It is a great privilege to take part in this debate and to hear the voices of so many people with expertise in this field —sometimes direct experience—speaking with wisdom and compassion about why the law had to change.
I remind noble Lords that not so very long ago there used to be a way of referring to domestic abuse as “a domestic”, as though it were lesser than ordinary crime. It has been a long and hard struggle to have the law shift and change, for the agenda and context to change and for our political and legal classes to understand the full import of domestic violence and the toll it takes on our lives and the whole of society. That is why it has been so uplifting to listen to this debate over the last few weeks. I will move for two new statutory defences to be included in the Bill and give notice that I intend to divide the House.
In 2017, the Home Office Minister for Crime, Safeguarding and Vulnerability said there needed to be a root and branch review of how women are treated in the criminal justice system when they themselves are victims of abuse. Unfortunately, criminal law still fails to protect those whose experience of abuse drives them to offend. I strongly urge this House that there cannot be two classes of victim: those who somehow win our compassion and for whom we are desirous of a much fairer system and those who somehow fall outside that kind of protection.
We know that the law has failed women in many different areas for many years, and that one of the reasons why has been the absence of women in lawmaking—in the senior judiciary and in Parliaments. Happily, we have seen that changing in our society over recent decades, but there is still work to be done. I am attempting in these amendments, supported by colleagues around the House, to fill a really important gap—for those who perhaps have least voice because they end up in prison.
These amendments are supported by virtually every organisation involved—I do not know any organisation involved in domestic abuse that is not supporting this change. Once you really know about abuse and its ultimate potential consequences, which can often be the death of a woman or a victim of abuse, you know that sometimes the person on the receiving end can take no more and, out of despair and desperation, inflicts violence. We have to understand the context, and what has often been missing in the courts was a full understanding of domestic violence and the context.
I know that, even in this House, we learn from each other and from each other’s experience, directly and indirectly, about what is involved and what the long-term impact of domestic abuse can be. It has been in only recent times, for example, that forms of abuse other than violence have been shown to have long-term consequences that can be so damaging to someone’s mental health. That learning has, in turn, to be fed into the law.
The organisations supporting these amendments include Women’s Aid, Rights of Women, Refuge, the Criminal Bar Association and the Centre for Women’s Justice, which has been a very important part of the research-gathering for these amendments. One of the pieces of work has come out of a report recently published by the Centre for Women’s Justice, Women Who Kill: How the State Criminalises Women We Might Otherwise Be Burying. The Victims’ Commissioner supports these changes. The domestic abuse commissioner- designate supports these amendments. Unfortunately, at the moment, the Government do not. Is this about not wanting to be seen in any way to support persons who might be accused of crime, rather than seeing that you are really supporting victims?
The first of the amendments, Amendment 50, has a new statutory defence relating to self-defence and the reasonableness test that applies to it. This amendment would afford justice to women who, after long-term abuse, are unable to avail themselves of self-defence when they are accused of harming their abuser, using force against their abuser or, indeed, killing their abuser. Why does self-defence not work in these circumstances? The reason is that the force used in self-defence must be reasonable, but because of their experience of relentless abuse and their physical disadvantage, women often reach for a weapon. As a result, their action is often deemed disproportionate because, in examining whether something is reasonable, which is an objective test, the question is asked, “Is it proportionate to what was happening to her at the time?”
Of course, it might not seem proportionate if a woman runs to the kitchen drawer, or reaches to the kitchen counter, and picks up a knife, or, as Sally Challen did, reaches for a hammer and causes a fatal blow to her controlling, abusive husband. I even represented a woman who took a rolling pin and hit her husband, causing an injury to his skull that ended in his loss of life. But he had abused her over years and years, and she could not take any more. So, we have to look at the ways in which we can contextualise this form of abuse, and look at why self-defence does not work for women. The research conducted in the report by the Centre for Women’s Justice really lays it out very clearly.
I just raise the comparison that I put before the House originally, when I spoke at Second Reading and then in Committee. I pointed out that there had already been a departure from the normal rules when dealing with a householder. The Government’s response then was to distinguish a householder’s fear if someone trespassed on to their property—an Englishman’s home is his castle—as, not knowing who they may be, they may take a weapon from a drawer and use it fatally, from the position of a victim of domestic violence taking a weapon in her hand.
I suggest that the point was ill made, because no one is suggesting a parallel. A departure has been made from the normal rules, which were made with a different perception in mind, by men of law who had not imagined the circumstances of domestic violence, the long-term abuse, the toll that it takes and the psychological impact it has on someone—the rising fear, the reading of a situation, the complexity referred to by the Minister and the dynamic that is created in these relationships. The point that I was making was that a departure has been made for the circumstances of the householder. If we are prepared to make it there, why are we so reluctant to make it here, particularly when it is going to be made use of by women—rare as these cases are—defending themselves against someone?
