Lord Wolfson of Tredegar
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Domestic Abuse Bill
Lord Wolfson of Tredegar ExcerptsWednesday 10th March 2021
(3 years, 8 months ago)
Lords ChamberRead Full debate Domestic Abuse Bill 2019-21 View all Domestic Abuse Bill 2019-21 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: HL Bill 171-III Third marshalled list for Report - (10 Mar 2021)
The Parliamentary Under-Secretary of State, Ministry of Justice (Lord Wolfson of Tredegar) (Con)
My Lords, as I indicated in Committee, I agree with the general aim of the amendment, which is to ensure that criminal liability and punishment for a breach of a DAPO should occur only if the breach is proved to the criminal standard of proof. I heard from the noble Baroness, Lady Hamwee, and a number of other contributors to this short debate that the essential purpose of the amendment is for me to repeat from the Dispatch Box what I set out in a letter. I will aim to do just that.
I therefore make two main points. First, a breach of a DAPO is a criminal offence. As with all criminal offences, this will require the police to investigate the case and refer it to prosecutors, who will decide whether to pursue a prosecution. Secondly, the fact that a breach of a DAPO is a criminal offence means that, as with all criminal offences, the criminal standard of proof will apply automatically when the court is dealing with the case. A criminal conviction cannot be entered, or criminal sanctions imposed, unless and until the criminal standard of proof has been met.
The criminal standard of proof applies, therefore, when we are dealing with a breach of a DAPO. It does not apply when we are dealing with the making a DAPO. When we look at whether a DAPO should be made, the civil standard of proof applies—that is, the balance of probabilities. But in order to impose criminal sanctions for its breach, the criminal standard of proof will apply—that is, beyond reasonable doubt. I hope that has set out the position clearly and unambiguously.
Picking up on the point made by the noble Baroness, Lady Fox of Buckley, “beyond reasonable doubt” is the standard of proof; “without reasonable excuse” is an element of the offence, which would have to be proved to that standard. That is the difference between the two phrases.
We have taken this approach to the DAPO because we want to send a clear message to perpetrators that breach of an order is a serious matter and will be acted on. As I stated in Committee and during my engagement with the noble Baroness and others since, this approach is similar to other civil protective orders that carry criminal liability for breach, such as the non-molestation order, stalking protection order and knife crime prevention order. The approach is therefore consistent with our existing legal framework.
The noble Baroness, Lady Hamwee, asked why some victims may not want to go for criminal sanctions. That might not be their preference for a number of reasons. First, they may be concerned about the possible consequences for their partner or ex-partner and would not want them criminalised for a breach or, indeed, if the point of the question was, “Why isn’t the original order criminal?”
Fundamentally, the proposed orders are intended to be preventive and not punitive. They will enable courts to impose positive requirements which can help to achieve long-term sustainable behaviour change and challenge perpetrators to address their abusive behaviour. For example, the perpetrator might be required to attend a behaviour change programme or an alcohol or substance misuse programme, or undergo a mental health assessment. That may help those victims who wish to maintain a relationship with their partner or family member but want the abuse to stop. It is a strength of the DAPO that it is such a flexible remedy.
The noble Baroness, Lady Hamwee, raised contempt of court. If a victim wanted a breach of an order other than one made in a magistrates’ court to be dealt with as a civil contempt of court, they could make a committal application to the court, including for an arrest warrant, if necessary. In those circumstances, the court has the power to remand the perpetrator on bail or in custody. We would expect that victims’ views would be considered, together with other questions of public interest, when deciding which sanction for breach is appropriate.
On her point about the guidance, the noble Baroness, Lady Hamwee, will recall that in Clause 48 there is a provision for guidance to the police, and in Clause 73 there is provision for guidance to others, including victims.
This is one of the strengths of the DAPO when compared to other existing orders used in these cases, such as the domestic violence protection order. The responses to our consultation highlighted that the absence of a criminal sanction following breach of the DVPO limits the effectiveness of that order. We have therefore ensured that non-compliance with a DAPO is met with the appropriate consequences. In that regard, I reiterate a point I made in Committee: in its report, the Joint Committee did not raise issues with using the civil standard of proof for making a DAPO when examining the draft Bill.
As the noble Lord, Lord Ponsonby, noted, the noble Lord, Lord Paddick, raised on a number of occasions that we are making a move from civil standard to criminal standard when breached. With respect, I have set out the Government’s position in response to that on a number of occasions. We are satisfied that the system we have in the Bill is appropriate. There is nothing in the point, I would respectfully say, that there is something wrong with criminal sanctions on breach for an order made on the balance of probabilities. They are two conceptually distinct questions First, what is the standard for the order to be made? Secondly, what do you have to prove for criminal sanctions when there is a breach of that order?
As for the question on going to the magistrates’ court, one of the strengths of this order is that it can be issued quickly in response to a crisis incident, as with the existing domestic violence protection order. As the noble Lord, Lord Ponsonby of Shulbrede, said, ultimately, we are dealing with the question of protection for victims.
I hope that my explanations on the standard of proof in this short debate, alongside the explanations I provided in Committee and my subsequent discussions with noble Lords, have been helpful. I hope that what I have said today has been clear and unambiguous. I therefore respectfully invite the noble Baroness to withdraw her amendment.
Baroness Hamwee (LD) [V]
My Lords, I think my noble friend Lord Paddick’s question about the underlying architecture, if that is the right phrase, still stands, but I will not pursue it now. I am grateful to the Minister for all he said about the application of the provisions. I did not make myself as clear as I should have done about what he explained as someone not wanting to go for criminal prosecution. That was not quite my point, which was about inability and due process, which is a term we would do well to keep in mind—due process for both parties.
The Minister has been very clear in his explanation of the standard. I am conscious of how much business the House has to get through today, so I will not prolong this. I beg leave to withdraw the amendment.
Lord Wolfson of Tredegar (Con)
My Lords, first, I congratulate my noble friend Lady Newlove on bringing forward these amendments, which, as she said, will create a new criminal offence of strangulation and suffocation. A number of tributes have been paid to my noble friend; they are all well deserved and I associate myself and the Government with them. If I may pick up one phrase used by the noble Lord, Lord Blunkett, she has made a real difference and, moreover, in a really important area. I assure him and the House that we listen. I will listen to noble Peers on this and on other matters. We will not always agree but I will always listen.
There have been a number of powerful and brief contributions. The noble Baroness, Lady Jones of Moulsecoomb, was kind enough to thank the Government, which is very welcome. I will seek to make it a more regular occurrence but it is warmly accepted. As the noble Lord, Lord Hunt of Kings Heath, mentioned, and as my noble friend Lady Newlove identified, a number of organisations have worked hard in this area. Their names are on the record and they deserve the credit as well.
I am also personally grateful to the noble Lord, Lord Marks of Henley-on-Thames, for the discussions which he and I have had on this matter, together with the noble Lord, Lord Anderson of Ipswich. They have been extremely useful to me. Perhaps I may also pick out some good discussions I have had with somebody who did not contribute to this debate but has worked hard in this area: the noble Baroness, Lady Bertin. She certainly improved my knowledge of and focus on this matter.
My noble friend Lady Newlove has highlighted to the Government why this new offence was necessary. She has engaged with me and my officials, to whom I should also pay tribute for working at significant speed, together with Professor David Ormerod—I think I can now say Professor David Ormerod CBE. This is not the first time, and will not be the last, that he has contributed significantly to the criminal law of this country. I will take a few moments to explain the architecture of the offence, because it is a new offence.
The key amendment in the group is Amendment 49, which provides for the substantive new offence. Strangulation and suffocation are always dangerous and, subject to the issue of consent, which was raised by a number of noble Lords and which I will come back to, they are wholly unacceptable. Strangulation can not only injure but be used by perpetrators to cause fear or exert control over their victim, as part of an abusive relationship.
