My Lords, I am glad that the noble Baroness is intent on pursuing these two amendments, to which I have added my name. She mentioned a report published recently by the Centre for Women’s Justice. The report mentioned that a defendant must be prepared, which I think means in both senses of the term, to disclose in court in the presence of the deceased’s family, how he—it is usually
he—had treated her; it is usually her. I would add to that the further difficulty of disclosing the behaviour in the relationship in front of one’s own family. Shame is another component of what we have been discussing, however misplaced it is.
I mention this because I want to use this opportunity to ask the Minister about the MoJ’s review of the issues raised in this debate. I heard the Secretary of State for Justice being interviewed yesterday about the sentencing Bill which has just been introduced in the Commons. He talked about the views of a victim’s family. He referred to the victims’ commissioner, having talked to her about the disproportionately high sentences imposed because the weaker partner, as has been referred to, had to arm herself because she could not defend herself with her bare hands against a stronger person. Can the Minister tell us more? There is clearly a relationship between this and what we are discussing in the context of these amendments. Amendment 50 is not about sentencing but about culpability, and if there should be a review, we should not delay.
During the Bill’s passage, I have been struck by how fast our understanding of domestic abuse has been developing. The noble Baroness, Lady Kennedy, referred to this. In Committee, the right reverend Prelate said that she is a passionate defender of trauma-informed interventions. I am with her there. Would we have heard that 10 years ago? Perhaps 10 years ago, because that was post Corston, but it would have been quite rare in the sort of debate that we are having now, not in specialised circles and among professionals, but in this sort of debate.
Reading the report that I have just referred to, I was struck by the observation that often abuse is disclosed very late, sometimes after conviction, especially when abuse has taken the form of coercive control. The noble Baroness, Lady Kennedy, explained in Committee that this was the form of abuse in all the cases that she had been involved in. So much of our debate has touched on, if not centred on, training. I refer to this here because it is a shorthand way of referring to a thorough understanding of the subject, or as thorough as it can be, while understanding of the whole issue continues to develop.
In Committee, the Minister, when arguing for the status quo, said that it is important to ensure that wherever possible, people do not resort to criminal behaviour—well, indeed. The amendment proposed is quite limited. To quote from the 2008 Act as amended for the householder cases,
“the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.”
He also argued, as, he said, an “enthusiastic” fan of the common law, that
“the courts are quicker, more nuanced and more flexible in developing the common law”.—[Official Report, 3/2/21; col. 2285.]
They are not quick, nuanced, and flexible enough, or we would not be having this debate. I do not know the genesis of the 2008 Act but clearly it was thought then that it was necessary to produce legislation on reasonable force for the purposes of self-defence, and then of course we had the householder defence. I hope that as an equally enthusiastic parliamentarian—the enthusiasms
are not mutually exclusive—the Minister takes the view that there are occasions when Parliament should lead the way.
9.15 pm
I find it difficult to accept, and indeed I cannot accept, that there can be a householder defence—“the Englishman’s home is his castle”, which some called for—but not an equivalent defence in the extreme cases dealt with by Amendment 50.
I have also added my name to Amendment 51. In Committee, I referred to the Modern Slavery Act, which the noble Lord, Lord Randall, mentioned, and I do not want to repeat that. But I came across a briefing from the Prison Reform Trust that included a paper from the Criminal Bar Association, written in 2017. It addressed the potential application of duress to domestic abuse and coercion. It quoted the noble and learned Baroness, Lady Hale, in the 2005 case of Hasan—as usual, she was in the vanguard—and I cannot do better than to quote her. Although it was obiter, what she said was very clear and relevant:
“I have no difficulties envisaging circumstances in which a person may be coerced to act unlawfully. The battered wife”—
we have moved on from that sort of terminology, but this was in 2005—
“knows very well that she may be compelled to cook the dinner, wash the dishes, iron the shirts and submit to sexual intercourse. That should not deprive her of the defence of duress if she is obliged by the same threats to herself or her children to commit perjury or shoplift food … It is one thing to deny the defence (of duress) to people who choose to become members of illegal organizations, join criminal gangs, or engage with others in drug related criminality. It is another thing to deny it to someone who has quite a different reason for becoming associated with the duressor and then finds it difficult to escape. I do not believe that this limitation on the defence is aimed at battered wives at all, or at others in close personal or family relationships with their duressors and their associates, such as their mothers, brothers and sisters.”
These are important amendments, and we support them enthusiastically.