My Lords, I first offer my sincere thanks and appreciation to the noble Baroness, Lady Kennedy of The Shaws, for outlining the case for these amendments. In response to her early comments, I can assure her that I have indeed listened to her and benefited from discussing these matters with her, both outside the Chamber in advance of today’s proceedings and in listening to her most diligently this evening. She has considerable experience in this area of the law.
In effect, these amendments seek to create two new defences: first, a defence of reasonable use of force by victims of domestic abuse who, in self-defence, react to violence from an abusive partner; and, secondly, a new statutory defence for victims of domestic abuse who commit a criminal offence. While in tonight’s debate the noble Baroness, Lady Kennedy, focused on the first of those defences, I have had the benefit of discussing both issues with her. I have read briefings on both and therefore hope that my reply will meet the points she has made inside and outside the Chamber. None the less, I will take each amendment in turn, because they raise different issues.
Amendment 139 is on the reasonable use of force. The Government are aware that what is being sought here is an extension to the current provisions to enable victims of domestic abuse to have the same level of protection as those acting in response to an intruder in the home. I am aware that the proposed new clause stems from a campaign by the Prison Reform Trust seeking to clarify the degree of force that is reasonable under the common law of self-defence where the defendant is a survivor of domestic abuse. It has been suggested by the Prison Reform Trust that the common-law defences are unsuitable in the context of domestic abuse.
In that context, as the noble Baronesses, Lady Kennedy and Lady Hamwee, explained, the amendment seeks to build on existing provisions in Section 76 of the Criminal Justice and Immigration Act 2008, with the intention that, as with householders, the degree of force used by the defendant would have to be “grossly disproportionate” rather than simply “disproportionate” by reference to the circumstances that the victim believed them to be, and to take into account other factors set out within Section 76. It has been suggested that this would fill a gap in the law.
Let me start by saying what I hope does not need to be said, given the terms of the Bill and what has been said in Committee on this and previous occasions. The Government recognise the harm suffered by victims of
domestic abuse. Several defences are potentially available in law to those who commit offences in circumstances connected with their involvement in an abusive relationship, including the full defence of self-defence. In addition, the broad definition of domestic abuse in the Bill should assist, I hope, with identifying and clarifying the wide-ranging and pernicious nature of domestic abuse, and alerting all those involved in the criminal justice system to it.
It is worth mentioning at this point that the courts—by which I mean the judges—have developed the common-law defences and their relationship to domestic abuse. We should perhaps pay tribute to the judges for having recognised the nature and impact of coercive and controlling behaviour in the application of the criminal law and in sentencing, as well as in family and civil law. It is sometimes the case that the courts are quicker, more nuanced and more flexible in developing the common law than Parliament can ever be in introducing, by their very nature, more rigid and narrowly drawn statutory provisions. For fans of the common law, of which club I am an enthusiastic member, that is an important point to bear in mind.
There is also a need to balance recognition of the abuse suffered and its impact on the victim with the need to ensure that, wherever possible, people do not resort to criminal behaviour. The Government believe that the balance is currently reflected in the law, which continues to evolve and which aims to strike the right balance between those factors.
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In a moving and very personal speech, the noble Lord, Lord Paddick, asked what the difference was between Section 76 and the proposed new clause in the amendment. I will deal with that head-on. The provisions in Section 76 of the 2008 Act largely cover a specific circumstance where an intruder—in most cases unknown to the defendant—puts the householder in a position where they are reacting on instinct or in circumstances which subject them to intense stress. By comparison, in domestic abuse cases, the response may well not be sudden and instinctive, but may follow many years of physical or emotional abuse. The current law on self-defence and loss of control allows this to be taken into account. So it remains appropriate for this law to be applied, rather than for it to be extended to a wider set of circumstances.
I also note that the amendment does not appear to deal with the defendant’s options to retreat. Section 76 makes it clear that there is no duty to retreat, but this option is still a factor to be taken into account. Again, I note that the circumstances of domestic abuse and a household invasion case may not be comparable, although I am well aware that of course there can be circumstances in which—on the particular facts of the case—an abused woman may not have options to retreat.
We have been advised 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. However, according to the Prison Reform Trust briefing, the rationale for Amendment 139 appears to be that,
“a jury may well conclude that the response was disproportionate without taking account of the long history of abuse.”
Even if such a change were to be made to the law, it would need to be accompanied by guidance and training for the police, CPS, the probation service, defence lawyers and the judiciary in order to ensure that it was applied as intended. Given this, it is not clear why such additional improved or revised guidance and training on the existing law, in so far as it relates to domestic abuse victims, would not be a sufficient additional safeguard in itself, without unnecessarily further complicating the criminal law in areas where we feel it is already robust.
Therefore, although the Government are sympathetic to the aim behind this amendment, we are not persuaded that there is a gap in the law which needs to be filled. Nor does it seem that the situation in which a householder reacts instinctively to an intruder in their home is directly comparable—or, as the noble Baroness, Lady Kennedy, put it, there would be a read-across—with the situation of a victim who has experienced a pattern of violent and abusive behaviour, including behaviour constituting an offence under Section 67 of the Serious Crime Act 2015.
My noble friend Lady Hodgson of Abinger and the noble Lord, Lord Bradley, asked about a review. We regularly reassess the effectiveness of any law and associated practices in protecting victims. We have previously given a commitment to do so in this regard, and we continue to review it.
I turn to Amendments 140 and 145, which seek to provide a new statutory defence for victims of domestic abuse who commit a criminal offence. Again, I am sure I speak for the entire Committee when I say that domestic abuse is an abhorrent act which can inflict significant harm on victims, their children and other family members. That is why we have brought this Bill forward, which not only targets domestic abuse but raises awareness and understanding of its horrific and destructive nature.