Amendment 49, as I have stated, seeks to create a new offence of non-fatal strangulation or suffocation in England and Wales. It applies to behaviour which is currently criminal, so the aim is to improve the ability to prosecute such offences effectively—a point made by a number of noble Lords. The offence is designed to deal with assaults on any person where this affects their ability to breathe, whether by application of force to the neck—that is, strangulation—or by any other act; for example, by suffocation or constriction. The offence applies to all cases where strangulation or suffocation takes place, including those that occur in a domestic abuse situation. To pick up the point made by the noble Lord, Lord Marks of Henley-on-Thames, this offence is not restricted to domestic abuse situations but it is quite right that it is in this Bill, because it is often found in those situations.
Although such criminal behaviour can currently be captured under the offence of battery or, where more serious harm is caused, via the offence of causing actual bodily harm under the Offences against the Person Act 1861, the Government have been persuaded of the need to distinguish such crimes through a stand-alone offence. Serious offences against the person currently require actual bodily harm, which can make cases of strangulation or suffocation potentially difficult to prosecute. That is because the victim may have no, or limited, signs of injury. The problem can be compounded by the fact that the existing charge of battery, which carries a penalty of six months’ imprisonment, does not enable the seriousness of the offence as experienced by the victim—the terror caused during the assault or the often long-lasting psychological effect of it—to be suitably punished.
Unlike the summary-only offence of battery, the new offence of strangulation or suffocation will not be time-limited if a prosecution does not commence within six months of the offence. But perhaps of greater importance here, as my noble friend Lady Newlove identified, the new offence will expose the defendant to a more serious sentence than the current six months’ imprisonment for battery. That is because the nature of the harm required to qualify for the maximum five-year penalty has been reduced.
Member’s explanatory statement
This amendment, and the Minister’s amendment at page 35, line 30, would change the current label of “domestic abuse support” in Clause 55 to “accommodation-based support” and are consequential on the Minister’s other amendments to Clauses 55 and 56 relating to “other local authority support”.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, as the noble Baroness, Lady Finlay, said, the Minister has been generous with his time and has spoken with the group twice. The purpose of this amendment is well understood by the contributors to this short debate and by the Minister. The purpose is simple: it is to close a loophole, to make sure that all child contact centres reach the necessary standard, that there is some form of overview and accreditation and that there are consequences if that standard is not reached.
As the noble Baroness, Lady Burt, succinctly put it, we know that, as far as the courts are concerned, only accredited child contact centres should ever be used. However, what about other referrals to child contact centres? What about private referrals or referrals by local councils or other organisations such as Barnardo’s?
In the discussions that we have had with the noble Lord, Lord Wolfson, he has asked for proof that there is a problem. As the noble Baroness, Lady Burt, said, it is difficult to provide proof, because you are looking for organisations and child contact centres that do not necessarily advertise their services. If they run into problems, they can easily withdraw the advertising and re-emerge in another form, but with the same people running them. At the moment, there are no consequences for people playing fast and loose with the system, if I may put it like that. There needs to be some consistency across the range of services and regulated services that children use. This anomaly needs to be addressed and I can see no better place to do it than in this Bill with this amendment right now. I and my party will support the amendment if it is moved to a vote.
Lord Wolfson of Tredegar (Con)
My Lords, as I indicated in Committee, I fully recognise that the provision of child contact centres is extremely important to supporting families and enabling parents to have contact with their children, while at the same time providing a safe environment that protects children and adults from potential harm. As the noble Baroness, Lady Burt, put it, there is no agenda here, in the sense that we all have the same aim. The question is the best means of achieving it.
It is essential that all children experience the same high level of care and safeguarding where circumstances have necessitated their involvement with the family justice system and child contact centres or services. I thank noble Lords and the National Association of Child Contact Centres for their engagement with me and my officials since Committee. I have met, on a number of occasions, several noble Lords who have spoken in support of this amendment. I have found those discussions extremely helpful and I am grateful to them for the time that they gave to discussing the issue with me in more detail.
This amendment differs from the amendment debated in Committee, because it provides that the child contact centres should be accredited in accordance with national standards to be specified in regulations laid by the Secretary of State. The amendment in Committee did not specify who would set the accreditation standards. I continue to question whether the statutory accreditation proposed in this amendment is required or would provide a more effective form of regulation than that which currently exists through the NACCC accreditation framework and the statutory regulations governing local authorities.
I extend my sincere thanks to the NACCC for the useful overview of the current landscape of unaccredited child contact centres and services in England and Wales that it produced following Committee. That review was conducted at some pace and has been used to inform further discussions on this matter. While I accept and take on board the point made by the noble Baroness, Lady Burt, and the noble Lord, Lord Ponsonby of Shulbrede, that it is hard to identify evidence in this area, it is fair to say that the work that was done was at a somewhat high level.
Baroness McIntosh of Pickering (Con) [V]
My Lords, may I address head on two points that the Minister has raised? First, the case has been made of how difficult it is to access the evidence and whether it is in the public interest to put this in the public domain. This is an extremely sensitive area and we have done our best to provide the evidence on the two occasions when my noble friend has requested it. Secondly, there is a legislative loophole. The Government undertook to come forward with regulations to establish the regulatory framework to set the standards in place and they have failed to do so. For what reason have the Government not brought forward these regulations and why are they not prepared to bring them forward at this time? I am at a loss to understand why that is the case.
Lord Wolfson of Tredegar (Con)
I will be brief. On the first point that my noble friend raised about evidence, I accept that people have done their best in the short time available. However, with respect, the points that I made about the high-level nature of that evidence stand. At the moment, we are not persuaded that there is a need to legislate in this area. On the second point about the loophole, I would be repeating what I said earlier. For the reasons that I set out, the position at the moment is that the use of unaccredited child services is rare. In circumstances where they are used by local authorities, that would be covered by their statutory duty under the Children Act. In those circumstances, we are not persuaded that the amendment is required or would even necessarily be effective.
Baroness Finlay of Llandaff (CB) [V]
I am most grateful to the Minister for his fulsome reply and for trying to get to grips with this issue, but I point out that it has been 14 years since the need for standards was originally raised. I did not mention some cases in my speech today because I have not been able to check them out in detail—we could not track down the details of the services—but I have names of services that I would be prepared to share in confidence with the Minister. I believe that there is evidence that this area is unregulated, that there is a gap and that children are at risk now, today. If we are dealing with domestic abuse, we must not leave children vulnerable. Therefore, I wish to test the opinion of the House.
Member’s explanatory statement
See the explanatory statement to the Minister’s amendment at page 35, line 25.
(a) is, or is at risk of being, a victim of domestic abuse;(b) ”Member’s explanatory statement
This amendment ensures that rules of court made by virtue of subsection (1) of Clause 62 must make provision which enables the court to make a special measures direction in respect of a party or witness in civil proceedings who is a victim, or is at risk of becoming a victim, of domestic abuse.
Lord Wolfson of Tredegar (Con)
My Lords, I apologise for the short intermission while we changed places. The government amendments in this group relate to special measures and the ban on cross-examination in person as they operate in civil proceedings. The Government have taken careful note of the debate in Committee on Clauses 62 and 64, particularly the argument that there should be equivalent protections for the victims of domestic abuse in the civil courts as in family courts. I am personally grateful to the noble Lord, Lord Marks of Henley-on-Thames, for our discussions about these issues. As I explained in Committee, while we want to ensure that there is parity between each of the jurisdictions, we also need to build in allowances for the differences. That is why the provisions in respect of cross-examination and special measures in civil proceedings differ from those in family proceedings.
I shall speak first to Amendment 32 in respect of Clause 62. It is worth noting that the original provision in the Bill was based on recommendations made by the Civil Justice Council in its report published last year entitled Vulnerable Witnesses and Parties within Civil Proceedings. However, having reflected on the representations we have received and the cogent arguments put forward in Committee by the noble Lord, Lord Marks, Amendment 32 would extend eligibility for special measures to those at risk of domestic abuse in addition to the existing provisions which provide eligibility for special measures for the victims of specified offences. We see the force of the argument to include this measure so that there will be an equivalent level of protection for domestic abuse victims across the jurisdictions. The Civil Procedure Rules will lay out how this is to work in practice, but the instruction in the Bill is a clear indication that those victims who have not reported their perpetrator to the police will have an opportunity to let the court know where they are at risk of domestic abuse.
