state at least £1 million from interdiction to conviction. If children are involved, we can be looking at £2 million per case. One has only to do very simple maths to work out that failure to give legal aid at a judicious moment will cost us far more in the long term than giving it early and allowing, quite often, the woman and her children to have appropriate protection, because the damage that is done to children can affect them for the rest of their lives.

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[The Lord Bishop of Chichester]

Before the noble and learned Baroness sits down, could she help me just a little? On Amendment 45, it does seem to me that relying upon a known, approved and accepted definition is clearly right. Of course I accept that, for all the very powerful reasons that have been given. However, since this was crafted, we have got a lot more experience in respect of other kinds of domestic abuse, in particular that of the elderly. We have become very aware recently of the danger to people in care homes but not quite aware enough of the possibility of domestic violence against the elderly as well. Although it is probably too late to bring this into the Bill, could she help me in pressing the Minister to respond as to whether, where it says at the end,

“regardless of gender or sexuality”,

we ought to assume “regardless of age, gender or sexuality”?

[Baroness Scotland of Asthal]

My Lords, that is right. We tend to think of familial violence as violence within a family group and people living together in partnership. Regrettably, the right reverend Prelate is right in saying that age does not prohibit violence—domestic violence is no respecter of persons, irrespective of age, ethnicity, economic background or any dividing issue one can think of. Regrettably, domestic violence affects everyone, and this definition, which has been used, continues to be efficacious and would include those issues.

I should also say that of course the Government themselves have been undertaking a review of domestic violence strategy. In part of that strategy, the definition is being considered and, from what I understand of the consultation, they are seeking to widen the net and not restrict it. That is why these provisions are so concerning and—I have to say—utterly surprising. If there was one area in which I did not believe that there would be any dissent at all among the parties or any of our Benches, it would have been this. So there is deep concern and surprise but also bitter disappointment that we are having this debate.

[Lord McNally]

My Lords, the other evening I said that a smile always came to my face when the noble and learned Baroness reached the Dispatch Box. I think there is usually an exception, and that is when you are in the firing line from her formidable advocacy.

The noble and learned Baroness put her finger on it when she said that domestic violence has its impact on every index of dysfunction in our society. I think that we all accept and understand that. My noble friend Lord Macdonald made the point in acknowledging that the Government have from the very beginning, as the noble and learned Baroness said in quoting my honourable friend Jonathan Djanogly, intended to put domestic violence within scope.

This debate is about whether we have got the definition right. Obviously in discussing that, I have to take into account the comments of a former President of the Family Division, a former Director of Public Prosecutions, a former Attorney-General with considerable lateral experience as well in these matters, and even my noble friend Lord Carlile, who in this case is just an honest jobbing barrister. Obviously, if one gets that weight of evidence, we go back and look carefully at what has been said. I did not realise that this Government were so radical, as was suggested by the query of the noble Lord, Lord Clinton-Davis. Of course, I have talked to my noble friends and have tried in the course of the Bill to be available to Members on all sides of the House. However, as I said at an earlier stage, I am trying to use this Committee stage to listen and to take on board and match our aspirations for the Bill with the experience and wisdom that we receive in Committee to see whether there are areas in which we will make changes when we get to Report, or areas where we simply say to the House that we simply disagree. The spirit is one of listening.

I agree with the noble and learned Baroness that it should be a matter of cross-party co-operation to deal with this scourge of domestic violence. I visited Holloway Prison and was taken to see an ongoing programme of training and educational skills for girls. I went around talking to a number of them. The lady who showed me round suddenly said something that really chilled me. I said, “This seems to be working very well”. She said, “Yes, of course, but you know these girls are probably in the safest place that they have ever been in their lives”. So please do not think that our approach is either frivolous or without concern for the very real problems that domestic violence causes. Again, in a phrase that was used by my noble friend Lord Macdonald, it is certainly not our intention to roll back the decades of progress.

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[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”.

[Baroness Scotland of Asthal]

Was that not a case in which the Supreme Court was being asked to determine whether a specific aspect of emotional abuse was to be included so that someone could get relief and, in so doing, referring to that aspect rather than any other? Could the noble Lord tell the Committee to which case he is referring?

[Lord McNally]

If I am misleading the Committee in any way in this exchange, I will of course write and correct it. The Supreme Court did not adopt the ACPO definition of domestic violence in the Yemshaw case. If the noble and learned Baroness questions me any more, she will go way above my pay grade in terms of the law.

[Baroness Scotland of Asthal]

One of my colleagues has just suggested that maybe the noble Lord is in need of a little legal aid.

[Lord McNally]

Every time I look up, the noble Lord, Lord Beecham, is speaking somewhere in the Chamber. The Opposition are overworking the man—give him the night off.