In that regard, I listened carefully to the arresting statistics put before us by the right reverend Prelate the Bishop of Gloucester, together with two moving examples of damage done by domestic abuse. Of course I take on board the point made by my noble friend Lady Hodgson of Abinger as to the long-lasting effects of domestic abuse and, as the noble Lord, Lord Bradley, pointed out, the interrelationship that you often find between victims of domestic abuse and learning difficulties.
The Bill seeks to raise the profile of domestic abuse in all its forms, and the wide definition should therefore help to clarify that wide-ranging nature for all involved in the criminal justice system. The new clause specifically proposed by this amendment would apply to victims of domestic abuse who have been coerced or forced to commit a crime because of fear or violence directed by a partner or family member. The defence would apply equally to cases where the victim commits a crime as a result of the domestic abuse that they have endured, which may have been carried out over a period of several years. The proposed new clause originates from a Prison Reform Trust campaign. As the noble Baroness, Lady Hamwee, explained, it is modelled on Section 45 of the Modern Slavery Act 2015—albeit with some differences, which I will come to.
Section 45 provides a statutory defence for victims of slavery and trafficking who are subjected to exploitation. As I just said, the amendment is modelled on that, but it has some important differences, including the replacement of the reasonable person test used in Section 45(1)(d) and (4)(c)—the so-called Bowen test—with a new form of objective test. This test has been replaced for a number of reasons, as I understand it. It has been suggested that the Bowen test is problematic for defendants who seek to rely on duress, where they have felt compelled to commit a criminal offence because of the domestic abuse they have experienced. It has been said that, for victims of domestic abuse who commit a crime to succeed in establishing a defence of duress, they would need to provide evidence of battered woman syndrome and learned helplessness. Additionally, it has been stated that medical evidence would need to be produced, which is often not practicable in cases where the crime committed may be seen as low-level offending, such as those tried in a magistrates’ court.
The amendment proposes a new objective test that would enable a defendant’s experience of domestic abuse to be taken into account without the need for medical evidence, although that could be adduced. The “relevant characteristics” definition, set out in the 2015 Act, would be replaced with a reference to “experience of domestic abuse”. The noble Lord, Lord Paddick, asked what the difference was and why we did not read over from one to the other. The answer is that we are not persuaded that the model on which this amendment is based—Section 45—is right or effective in this context. Of particular concern are the anomalies that the amendment could create for other offences. For example, there is a range of serious offences to which the Section 45 defence does not apply now—generally serious sexual or violent offences, which are set out Schedule 4 to the 2015 Act.
The proposed new schedule provided for in Amendment 145 seeks to replicate the list of excepted offences in Schedule 4 to the 2015 Act. But pinpointing the behaviour that caused the offence remains problematic. Even once we accept that the proposed statutory defence of compulsion to do an act is attributable to a person being a victim of domestic abuse—rather than being a victim of trafficking, slavery or other exploitation —the question then becomes: at what point in time, and to what type or level of domestic abuse, should any statutory defence be available?
The Bill sets out a wide-ranging definition of domestic abuse, and it is right that that wide definition helps to inform people seeking to understand the nature of domestic abuse and assisting in identifying the signs that a person may be a victim of domestic abuse. However, when it comes to providing a defence to a criminal charge—potentially a very serious one—it is not appropriate simply to say that there can be any level of abuse, or that abuse can be defined in the widest possible sense. That is not the case with modern slavery. The defence there does not apply to the widest definition of exploitation of a person but applies to behaviour that meets an existing criminal offence threshold: a threshold for a reasonable person to withstand behaviour directed against them. We are apprehensive that what could amount to domestic abuse,
and therefore what could trigger this defence, is so wide-ranging that it could provide a full defence to any criminal act, save for those offences specifically listed.
Additionally, a full defence for a defendant who had been subject to domestic abuse would create difficulties for other defendants who had been subject to other forms of harm, such as racial harassment or sexual harassment from strangers. We are concerned that any new statutory defence would not only overlap with existing defences and prosecution policies but undoubtedly cause confusion as to which law or policy would be applicable. Uncertainty within the criminal law is something which we really must avoid.
We are additionally concerned by anecdotal evidence given by law enforcement partners and others that the Section 45 defence is being misused. It has been reported that some offenders falsely claim that they are the victims of modern slavery to escape justice. We are working with criminal justice partners to assess how that defence is being used in practice.
Several defences are potentially available in law to those who commit offences in circumstances connected with their involvement in an abusive relationship or situation. They include the full defences of duress and self-defence, as well as the partial defences of loss of control or diminished responsibility in homicide cases, and they are available to a victim of domestic abuse. Additionally, where a person accused of a criminal offence has been subjected to domestic abuse, this will be considered throughout the criminal justice system: from the police investigation through to the CPS charging decision, to defences under the existing law, and as a mitigating factor in sentencing. In considering our response to these amendments, we have sought to make sure that we continue to strike the right balance between all these factors.
To conclude, the Government remain unpersuaded of the need to create a new defence of reasonable use of force or a new statutory defence for victims of domestic abuse. A number of defences already exist and, given that the courts are able to interpret and take account of such matters in their consideration of a case before them, this enables the common law to develop quickly and more flexibly than any statutory defence would. I fear that I will not have persuaded the noble Baroness, Lady Kennedy, that my position is correct, but I hope I have persuaded her that I have listened very carefully to the points she has made this evening and in prior discussions. In those circumstances, I invite her to withdraw her amendment.