As the existing clause provides, judges will still need to consider whether the quality of a person’s evidence or the person’s participation in proceedings is likely to be diminished by reason of vulnerability and, if so, whether it is necessary to make one or more special measures directions. However, we believe that including provision for those at risk of domestic abuse will mean that these victims will be covered and given the ability to avail themselves of special measures.
I shall say a further word on that, which I mentioned in Committee as well. By their nature, civil cases have the potential to cover a much broader range of circumstances where there is no prior connection between the parties; for example, where a victim is suing an alleged perpetrator of sexual abuse, an action against an employer where abuse is alleged, or in a boundary dispute. This amendment is therefore an appropriate step. The breadth of cases in the civil courts means that it may not be appropriate in all cases to grant special measures, although our amendment makes it likely that they will be granted where there is a genuine need.
I turn now to Amendments 33 to 40 to Clause 64. These introduce an automatic ban on cross-examination in person by a litigant in person if the party to proceedings has been convicted or cautioned in relation to a specified offence against a party to the proceedings or where there is a protective injunction between the parties. The witness may also introduce additional evidence to prove that they are a victim of domestic abuse, and this too can give rise to an automatic ban. The evidence would be based on legal aid evidentiary standards and may include a letter from a GP or an employer. This is provided for in family courts through Clause 63. These amendments would therefore move the position in civil courts substantially closer to the provision in family courts on a ban on cross-examination. However, as with the point I made in regard to Clause 62, we have to be mindful of the differences between the two jurisdictions.
The clause, in so far as it relates to banning the cross-examination of vulnerable parties or witnesses, again stems from the report by the Civil Justice Council. The council recommended that the prohibition of cross-examination by a self-represented party should be extended to cover civil proceedings, thereby ensuring some parity with the criminal and family jurisdictions. The council did caution, however, that the ban or prohibition should not be automatic and absolute, bearing in mind the broad range of cases that come before the civil courts.
As I have said previously in our debates on the Bill, we have concerns in relation to the civil jurisdiction that there should be an automatic ban on cross-examination where the position is only that someone is charged with an offence against an individual; that is, where the facts of the case have yet to be proven. In the circumstances where someone is charged with an offence, we believe that it should be left to the discretion of the court to determine whether a ban is appropriate on the facts of a particular case. That is because, as I have said, civil and family jurisdictions are different in type of case they deal with, the civil jurisdiction having a much wider range.
I believe that these amendments will give better protection to victims of domestic abuse and bring closer parity between the civil and family jurisdictions. I beg to move.
Lord Marks of Henley-on-Thames (LD)
My Lords, I explained in Committee the reasons for my amendments, which were directed at ensuring that special measures and the prohibition of direct cross-examination should be applied in civil cases on the same or a very similar basis as they are to be in family cases. Our debates highlighted the difficulties, fear and trauma for parties and witnesses in giving evidence and taking part in proceedings where they were victims or at risk of being victims of domestic abuse at the hands of other parties or witnesses. We spoke of the effect of reliving the trauma of abuse in subsequent court proceedings and the fear of the consequences of giving or challenging evidence given by or in the presence of perpetrators.
I argued that in many civil proceedings the risks and effects were the same. I mentioned disputes over property and goods, landlord and tenant disputes, employment disputes, inheritance disputes and business disputes—particularly when partners break up and the separation of their joint business interests gives rise to litigation. It is a truism for litigation lawyers that the disputes giving rise to the most bitterness and unpleasantness are precisely those where the litigants have a close personal connection. However, of course I take the Minister’s point that the range of disputes in civil cases is very much broader than it is in family cases.
The Government have listened to those concerns. I am particularly grateful to the Minister for the time that he and officials in his department made available to consider these issues and for the very useful discussions we had, which have led us to the position that special measures are now to be extended to persons who are or who are at risk of being a victim of domestic abuse, where the original unamended clause required that the person had to be the victim of a specified offence for which the perpetrator would have had to have been convicted, cautioned or charged.
I am delighted that the Government have agreed, no doubt because so many cases of domestic abuse never reach that stage—largely because so much abuse goes unreported or is never the subject of criminal investigation—that victims and those at risk of being victims should be protected in civil proceedings, as they are to be in family proceedings.
Although the amendments on direct cross-examination are complex, as the Minister has explained, they effectively offer broadly equivalent protection to victims of abuse in civil proceedings to that offered in family proceedings, which was the aim of my amendments. In addition to the discretionary protection which the court is to be able to give as a result of new Section 85F of the Courts Act 2003, to be introduced by Clause 64, there is now to be a clear bar on direct cross-examination in cases where the victim is a victim of an offence or protected by an injunction or where there is evidence of domestic abuse against the victim by a party or witness. The nature of the evidence to be required to trigger the mandatory bar will be specified in regulations. It is to be hoped that no undue formality will be required, but I am confident that will be the case.
These amendments achieve what I set out to achieve: to protect witnesses and parties in civil proceedings who have been subject to domestic abuse. I am therefore very pleased to have been able to add my name to the amendments and say—it is not the first time it has been said today—that this process has shown the House at its best. It has been a model of co-operation between some of us on the Opposition Benches and the Government of the day.
Lord Wolfson of Tredegar (Con)
My Lords, I hope the House will forgive me if I am brief, because I am conscious there is a lot of business still to get through. I thank the noble Lord, Lord Marks of Henley-on-Thames—my co-sponsor of these amendments—for his kind words and engagement. As he said, we have reached the position where there are broadly equivalent provisions in place across the jurisdictions.
I am also grateful for the support of the noble Lord, Lord Ponsonby of Shulbrede. The point he raised about remote working and the courts having to work in real time in dealing with the pandemic and its effects is very important. To say any more at this stage would take me both outside the confines of this Bill and well off my brief. However, I have no doubt we will discuss it in this and other contexts in future.
“85EA Prohibition of cross-examination in person: victims of offences(1) In civil proceedings, no party to the proceedings who has been convicted of, or given a caution for, a specified offence may cross-examine in person a witness who is the victim of that offence.(2) In civil proceedings, no party to the proceedings who is the victim of a specified offence may cross-examine in person a witness who has been convicted of, or given a caution for, that offence.(3) Subsections (1) and (2) do not apply to a conviction or caution that is spent for the purposes of the Rehabilitation of Offenders Act 1974, unless evidence in relation to the conviction or caution is admissible in, or may be required in, the proceedings by virtue of section 7(2), (3) or (4) of that Act.(4) Cross-examination in breach of subsection (1) or (2) does not affect the validity of a decision of the court in the proceedings if the court was not aware of the conviction or caution when the cross-examination took place.(5) In this section—“caution” means—(a) in the case of England and Wales—(i) a conditional caution given under section 22 of the Criminal Justice Act 2003,(ii) a youth conditional caution given under section 66A of the Crime and Disorder Act 1998, or (iii) any other caution given to a person in England and Wales in respect of an offence which, at the time the caution is given, the person has admitted;(b) in the case of Scotland, anything corresponding to a caution falling within paragraph (a) (however described) which is given to a person in respect of an offence under the law of Scotland;(c) in the case of Northern Ireland—(i) a conditional caution given under section 71 of the Justice Act (Northern Ireland) 2011, or(ii) any other caution given to a person in Northern Ireland in respect of an offence which, at the time the caution is given, the person has admitted;“conviction” means—(a) a conviction by or before a court in England and Wales, Scotland or Northern Ireland;(b) a conviction in service disciplinary proceedings (in England and Wales, Scotland, Northern Ireland, or elsewhere), including—(i) in the case of proceedings in respect of a service offence, anything that under section 376(1) and (2) of the Armed Forces Act 2006 (which relates to summary hearings and the Summary Appeal Court) is to be treated as a conviction for the purposes of that Act, and(ii) in the case of any other service disciplinary proceedings, a finding of guilt in those proceedings;(c) a finding in any criminal proceedings (including a finding linked with a finding of insanity) that the person concerned has committed an offence or done the act or made the omission charged;and “convicted” is to be read accordingly;“service disciplinary proceedings” means—(a) any proceedings (whether or not before a court) in respect of a service offence (except proceedings before a civilian court within the meaning of the Armed Forces Act 2006);(b) any proceedings under the Army Act 1955, the Air Force Act 1955, or the Naval Discipline Act 1957 (whether before a court-martial or before any other court or person authorised under any of those Acts to award a punishment in respect of an offence);(c) any proceedings before a Standing Civilian Court established under the Armed Forces Act 1976;“service offence” means—(a) a service offence within the meaning of the Armed Forces Act 2006, or(b) an SDA offence within the meaning of the Armed Forces Act 2006 (Transitional Provisions etc) Order 2009 (S.I. 2009/1059);“specified offence” means an offence which is specified, or of a description specified, in regulations made by the Lord Chancellor.