We heard today of the Government’s change of heart in their concession that non-fatal strangulation should become a crime, properly recognised by the courts at the right level. I have not worked on a single homicide where such a strangulation has not put people in fear that, one day, it will extinguish their life. That has been part of the histories that they have given to the court about the way in which they have been treated over the years.
The concern here is that self-defence is not working in these cases. The amendment seeks to introduce the test that was introduced for the householder, which is that, instead of being reasonable and proportionate, it would have to be grossly disproportionate to lose the right to draw down self-defence as a rationale or defence for conduct and for seeking an acquittal. For most of these women, because they face a conviction of murder if they fail, those acting for them persuade them to plead guilty of manslaughter. They are driven down another road that will lead to a conviction, but that is not the justice of the situation. They plead guilty to manslaughter, are convicted and end up in prison. That conviction will have consequences for their lives—employment and so much else—when they have been at the receiving end of abuse. That is quite wrong. It is in the hands of the Government to make a difference and I call upon them to reconsider their position.
I turn now to an interesting piece of academic work that was written under the names of Sheehy, Stubbs and Tolmie in 2012. It is about defences against homicide from battered women, as a comparative analysis of laws in Australia, Canada and New Zealand. This House can be persuaded by research from elsewhere, if changes have been made in other common law jurisdictions. It would be good for us to take a lead. When Theresa May introduced this legislation, she spoke of the United Kingdom leading the world in making changes to law that would bring proper justice to anybody facing domestic abuse, particularly women. Seeing whether others have made those changes first is not necessary, but it is helpful to look at research.
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The research by Sheehy, Stubbs and Tolmie shows that the same problems exist in other jurisdictions. In Canada, they have tried to find ways of dealing with this by contextualising. Self-defence would be measured as having to be grossly disproportionate only if the nexus was with a context of domestic abuse. They then talk about how tweaking away at other parts of it have not been successful.
Self-defence is still a problem in these three jurisdictions. They point out that the guilty pleas women end up tendering to lesser charges of manslaughter because they cannot invoke self-defence mean that they risk compromising their innocence. They deny themselves the acquittal they would be deserving of if the law were fairer. That is the reason for Amendment 50.
Amendment 51 draws on a similar experience of women not being able to use the law because it was manmade. It did not ever contemplate the circumstances in the lives of women coerced and compelled into acts they are not consenting to in the ordinary way because of the ways they have to live with partners. I was taken with what the noble Lord, Lord Paddick, just said about compliance being rewarded and defiance being punished—that toxic way of having to live with an abusive partner, where you are having to please and do things to prevent abusive conduct.
Amendment 51 is the second statutory defence we are seeking to introduce. This provides a defence where a person is compelled to commit a crime because they live in a situation of domestic abuse. They live in fear, under the control of their abusive partner and there is a history of domestic abuse. There has to be the nexus with domestic abuse. It is not about everybody being able to make the claim; there would have to be that history. There would have to be evidence of abuse and of being compelled to commit the crime.
It happens and the circumstances will be familiar to people who have dealings with the courts: where women who are abused and under the control of their partner are forced to store stolen goods, hide guns or drugs and end up before the courts. They end up losing their liberty and are separated from their children. It is a horrible cycle: their children are taken into care; if they live in council accommodation, they lose their accommodation and the destruction becomes intergenerational. We really have to examine this to see whether we can find a fairer and more just way of doing things.
The general principle of criminal law is that those who chose to break the law are held responsible for their crime, and so it should be. But this amendment would create an exception. The exception is on the grounds that the choice is not being made voluntarily. It is not going to apply in every case, but it will in cases where there is clear evidence of coercion, a fear of violence or being killed by a partner and a sense of powerlessness, which we know is the experience of those subject to serious domestic abuse.
It is not one size fits all, which was a concern expressed by the noble Baroness, Lady Fox of Buckley. This is very much about looking at the evidence in a particular case and creating a nexus between the history of abuse and the compelling of someone to commit a crime. The question will arise: what is wrong with duress? Is duress not a defence in law? I should say that duress rarely avails itself to any defendant because it sets such a high bar. It is particularly hard for women who have been abused. Again, the tests are unsuitable for this situation because, of course, they turn on questions such as, “Was the threat such that it would overbear the will of an ordinary person?” There is also what used to be called the reasonable man test,
although we now call it the reasonable person test, as though that cancels out the problems. However, it does not do that because you have to weave in aspects of the woman’s experience. The threat must be of death or of serious harm. The question is asked, “Did he actually say that he was going to kill you if you did not hide his gun?” But he does not have to say the words because she will know that that threat was persistent while they were living together.