The definition should also be seen in the light of the Bill’s structure and purpose. Paragraph 10 reflects the underlying policy of ensuring that a party to private law family proceedings who has been subject to domestic violence by the other party to those proceedings and is likely, as a result of that abuse, to be intimidated or otherwise disadvantaged in presenting his or her case, should have access to legal aid. It does not provide that any individual who has been the subject of, or is at risk of being the subject of, abuse—as defined in that paragraph—will qualify regardless of what evidence of abuse might exist. Not every such individual will be intimidated or otherwise disadvantaged in the way that the paragraph is intended to address.

The paragraph establishes a description of legal services. Whether an individual qualifies for them in any specific case requires not only that the individual falls within the categories in paragraph 10 but that the individual meets the criteria to be established in regulations made under Clause 10. As has been explained in the Government’s response to consultation and in debates on the Bill, those criteria will set out the specific requirements as to the evidence of the fact or risk of abuse. Therefore, the definition of abuse itself is only a preliminary part of the picture. However, it is important that we get it right. I suspect that the Committee will say “hear, hear” to that.

The definition of abuse presently in the Bill embraces mental as well as physical abuse, neglect, maltreatment and exploitation. These references would cover, for example, abusive behaviour relating to family finances—a point that was raised earlier. The definition in the Bill would not exclude from scope any of the types of abuse covered by the definition used by the Association of Chief Police Officers, so this part of the amendment is unnecessary. This could lead to the understandable question of why we do not simply adopt the ACPO definition, given its general recognition. However, the ACPO definition is not set in legislation anywhere and is therefore not permanent, as demonstrated by the recent consultation announced by the Home Office. It could change but legislation would not change with it, at least not without subsequent primary legislation.

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We indicated the intended forms of evidence in consultation and listened to views expressed in response to that consultation about what should be accepted as evidence of domestic violence. As a result we have widened the range of forms of evidence. Only one of these forms of evidence will be needed, so legal aid will be available for victims of domestic violence in private family law where any one of these criteria is met: a non-molestation order; an occupation order; a forced marriage protection order or other protective injunction against the other party which is either in force or has been made in the past 12 months; if there is a criminal conviction for domestic violence committed by the other party against the applicant for funding unless the conviction is spent; if there are ongoing criminal proceedings against the other party for a domestic violence offence by that party against the applicant for funding; if the applicant for funding has been referred to a multi-agency risk-assessment conference as a harassed victim of domestic violence, and a plan has been put in place to protect them from violence by the other party; or there has been in the court a finding on fact of domestic violence by the other party, giving rise to the risk of harm to the victim.

[Baroness Scotland of Asthal]

I hesitate to interrupt the noble Lord but can he help me on a point about legal aid being withdrawn from private law cases? He will know that one of the main ways of there being a finding of fact is through those private law situations. If there is an impecunious litigant, can he help me as to how that litigant—normally a woman—is going to get those findings of fact if she does not have legal aid to do so? That is one issue.

Secondly, has the noble Lord seen or read the recent survey by Women’s Aid, Rights of Women and Welsh Women’s Aid that found that the majority of respondents did not report abuse the first time it occurred but typically did so after being assaulted between three and five times? Although 99 per cent had reported at least one incident to the police and/or the police had attended an incident, only 8.3 per cent would be able to prove that they had had an ongoing criminal proceeding in the previous 12 months. There seem to be a lot of practical difficulties and I wonder whether the noble Lord can help the Committee in relation to those matters.

[Lord McNally]

The Welsh Women’s Aid report has been published very recently and we will look carefully at it. I should point out that the organisation surveyed women who are in receipt of domestic violence services rather than women who are seeking legal aid for private family matters. It is a distinction but it means that the survey may not fully square with the issues that we are looking it. We know that this latter group will often, for example, seek a domestic violence injunction at the same time as they take their private family law action, and thereby will qualify for legal aid. None the less, we will look closely at this matter and I will perhaps write to the noble and learned Baroness on her other point.

[Baroness Scotland of Asthal]

My Lords, I do not by any means want to harry the noble Lord but, given what he said about the need for flexibility and certainty, will he consider putting all the evidential issues into the schedule and providing us with an amendment we can look at? Perhaps we could have something such as an affirmative resolution in relation to these issues, which would give us flexibility—if that is what the Government think would be necessary—and clarity as to what evidence would acceptable. I am making a suggestion to the noble Lord that I will not necessarily be bound by, but I just want him to think about it.

[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.

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Tabled by

[Baroness Scotland of Asthal]

45: Schedule 1, page 120, leave out lines 42 to 45 and insert—
““abuse” means any incident or repeated incidents of threatening behaviour, violence or abuse (whether psychological, physical, sexual, financial or emotional, and including acts of neglect, maltreatment, exploitation or acts of omission) between adults who are or have been intimate partners or family members, regardless of gender or sexuality;”

[Baroness Scotland of Asthal]

I shall not move Amendments 45 and 46, but I can reassure the noble Lord that, if his efforts prove to be unfruitful, we shall certainly be back.

Amendment 45 not moved.

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[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.