(6) The following provisions (which deem a conviction of a person discharged not to be a conviction) do not apply for the purposes of this section to a conviction of a person for an offence in respect of which an order has been made discharging the person absolutely or conditionally—(a) section 14 of the Powers of Criminal Courts (Sentencing) Act 2000;(b) section 82 of the Sentencing Code;(c) section 187 of the Armed Forces Act 2006 or any corresponding earlier enactment.(7) For the purposes of this section “offence” includes an offence under a law that is no longer in force.85EB Prohibition of cross-examination in person: persons protected by injunctions etc (1) In civil proceedings, no party to the proceedings against whom an on-notice protective injunction is in force may cross-examine in person a witness who is protected by the injunction.(2) In civil proceedings, no party to the proceedings who is protected by an on-notice protective injunction may cross-examine in person a witness against whom the injunction is in force.(3) Cross-examination in breach of subsection (1) or (2) does not affect the validity of a decision of the court in the proceedings if the court was not aware of the protective injunction when the cross-examination took place.(4) In this section “protective injunction” means an order, injunction or interdict specified, or of a description specified, in regulations made by the Lord Chancellor.(5) For the purposes of this section, a protective injunction is an “on-notice” protective injunction if—(a) the court is satisfied that there has been a hearing at which the person against whom the protective injunction is in force asked, or could have asked, for the injunction to be set aside or varied, or(b) the protective injunction was made at a hearing of which the court is satisfied that both the person who applied for it and the person against whom it is in force had notice.85EC Prohibition of cross-examination in person: evidence of domestic abuse(1) In civil proceedings, where specified evidence is adduced that a person who is a witness has been the victim of domestic abuse carried out by a party to the proceedings, that party to the proceedings may not cross-examine the witness in person.(2) In civil proceedings, where specified evidence is adduced that a person who is a party to the proceedings has been the victim of domestic abuse carried out by a witness, that party may not cross-examine the witness in person.(3) In this section—“domestic abuse” has the meaning given by section 1 of the Domestic Abuse Act 2021;“specified evidence” means evidence specified, or of a description specified, in regulations made by the Lord Chancellor.(4) Regulations under subsection (3) may provide that any evidence which satisfies the court that domestic abuse, or domestic abuse of a specified description, has occurred is specified evidence for the purposes of this section.”Member’s explanatory statement
This amendment provides for an automatic prohibition in civil proceedings on the cross-examination of witnesses in person in certain cases, similar to the provisions in Clause 63. For example, it prohibits a party who has been convicted of a specified offence from cross-examining in person a witness who is the victim of that offence. “Specified” here means specified in regulations made by the Lord Chancellor.
“Orders under section 91(14) of the Children Act 1989Orders under section 91(14) of the Children Act 1989
(1) The Children Act 1989 is amended as follows.(2) In section 91 (effect and duration of orders etc.), at the end of subsection (14) insert—“For further provision about orders under this subsection, see section 91A (section 91(14) orders: further provision).”(3) After section 91 insert—“91A Section 91(14) orders: further provision(1) This section makes further provision about orders under section 91(14) (referred to in this section as “section 91(14) orders”).(2) The circumstances in which the court may make a section 91(14) order include, among others, where the court is satisfied that the making of an application for an order under this Act of a specified kind by any person who is to be named in the section 91(14) order would put—(a) the child concerned, or(b) another individual (“the relevant individual”),at risk of harm.(3) In the case of a child or other individual who has reached the age of eighteen, the reference in subsection (2) to “harm” is to be read as a reference to ill-treatment or the impairment of physical or mental health.(4) Where a person who is named in a section 91(14) order applies for leave to make an application of a specified kind, the court must, in determining whether to grant leave, consider whether there has been a material change of circumstances since the order was made.(5) A section 91(14) order may be made by the court—(a) on an application made—(i) by the relevant individual;(ii) by or on behalf of the child concerned;(iii) by any other person who is a party to the application being disposed of by the court;(b) of its own motion.(6) In this section, “the child concerned” means the child referred to in section 91(14).””Member’s explanatory statement
This amendment inserts a new section 91A into the Children Act 1989 which makes further provision about the circumstances in which the court may make an order under section 91(14) of that Act (also known as a barring order), including where the court is satisfied that the making of a further application for an order under that Act, by any person to be named in the order, would put the child concerned, or another individual, at risk of harm.
Lord Wolfson of Tredegar (Con)
My Lords, Amendments 41 and 104 relate to Section 91(14) of the Children Act 1989. Last year we committed to exploring whether an amendment to the Bill was needed to clarify that Section. As noble Lords will be aware, it deals with barring orders, as they are often called, which allow courts to bar individuals from making further applications without permission of the court. Importantly, therefore, the order does not prevent access to the court; it prevents making an application without first obtaining the permission of the court to do so.
In Committee, the noble Lord, Lord Rosser, and my noble friend Lady Newlove asked for an update on the progress of the work. On responding to an amendment on barring orders put forward by the noble Lord, Lord Ponsonby of Shulbrede, I said that I would consider the issue of Section 91(14) carefully ahead of this next stage. I can assure noble Lords that I have done precisely that.
The sad fact is that perpetrators sometimes use the family court as a way to continue their abuse, often bringing their victims back to court repeatedly, which can in itself be a traumatising process. It is an abuse of the victims and also, therefore, an inappropriate use of the court process.
As it is currently formulated, Section 91(14) of the Children Act 1989 does not include any detail as to the circumstances in which such barring orders should be used. Courts have therefore elaborated the principles for when such barring orders may, and should, be made. Last year we heard compelling evidence from the expert panel in its report Assessing Risk of Harm to Children and Parents in Private Law Children Cases that, while they can be an effective measure, Section 91(14) barring orders are not being used sufficiently to prevent perpetrators continuing their abuse through the use of court applications under the Children Act 1989.
Before I go further, I want to pay respectful tribute to the noble and learned Baroness, Lady Butler-Sloss, who delivered the seminal re P judgment in this area of law back in 1999. For over two decades the guidelines included in that leading judgment have been regarded as the main reference point for judges when they are making the often difficult decision on the use of Section 91(14). It is fair to acknowledge that it is clear from those guidelines that specific cases and types of harm, including harm from domestic abuse, are not excluded from consideration for a barring order. None the less, now is the right time for us to act on the evidence presented by the harm panel about how Section 91(14) is being understood and applied, particularly in domestic abuse circumstances.
As is evident from the many debates we have had on the Bill, we now know far more about the prevalence of domestic abuse and the different forms that it can take than we did in 1999. It is therefore right that as the Bill approaches the end of its parliamentary journey, we use the opportunity to clarify the ambit and application of Section 91(14) to ensure that we are providing greater protection to victims, survivors and their children.
The Government are clear that barring orders are available to protect parents and children where further proceedings would risk causing them harm, and particularly where proceedings could be a form of continuing domestic abuse. To that end, Amendment 41 introduces a new provision into the Children Act 1989: new Section 91A. The new section clarifies that the circumstances in which a court may make a barring order include where the court is satisfied that a further application made by the named person would put the child or another individual—for example, the parent victim—at risk of harm. It is a non-exhaustive example; the discretion is preserved, but an additional statutory indication is provided. As I have mentioned, this amendment responds to recommendations made by the harm panel.
The aim of Amendment 41 is therefore to make it clearer to courts and practitioners that Section 91(14) barring orders are indeed available where a further application would pose a risk of harm to a child or a parent victim, and in particular where that application could constitute further domestic abuse. In that context, I should highlight to noble Lords that while this amendment does not expressly mention domestic abuse, it refers to the concept of “harm” that is already found in the Children Act 1989. This is because the definition in Section 31(9) of the Children Act is already very broad. It already includes coercive control and other forms of domestic abuse, along with many other forms of harm.
