Serious Crime Bill [HL]

Lord Rosser Excerpts

Tuesday 28th October 2014 Lords Chamber

[Lord Rosser (Lab)]

My Lords, I gather from what has already been said by the noble Baroness, Lady Walmsley, that an understanding has been reached with the Minister on this amendment, which I hope we will be able to welcome when we hear from the Minister exactly what it is.

We are extremely concerned about the way that children and vulnerable adults have been badly let down, not least in recent high-profile cases. Although we support mandatory reporting in principle, we have concerns about the amendment, and in particular its potential unintended consequences, which may have the opposite effect to that desired.

The amendment states that all providers of regulated activities involving children or vulnerable adults will be required to report any suspicion of abuse to the appropriate local authority. That would potentially cover millions of people being required to report. But the amendment is not specific or clear about exactly who would and would not be covered; nor does it define abuse. The signs of actual or likely abuse can be obvious but potential indicators of abuse, such as becoming more withdrawn, may not be quite so obviously a consequence of abuse; therefore, it would not be obvious that it would be an offence not to report them.

Among regulated activity providers there will be big differences in the level of pastoral support expected. For schools and hospitals, most referrals will be about abuse conducted not at the school or hospital but at home. However, it is not clear that a swimming club, for example, would have the same level of pastoral responsibility in respect of potential abuse. In some cases, conduct should be reported to the police where it is a straightforward criminality issue: for example, if a swimming club or football club suspected one of its coaches of taking inappropriate photographs. In other cases, such as a school, where it is likely to be a safeguarding issue, the reporting would be to the local authority. I do not think that the amendment addresses or reflects those kinds of realities.

There is some evidence from outside the United Kingdom that suggests that a mandatory reporting requirement as broad in scope as that provided for in the amendment can lead to the child protection system being overwhelmed. With social services budgets here facing unprecedented cuts, that must be an issue of real concern. Some evidence from outside the UK indicates that people may play safe over reporting in order to protect themselves from a criminal liability for failing to report, with the consequence that resources are redirected to the investigation and assessment of the increased numbers of reports and away from detection and protection and meeting the needs of children at risk and of vulnerable adults.

That is not to suggest that the current system works as it should: for example, through ensuring that incidents or suspicions of child abuse or abuse of vulnerable adults in institutions such as care homes and boarding schools concerned to protect their reputation are reported and properly addressed. It is also clear that, as in some recent high-profile cases of child abuse, the issue has been one not of failure to report but of failure to act on those reports.

We will await the Government’s response, but while we favour and want to see the introduction of mandatory reporting, we do not believe that the way in which the amendment proposes to do it is the right approach, for the reasons I have mentioned. These include possible unintended consequences that could have an adverse effect on the protection of children at risk and vulnerable adults. I hope that the Government will take on board the principle of mandatory reporting and work with all interested parties to bring forward a detailed proposal that will have the confidence and support of the whole House.

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[Lord Rosser]

My Lords, the purpose of our amendment, apart from giving an opportunity to debate the law relating to domestic abuse, is to provide for the Secretary of State to consult on ways of strengthening the law in relation to domestic abuse, which is perpetrated overwhelmingly against women, with that consultation taking place within six months of this Act coming into force. Our amendment also sets out some of the issues that the consultation would consider, without it being an exhaustive list.

Those issues are: should a specific offence or offences criminalising coercive and controlling behaviour, or a pattern or acts of behaviour within an intimate relationship, be created? Should the violent and sexual offenders register include serial stalkers and domestic violence perpetrators and be managed through the multiagency public protection arrangements? Should a new civil order be created to place positive obligations on serial stalkers and domestic violence perpetrators? Should the breach of domestic violence protection notices and orders be a criminal offence? Should domestic violence protection notices and orders extend across European boundaries?

One of the problems, as the noble Lord, Lord Wigley, said, is that the Government’s definition of domestic abuse, adopted from the general definition of the Association of Chief Police Officers, is not reflected in the law. The Government’s definition is:

“Any incident or pattern of incidents of controlling, coercive, threatening behaviour, violence or abuse between those aged 16 or over who are, or have been, intimate partners or family members, regardless of gender or sexuality”.

The abuse,

“can encompass, but is not limited to … psychological, physical, sexual, financial … emotional”.