We touched on that point in the government response to the Joint Committee’s recommendation to amend the definition of harm. As we said there, we believe that singling out a specific form of harm in any part of the 1989 Act could have unintended negative consequences and risk appearing to give greater weight to one form of harm than another. We do not want to create a hierarchy of harm. We have therefore opted for the wider concept of harm, consistent with the approach in the Children Act.
We have also responded to the harm panel’s report in a further way. The new Section 91A makes it clear that in determining whether to grant permission to make an application to a person who is subject to a barring order under Section 91(14), the court must consider whether there has been a material change of circumstances since the barring order was made. Our intention is to require that courts consider carefully whether the circumstances that gave rise to the barring order have materially changed, such that permission to apply should be granted. The amendment does not draw a red line such that permission can be granted only if there has been a material change of circumstances, but we believe that the inclusion of this provision, which requires the court to consider this question, will offer further protection to domestic abuse victims.
The amendment also makes it clear that courts can make these orders on their own initiative—of their own motion, as it used to be said—for example, without an application being made by the victim for an order to be made. This, too, is a response to the harm panel’s recommendations. We want to put beyond doubt that there need not be an application for a barring order in order for the court to consider making one. Of course, the court will still need to give due consideration to the making of such an order, but the amendment clarifies that the court can make an order on its own initiative.
The Government are therefore confident that the amendment will mean that barring orders are used more often by courts to protect victims of domestic abuse where further applications put them at risk of harm. It will also make sure that permission to apply will be granted only where the court has considered whether there has been a material change of circumstances since the order was made, and also clarify that courts can make these orders on their own initiative. For those reasons, I beg to move.
Lord Marks of Henley-on-Thames (LD)
My Lords, we support this government amendment and the amendment of the Title of the Bill that goes with it. As the Minister has explained, Section 91 of the Children Act permits the court to make a barring order—that is, an order forbidding someone, usually an applicant who has failed to persuade a court to make an order in his or her favour, from making an application for an order of a particular kind; this is usually but not always a repeat application—with respect to a child, importantly, without the leave of the court.
An order under this section still permits a further application for an order to be made if the court decides to permit it, which the court may in its discretion decide to do. This amendment, as the Minister has explained, extends the discretion to make a barring order if a further application would put the child concerned, or another individual, at risk of harm. That is the real purpose and merit of this amendment: it is for the protection from repeated litigation of those who might be victims of domestic abuse, when that repeated litigation often amounts to a particularly unpleasant form of harassment by legal proceedings.
The jurisdiction is similar to the court’s jurisdiction to make civil restraint orders and civil proceedings orders against vexatious and unmeritorious repeat litigants in civil cases. Under this government amendment, a person subject to a barring order may of course seek permission to apply further to the court. That application for permission will be considered, but the court considering whether permission should be given to make a fresh application must consider whether there has been a change of circumstances since the making of the original order. That, I suggest, seems entirely sensible. The amendment therefore strikes a careful and judicious balance between protecting potential applicants and providing a safeguard against people being harassed by unmeritorious repeat litigation.
Lord Wolfson of Tredegar (Con)
My Lords, again, I hope that the House and the noble Lords, Lord Marks of Henley-on-Thames and Lord Ponsonby of Shulbrede, will forgive me for being brief. I am conscious of the amount of the work that we have to get through. I am grateful for their comments and support for the purpose and effect of these amendments. As the noble Lord, Lord Marks, put it, we are striking a careful and judicious balance here between access to courts and preventing the court process being used as a vehicle for abuse. As we were reminded by the noble Lord, Lord Ponsonby of Shulbrede, it is not only in cases of domestic abuse that Section 91(14) is available, although that is the purpose of the amendments before the House.
Again, with apologies for being brief, because there appears to be broad agreement, I beg to move Amendment 41.
Lord Rosser (Lab) [V]
My Lords, the proposed new clause in this amendment moved by the noble Baroness, Lady Jones of Moulsecoomb, would disapply the presumption that parental involvement furthers a child’s welfare in cases where there has been domestic abuse. It would also prohibit unsupervised contact for a parent awaiting trial or on bail for domestic abuse offences where there are ongoing criminal proceedings for domestic abuse or where the parent has a criminal offence for domestic abuse. I moved a similar amendment in Committee which did not receive the backing of a number of speakers in the debate or of the Minister.
In his response in Committee, the Minister said:
“I have a great deal of sympathy for the aims of these amendments, and I agree that more needs to be done to ensure that the courts take proper account of the impact that domestic abuse can have on children’s well-being and safety.”
He went on to say that
“following the recommendations from the Expert Panel on Harm in the Family Courts, the Government launched a review on the presumption of parental involvement”
which
“will focus on the presumption … and the impact on children’s welfare of the courts’ application of these provisions.”
He argued that it would
“be premature to amend the legislation relating to the presumption … before gaining the in-depth evidence from the review.”—[Official Report, 3/2/21; col. 2222.]
However, we should not forget that Women’s Aid’s Nineteen Child Homicides documents the cases of 19 children in 12 families who were killed in circumstances relating to child contact by a father who was the perpetrator of domestic abuse. The Expert Panel on Harm in the Family Courts said that it had
“received sufficient evidence to conclude that in the cohort of cases described in submissions the presumption further reinforces the procontact culture and detracts from the court’s focus on the child’s individual welfare and safety.”
The report also states:
“The panel is clear, however, that the presumption should not remain in its present form.”
There is thus some clear and, indeed, tragic evidence that the present arrangements relating to the presumption of parental involvement as opposed to solely what is in the best interests of the child, including its welfare and safety, are just not delivering the protections they should. However, in the light of the concerns expressed by some noble Lords in Committee, which have been repeated today, and the current review of the presumption of parental involvement, we did not put down the amendment for Report. Instead, we will continue to pursue this issue outside the discussions and debates on the Bill.
Lord Wolfson of Tredegar (Con)
My Lords, as the noble Baroness, Lady Jones of Moulsecoomb, has explained, Amendment 42 seeks to disapply the presumption found in the Children Act—that parental involvement furthers the child’s welfare—when there has been domestic abuse that has affected the child or the other parent.
The amendment also seeks to prohibit unsupervised contact by a parent in a number of different circumstances: when they are on bail awaiting trial; when there are ongoing criminal proceedings for a domestic abuse offence; when a fact-finding hearing concerning domestic abuse allegations is pending; and when domestic abuse is proven in such a fact-finding hearing or as a result of a criminal conviction for a domestic abuse offence.
In Committee, many noble Lords spoke passionately about the presumption of parental involvement and gave a number of examples of unsupervised contact leading to tragic results in cases which involved domestic abuse. The noble Lord, Lord Rosser, reminded us of some of them this evening. As I said in Committee, I have significant sympathy for the aims of this amendment and agree that more needs to be done to ensure that the courts are taking proper account of the impact domestic abuse can have on children’s well-being and safety. That is why this Government, in November 2020, following the recommendations from the Expert Panel on Harm in the Family Courts, launched a review of the presumption of parental involvement. The noble Lord, Lord Rosser, and the noble Baroness, Lady Uddin, referred to the harm panel’s report, but it is important to acknowledge that the panel did not call for immediate legislative change, despite hearing evidence from more than 1,200 parties. Instead, the panel recommended that a full review be undertaken by the Government, and that is precisely what we are doing.
In my respectful view, the panel was right to do so because, as the debate in Committee demonstrated, this is a complex and nuanced issue, with a significant real-world impact for the thousands of families who go through the family courts every year. That review will focus on the application of the provision and its exceptions, and the impact on children’s welfare of the courts’ application of those provisions. Through the review, we will develop a strong evidence base and ensure that any changes brought about as a result of it are rooted in a solid understanding of the effect of the presumption and the associated evidence on child welfare. I remain of the view that it would be premature to amend the Children Act in the way proposed by the amendment before gaining the in-depth evidence and response from the review.
Lord Ponsonby of Shulbrede (Lab) [V]
My Lords, the noble Baroness, Lady Bertin, powerfully moved this amendment and went into the detail of the problems that arise when refuge addresses are revealed. I fail to understand why judges, in her words, are turning a blind eye to the requirement to keep the secrecy of a refuge; I fail to imagine why that might be the case. Nevertheless, either mistakes happen or some judges—very few—have an alternative view. What I understand from the noble Baroness, Lady Bertin, is that she wants the Minister to put on record that guidance will be updated and to make it absolutely clear that this should not happen again. I do not know whether she is going to move her amendment or what will happen, but I would have thought that, at the very least, the Minister should be able to do that and say that guidance will be updated.
The noble Baronesses, Lady Hamwee and Lady Uddin, both have experience of working in refuges and they know the importance of keeping these addresses secret. I hope we will hear from the Minister something that sufficiently reassures his noble friend Lady Bertin that this issue can be properly addressed once and for all.
Lord Wolfson of Tredegar (Con)
My Lords, I am very grateful to my noble friend Lady Bertin for her continued engagement on the issue of the confidentiality of refuge addresses. I take this opportunity to thank refuge providers and others in the sector who took time out of their very busy diaries to meet me on this issue: we had a very useful discussion.
As with many issues with the Bill, it seems to me that we all agree on the issues of principle. Refuges are places of safety. They play a vital role in effectively responding to domestic abuse, and in supporting victims and their children. Therefore, I am in complete agreement with the principle underlying my noble friend’s amendment, that those in refuges must be protected. As such, it is right that the Government and those involved in family proceedings carefully consider both whether existing measures offer enough protection and whether there are further steps that could be taken better to protect domestic abuse victims living in refuge accommodation.
In Committee, I outlined that those engaged in family proceedings are not required to disclose their address, or that of their children, unless specifically directed to do so by the court. Where such a disclosure direction is made, addresses are disclosed to the court only, and it is for the court to determine whether information it holds should be disclosed further. Where there are known allegations of domestic abuse, the court should hold this information as confidential. I reassure the noble Baroness, Lady Hamwee, that the formulation I used in Committee was certainly intended to indicate agreement.
Turning to the service of orders at refuge addresses, I again thank those from the refuge sector with whom I discussed this issue and their experience of it. They gave some valuable evidence, and we heard some more this evening from the noble Baroness, Lady Uddin. As I indicated in Committee, existing measures, particularly Part 6 of the Family Procedure Rules, enable the court to direct bespoke service arrangements, and orders can be served at alternative addresses, such as the refuge office address. This approach should be taken wherever possible.
I noted the way that the noble Baroness, Lady Hamwee, put it: service on a refuge should be avoided. However, as I said on the last group, the real question is the welfare of the child, which is of paramount consideration in family proceedings. I remain of the view that there can be limited circumstances where the court may need to serve an order on a party at the refuge they are staying in because not doing so would pose risks to the safety of children involved in family proceedings.
One can envisage such cases, and I would not wish to limit the court’s ability to act quickly in those circumstances to safeguard a child, which might occur were we to place a blanket or inflexible restriction on addresses at which an order can be served. However, I would expect family proceedings where an order needs to be served at a residential refuge address to be very few and far between. Although the question must ultimately be a matter for the judiciary and not for the Government Front Bench, one would expect that a refuge address would be used only when there is no other viable alternative in the circumstances.
I have indicated that existing measures enable protection for victims in refuges. However, I am persuaded that there is a legitimate question of whether those measures could be strengthened to ensure that victims are better protected, that addresses are not disclosed to perpetrators, and that service of orders at refuge addresses is directed only when absolutely necessary. While I am clear that primary legislation, and therefore this amendment, is not the appropriate response here, there are other routes to explore, as I have discussed with my noble friend since Committee.
This issue has been discussed between Ministers and the President of the Family Division in recent bilateral meetings. I assure my noble friend that the judiciary is taking seriously the concerns raised. I appreciate, in this context, that the noble Lord, Lord Ponsonby of Shulbrede, wanted some reassurance from the Government; I hope I am giving it to him. The Whips may not agree, but one of the benefits of making slightly slower progress on Monday than we intended is that I can now say that this matter was discussed at the meeting of the Family Procedure Rule Committee on Monday, which was a couple of days ago. The committee agreed to work on this issue and will be giving it detailed consideration in the coming weeks and months.
The Government are committed to protecting vulnerable victims of domestic abuse from further harm by their abuser. I am confident that this issue is being properly and carefully considered by members of the senior judiciary and by the Family Procedure Rule Committee. I have full sympathy with the motivation behind this amendment. I understand why my noble friend has maintained this, and why the noble Lord, Lord Marks, had considerable sympathy with it on the confidentiality point, although I note that he did not engage with the lack of any exception to the proposition set out in subsection (3) of the proposed new clause—that is, service on a refuge address.
I have used my response to set out what the Government are doing and the steps being taken. I hope that, having provided that assurance to my noble friend, she will now be content to withdraw her amendment.
Baroness Bertin (Con) [V]
I thank noble Lords for their valuable contributions to this short but very important debate. I am grateful to the noble Baroness, Lady Hamwee, for her support and for putting her name to the amendment, and likewise to the noble Baroness, Lady Uddin, for her kind words. It was powerful to hear that the noble Lord, Lord Marks, with all his deep knowledge of the law on these issues, and the noble Lord Ponsonby, agreed with the amendment. I felt it was important to hear them say that, and I thank them for it.
I am of course disappointed that my noble friend the Minister does not see that there is a need to put this into the Bill. I will never accept that there is justification for revealing the location of a refuge, but I have really appreciated the time that he has given to this issue. I can tell that he cares; he obviously has a concern about this issue and is committed to trying to deal with it. I absolutely accept that his response has gone further than that in Committee, so I will bank that progress and am grateful for it. We have indeed spoken at length about other routes to explore, and I will certainly be keeping in touch with him on this. I also want to pursue greater transparency.
I was very reassured—as my noble friend said, the timing has been fortunate—that the issue has already been discussed with the President of the Family Division on the back of the amendment. I do not doubt the judiciary’s willingness to tackle this and to take these accounts seriously. We will certainly keep a close eye on this and the progress that it makes. With that in mind, I will withdraw the amendment.
Baroness Wilcox of Newport (Lab) [V]
My Lords, I must begin by applauding the frankness and honesty of the noble Lord, Lord Paddick, in his speech. It is truly humbling to hear him speak so bravely about his own former coercive partner.
In bringing this much-needed amendment to the House, the noble Baroness, Lady Morgan, has recognised the changes that have occurred in society since the widespread introduction of mobile phone technologies and social media coverage. It has changed irreversibly the way in which we communicate, and the inherent dangers of the misuse of that communication have become increasingly prevalent. I warmly support her tenacity in getting the amendment through the process. Clearly, her colleagues and former colleagues in Government have listened and acted on her arguments. It will make a difference.
As a former teacher of media studies, I had no idea, just five years ago, when I was last in the classroom, how exploitative or dangerous the medium would become. The threat to share intimate or sexual images and films is an increasingly common tool of coercive control, which can have enormous negative impacts on survivors of abuse. While the sharing of intimate and sexual images without consent is a crime, threats to share are not, leaving survivors of this form of abuse without the protection of the criminal law.
During my reading for this topic, I was powerfully moved by a key report, Shattering Lives and Myths, written by Professor Clare McGlynn and others at Durham Law School, which was launched in 2019 at the Supreme Court. It sets out the appalling consequences for victims of intimate images being posted on the internet without consent.
Threats to share these images play on fear and shame and can be particularly dangerous where there may be multiple perpetrators or where so-called honour-based abuse is a factor. The advent of new technologies enables perpetrators to make these threats even where such images do not exist. But there is no clear criminal sanction for this behaviour. Lack of support leaves victims and survivors isolated, often attempting to navigate alone an unfamiliar, complex and shifting terrain of legal provisions and online regulation. The Domestic Abuse Bill is the most appropriate vehicle to make this change. Victims and survivors would benefit almost immediately and it would help them prevent further abuse and get away from their perpetrator. This amendment will close that gap in the law.