However, the current law does not capture the Government’s non-statutory definition of domestic abuse as there is no statutory framework around it. Currently, offenders can be prosecuted only for acts of physical violence, when such violence is often the culmination of psychological and minor physical abuse which constitutes domestic abuse, which is outside the reach of the existing criminal law and does not get reported until it has actually escalated into physical violence—which, to put it mildly, is a bit late in the day.

The figures have already been quoted, but I shall repeat them. According to the Home Office, last year 7% of all women reported having experienced domestic abuse, which is equivalent to 1.2 million women a year. Two out of three incidents involved repeat offenders. The reality is that on average women do not report abuse until there have been at least 30 incidents. Since the age of 16, according to statistics published by Women’s Aid and the Home Office, almost one-third of women have experienced domestic abuse. Interestingly —although perhaps that is not the appropriate word—one in three women who attend an A&E department does so because she has been domestically abused.

As the noble Lord, Lord Wigley, said, according to Women’s Aid, only 6.5% of domestic violence incidents reported to the police lead to conviction and 25% of domestic violence cases that are passed on to the Crown Prosecution Service result in no action being taken. There is an issue around the successful prosecution of cases. In some cases, of course, the victim withdraws their statement to the police of domestic abuse or violence, does not come to court, or comes to court and gives evidence that is contrary to their original statement. However, bearing in mind that on average women do not report abuse until there have been at least 30 incidents, the strong likelihood is that any reluctance to go through the legal and court process is not because the domestic violence and abuse did not actually occur, but for other reasons.

An important reason for consultation, including on the specific points referred to in our amendment, is that following the introduction of specific domestic abuse laws in the United States, there was apparently a 50% rise in women reporting the behaviour, and with it a large increase in the number of perpetrators being brought to justice, along with a decrease of over one-third in incidents of abuse. One key area is the need to consult, as the Government have done, on criminalising abuse that involves coercive control in a domestic setting as well as making domestic abuse itself a separate criminal offence.

A further issue for consideration is whether the prosecution of domestic abuse and domestic violence cases should be subject to statutory time limits. Domestic abuse and violence has often gone on for some time before an incident is reported by the victim. Under the current arrangements, many earlier incidents that have occurred and which make up the totality of the abusive behaviour, cannot also be the subject of a prosecution along with the incident that finally led the victim to decide to report what had been happening.

Our amendment also calls for consultation to consider a new civil order which would be intended to prevent further contact that amounts to domestic violence, would prohibit the perpetrator from engaging in certain activities, perhaps including contact with the victim and the children of the victim, and would exclude the perpetrator from the victim’s home. Such a consultation could also consider whether a breach of this civil order should be a criminal offence and whether such notices and orders should extend across European boundaries, with offending histories and restrictions being shared.

The issues to which I have referred and those set out in the amendment providing for consultation are ones that outside organisations and experts in this field have advocated. The government consultation on coercive control has recently concluded. It would be helpful to know, first, what steps the Government intend to take following that consultation and, secondly, whether the issues referred to in my Amendment 49C and others to which I and other noble Lords have referred, are also either being considered by the Government or were part of the consultation that has just concluded. I hope that the Minister will be able to indicate in his response what issues or courses of action the Government are now considering following their consultation on strengthening the law on domestic abuse.

[Baroness Hamwee]

My Lords, I am in no doubt that there needs to be more effort, more prosecutions, more resources, better practice and better training in the area of domestic abuse. I find it difficult to comment on the amendment moved by the noble Lord, Lord Wigley, because it is essentially a trailer for provisions that we do not have before us, but the first steps must be about implementing the existing legislation in a consistent and robust fashion: prosecuting for physical and non-physical forms of abuse, both of which are possible. However, successful prosecutions are rare. I have mentioned training; there is a need for specialist training throughout the criminal justice system. The issue is hugely important to ensure, among other things, that the basics of violence in a domestic situation are properly understood.

The series of actions that constitute abuse are crimes now. Interestingly, the domestic violence charity with which I have the closest links, Refuge—I do not know whether I need to declare an interest in that I chaired it a while ago—commented in its response to the Government consultation that it is concerned that creating a separate domestic violence offence could in fact lead to it being treated less seriously and being downgraded. We know that the phrase, “It’s just a domestic”, is still hanging around. The charity points out that there is a risk that even physical offences may be downgraded, so I think that there is a debate to be had on that. It does not necessarily follow that badging what is a domestic crime would lead to it being regarded in a different way.