Lord Wolfson of Tredegar (Con)
My Lords, my noble friend Lady Morgan is to be congratulated on bringing forward these amendments. As she has explained, the amendments seek to extend the scope of the offence at Section 33 of the Criminal Justice and Courts Act 2015, commonly known as the revenge porn offence, additionally to criminalise threats to disclose such images. Importantly, in any prosecution there is no need to prove the images exist at the time of the threat.
I reiterate that the Government consider that the revenge porn offence has worked well to date. There have been over 900 convictions for the offence since its commencement in April 2015. I am pleased to see that the creation of this offence has offered victims protection under the criminal law from the deeply distressing behaviour of sharing private intimate images.
I am very grateful for the discussions that I have had with the sponsors of the amendment in addition to my friend Lady Morgan: my noble friend Lady Hodgson of Abinger and the noble and learned Lord, Lord Judge. I have been happy to add my name on behalf of the Government to the amendment.
However, we cannot rest on our laurels. We must be alert, as the noble Lord, Lord Russell of Liverpool, said, to changes in technology, including the misuse of social media and the opportunities to abuse and distress others that such developments can bring. While we have a range of criminal offences that in many instances can deal with those who threaten to share intimate material with others, it is vital that we ensure that the criminal law remains fully equipped to deal with any new problems in this constantly developing area.
It was with this in mind that the Government asked the Law Commission to review the law in this area. That review has considered the existing offences relating to the non-consensual taking and sharing of intimate images to identify whether there are any gaps in the scope of protection already offered to victims. Noble Lords will be pleased to note that on 27 February the Law Commission published the consultation paper on the review. The consultation ends on 27 May and I encourage noble Lords to consider contributing to that public engagement, as my noble friend Lady Morgan of Cotes said.
The consultation paper puts forward a number of proposals for public discussion, including the need to address those who threaten to disclose intimate images. I look forward to the Law Commission’s full proposals in this area once its final recommendations are published later this year. I agree with the noble Lord, Lord Russell of Liverpool, that the law must keep pace with technological developments. I would not say that we are behind the curve but I think that it is fair to say that the curve itself is constantly moving. While it would be wrong of me to pre-empt the consultation and the Law Commission’s eventual findings, I think the fact that the commission has acknowledged that threats to disclose intimate images should be further considered adds strength to the calls to extend the revenge porn offence, as provided for in Amendment 48.
We have listened to the passionate calls for change from victims. They have bravely shared their distressing, and sometimes life-changing, experiences of suffering at the hands of those who would manipulate and torment them with threats to share their most personal and intimate images. That point was made during this short debate by the noble Baronesses, Lady Crawley and Lady Uddin, and in particularly moving terms by the noble Lord, Lord Paddick. Since I have just mentioned the noble Baroness, Lady Uddin, I remind her that sex and relationship education is part of the national curriculum.
We have also taken note of the views of campaigners and fellow parliamentarians. I remember the strength of feeling in this House in Committee, when my noble friend and others proposed a similar amendment to the one now before us. We have reflected on those calls and that debate and we are happy to support these amendments, which will extend the parameters of the Section 33 offence to capture the threat of disclosure.
As was noted by the noble and learned Lord, Lord Judge, and the noble and learned Baroness, Lady Butler-Sloss, Amendment 48 stays as close as possible to the provisions and drafting of the existing Section 33 offence, rather than making any broader changes to the law in this area. I suggest that that is the right approach given the Law Commission’s ongoing work. I assure the noble and learned Lord and the noble and learned Baroness that the Law Commission is specifically considering the intent issue as part of its work. I am grateful that the amendment also has the support of the noble Baronesses, Lady Jones of Moulsecoomb and Lady Wilcox of Newport.
I should say something in response to the speech made by the noble Baroness, Lady Fox of Buckley. This is nothing to do with criminalising speech and we are not dealing with just domestic abuse here. This is a broad offence that applies throughout criminal law; it does not apply just in the context of domestic abuse. While I agree that other criminal law offences, such as blackmail and harassment, can be applicable in this area—a point I made in Committee—the Government have been persuaded that it is right and appropriate to have this specific offence in this area of the law.
For those reasons, I believe that this reform will create a clear and consistent enforcement regime for both threats and actual disclosures, thereby providing greater protection to those who may have had to endure such intrusive and distressing behaviour. It has been a pleasure to be able to add my name to these amendments, and I join my noble friend in commending them to the House.
Baroness Morgan of Cotes (Con) [V]
My Lords, I thank all noble Lords who spoke in the debate on these amendments. As we heard the noble Lord, Lord Russell, put so eloquently, victims are suffering. I am pleased that the Government have decided that they do not have to wait until the conclusion of the Law Commission process.
Like other noble Lords, I pay particular tribute to the noble Lord, Lord Paddick, for being so brave and clear about his own personal experiences of these issues, which will be outlawed by my amendment. I thank him for sharing his experiences with the House.
Like the Minister, I took careful note of what was said by the noble and learned Lord, Lord Judge, and the noble and learned Baroness, Lady Butler-Sloss. They pointed out that this is not the end of the matter, of course, and that the use of “intent” will be looked at during the course of the Law Commission consultation.
For those who remain in any doubt, I want to share just one of the stories that I heard about. It relates to Rachel, a lady who was physically abused by her partner. After her partner had been arrested and released by the police because of the physical abuse, he threatened to disclose the many images he held on his phone to Rachel’s family and friends unless she went back to the police to change her evidence about the level of physical abuse that she had suffered. She did so and he thought that he had gotten away with it until, sadly, the abuse continued to escalate; at that point, Rachel decided that she had to get out of the family home with her children. I am pleased to say that she is now in a much more positive and better place, but the fact that victims are changing their behaviour and evidence, allowing perpetrators access to their families and returning to them, shows, in addition to the mental suffering, the very real toll that the threat of showing these images has on their lives. It just shows the very real effect that these victims suffer.
I thank the Minister for adding his name to my amendment and I thank his officials in the Bill team, who worked so hard on drafting this amendment and the consequential ones. I am grateful to them and to him for allowing me to move this amendment, and I take great pleasure in moving Amendment 48.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, Amendment 50 is proposed by my noble friend Lady Kennedy of The Shaws, along with Amendments 51 and 66. These amendments were debated in Committee and when my noble friend tests the opinion of the House at the end of this debate, the Labour Benches will support her. Today and during Committee my noble friend, and other noble Lords who have spoken, have highlighted how domestic abuse can lead to death. We all know of the terrible figures about women who die at the hands of a partner or former partner.
My noble friend’s amendment draws attention to the tragic situation where some women—the victims of the abuse—find themselves in the dock when they have in the end killed their abuser, often after years of horrific abuse and in situations where they feared they were going to be killed. The Sally Challen case is an example of where coercive control had not been fully understood by the courts; further, pleading self-defence has not been working for women. My noble friend, who has many years of experience in the criminal justice system, has told the House of truly tragic situations where women have not been treated fairly, or where the horror of the situation that they and their children found themselves in has not been properly appreciated.
These amendments seek to correct this imbalance and would, in my opinion, put the law in the right place by protecting those victims who have had to defend themselves in situations where they have feared for their life. The law should provide them with the ability to mount a defence, along with an understanding by the court of the horrors of domestic abuse and the need, when your life is in danger from an abusive partner or ex-partner, to take actions which are not grossly disproportionate to defend oneself.
As my noble friend said, a situation often plays out where a woman is taken along a route where she has to plead guilty to manslaughter and is convicted. On release from prison, such women have problems for the rest of their lives, for example with employment; they may also find that they have lost their home, or their children may be taken into care.
My noble friend also carefully explained the intent behind Amendment 51; the noble Lord, Lord Randall of Uxbridge, drew attention to his support for it. It mirrors the coercive control provisions of the Modern Slavery Act.
The noble Lord, Lord Paddick, asked a powerful question: why is it that victims of domestic abuse are meant to retreat while someone under attack from intruders in their home has greater protection? That cannot be right.
This has been a very good debate and I look forward to the Minister’s response. As I said, we on these Benches will certainly support the noble Baroness when she divides the House.
Lord Wolfson of Tredegar (Con)
My Lords, I am extremely grateful to the noble Baroness, Lady Kennedy of The Shaws, for providing a full and detailed explanation of the reasons she believes that these amendments should be included in this Bill. In addition to the noble Lords who have spoken today, I am aware of the support that these proposals received last Thursday evening at the parliamentary event hosted by the noble Baroness and Jess Phillips MP on this subject. So that noble Lords do not think that only Kennedys can support other Kennedys, I join the noble Lord, Lord Kennedy of Southwark, in acknowledging and paying tribute to the noble Baroness’s work in, and experience of, this area.
The noble Baroness has put two amendments before the House; they are conceptually distinct, so I will address them in turn. Amendment 50 deals with the defence of the reasonable use of force by victims of domestic abuse who, in self-defence, react to violence from an abusive partner. Amendment 51 would create a new statutory defence for victims of domestic abuse who commit a criminal offence. The third amendment, Amendment 66, is intimately linked to and logically consequent on Amendment 51.
I turn first to the reasonable use of force and Amendment 50. Although the Government are wholly sympathetic to the plight of victims of domestic abuse, we are unpersuaded that there is a gap in the law here that needs to be filled. Nor do we feel that the circumstances of a victim of domestic abuse, who has often experienced that abuse over a prolonged period, are necessarily comparable to that of a householder who suddenly finds an intruder in their home and acts instinctively.
Let me expand on that point. Section 76 of the Criminal Justice and Immigration Act 2008 covers a specific circumstance. Its focus is on those occasions where an intruder, who is unlikely to be known to the householder, puts the householder in a position where they react instinctively as a result of intense stress. By comparison, in domestic abuse cases, the response may not be a sudden instinctual one but may follow years of physical and/or emotional abuse.
Furthermore—and this is an important point—the current law on self-defence and loss of control allows that any previous and extended history of domestic abuse be taken into account. I respectfully disagree with the point made by the noble Baroness, Lady Jones of Moulsecoomb, that the law on self-defence is, to use her word, outdated. It is not. As a result, it does not seem necessary to extend Section 76 of the 2008 Act to a wider set of circumstances as proposed by this amendment, given the defences that already exist in law.
I note too that no mention has been given in this new clause to a defendant’s option to retreat from the abuse, and I make that point with due care. I acknowledge, and am well aware, that an abused woman or man may not have that option. However, although Section 76 of the 2008 Act makes clear that there is no duty to retreat, the option to retreat remains a factor, and, where that is established on the facts of the particular case, it is a matter that will always be taken into account.
Therefore, although I warmly reciprocate the kind words that the noble Lord, Lord Paddick, said about me, and while I respect and acknowledge his personal history and experience, about which he has spoken extremely movingly on a number of occasions, I know that he will not like what I am going to say. I stand by the points that I have just made about the comparison or lack thereof between the householder situation and the situation of a victim of domestic abuse. I think at one point he came close to an implied charge of misogyny. I respectfully say that that does not easily sit with my approach to many amendments to the Bill or indeed the way in which I have dealt with the Bill itself. The issue between us is one of principle.
I am aware too that the noble Baroness who proposed the amendments has stated that there are difficulties with establishing the common-law defence of self-defence in cases of reactive violence by a survivor of domestic abuse against their abusive partner or former partner. As I stated in Committee, the ethos of the Bill is to improve and provide better support for victims of domestic abuse and to recognise and indeed highlight the wide-ranging impacts and implications of such behaviour. In raising the profile of domestic abuse, the Government hope to strengthen not only statutory agency support for victims and survivors but to improve the effectiveness of the justice system in better protecting those who suffer such abuse while bringing perpetrators to justice.
To that extent, I share the aims of the right reverend Prelate the Bishop of Gloucester. I assure her that this is not a question of finance; it is a question of the proper approach that the law should take in this area. That is because it is important for the Government to ensure that there is fair and equal access to justice for all. The law has to balance both the recognition of the abuse that has been suffered and the impact that it has had on a victim against the need to ensure that people, wherever possible, do not revert to criminal behaviour. I was pleased to hear that the noble Baroness, Lady Hamwee, agreed with me, at least on the latter proposition. The Government believe that that balance is currently reflected in the law—a law that continues to evolve but nevertheless strikes the right balance between those factors.
In making that last point, I referred in Committee to the fact that courts can often be quicker, more nuanced and more flexible in developing the common law than can Parliament in introducing a statutory provision that can be too rigid and narrowly drawn and may become more problematic than useful. I expressed myself as a fan of the common law, and I confirm again this evening that my enthusiasm for it is undimmed. Of course I agree with the noble Baroness, Lady Hamwee, that sometimes Parliament can lead the way—but not here.
Before I conclude my remarks on this amendment, I shall reply to one other point made by the noble Baroness, Lady Jones. She said that the Government have moved on several parts of the Bill, so why not this one? The reason is that, for the reasons I have set out, there is a principled argument that we make and which we stand by. I suggest that that argument is rooted properly in the way that the law is now applied and in the distinction between the domestic abuse case and the householder case. Towards the end of her remarks, the noble Baroness asked me a couple of quickfire questions. I am not sure that I have picked them all up, so if, on reading the Official Report, I find that they are relevant to this amendment, I will respond to them.
Although the Government are sympathetic to the aim behind Amendment 50, we remain entirely unpersuaded that it is needed, given the current defences that exist in law and the increased help, support and advice that will be available to victims of domestic abuse throughout the rest of the Bill.
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 66, line 21.
Lord Wolfson of Tredegar (Con)
My Lords, these amendments fulfil an undertaking I gave in Committee in response to amendments tabled by my noble friend Lady Bertin that sought to ensure that UK citizens who commit marital rape in countries where such behaviour is not criminal may none the less be prosecuted in the UK.
I said then that we would consider this matter ahead of Report and, bearing in mind that the extraterritorial jurisdiction provisions are UK-wide, that we would also consult the devolved Administrations to ensure a consistent approach across the UK. We have done both —we have considered and we have consulted. I am pleased to say that, with the agreement of Ministers in Scotland and Northern Ireland, government Amendments 53 to 55, 58 to 61 and 63 to 65 achieve what my noble friend intended, and will apply to relevant legislation throughout the UK. I shall remind the House briefly, given the hour, of the provisions.
Schedule 2 to the Bill contains amendments to various enactments to provide for extraterritorial jurisdiction over certain offences under the law of England and Wales, Scotland and Northern Ireland. This will ensure that, as required by the Istanbul convention, the UK will be able to prosecute these offences when they are committed outside the UK by one of our nationals or habitual residents. The scheme is this: part 1 of the schedule covers England and Wales, part 2 covers Scotland, and part 3 covers Northern Ireland.
In keeping with the normal principles of extraterritorial jurisdiction and the terms of the convention, there is a requirement that a prosecution for one of the relevant sexual offences—these include rape where the victim of the offence is aged 18 or over—may be brought in the UK only when the offending behaviour is also an offence in the country where it happens. This is known as dual criminality.
Lord Kennedy of Southwark (Lab Co-op)
My Lords, this group of amendments addresses marital rape, whereby rape could be committed by a UK citizen in a country that does not consider it a crime and, presently, no prosecution could be brought. The noble Baroness, Lady Bertin, brought the matter to the attention of the House in Committee and has been successful in persuading the Government of the merits of her case and the importance of closing this loophole.
I offer her my sincere congratulations on her success. Her actions will protect women and girls from the horrific crime of rape and ensure that no rapist or perpetrator of these vile crimes can evade justice through making use of this loophole in the law and hide behind the fact that marital rape is not a crime in a small number of countries. This is a good example of the House of Lords doing its job well. An important issue was raised, well argued and supported across the House; the Government considered it carefully and responded positively, bringing forward their own amendments to address the issue.
Lord Wolfson of Tredegar (Con)
My Lords, I hope the House will forgive me again if my reply is very brief, not because the issue is not important but because there is obvious agreement across the House. I again thank my noble friend Lady Bertin for bringing this matter to the Government’s attention and for the discussions we have had. I thank the noble Lord, Lord Paddick, for his kind words on this matter this evening, which I appreciate. I also thank the noble Lord, Lord Kennedy of Southwark; I am very pleased to have his and his Benches’ support on this matter. I will not say any more given the time, but I commend this amendment to the House.
Member’s explanatory statement
This amendment is consequential on the Minister’s amendment at page 66, line 21.