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with the point made by the noble Baroness, Lady Jones of Moulsecoomb, that the law on self-defence is, to use her word, outdated.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.
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I now turn to the conceptually distinct Amendment 51 and the linked Amendment 66. These propose a statutory defence for victims of domestic abuse who commit an offence. These amendments provide such a new statutory defence for victims of domestic abuse who commit a criminal offence and set out the offences to which the defence for victims of domestic abuse who commit an offence will not apply. The Government here also remain unpersuaded. We are unpersuaded that the model on which the proposed new clause is based—Section 45 of the Modern Slavery Act 2015—is either apt or effective.
I make four broad points in this context. First, we are particularly concerned about the anomalies that these amendments could create for other offences. As I stated in Committee, there are a range of serious offences to which the Section 45 defence does not apply. They are mainly serious sexual or violent offences, and the Section 45 defence does not apply to avoid creating legal loopholes through which serious criminals could escape justice. They are set out in Schedule 4 to the 2015 Act, which the amendment here seeks to replicate. While I note that the proposed new schedule seeks to replicate that list of excepted offences, pinpointing the behaviour that caused the offence nevertheless
remains problematic. If 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 a victim of trafficking, slavery or other relevant exploitation under the Modern Slavery Act—the question becomes: at what point in time, and to what type or level of domestic abuse, should any statutory defence be available?
When it comes to providing a defence to a potentially serious criminal charge, it is not appropriate simply to say that there can be any level of abuse that gives rise to such a defence, which is a complete defence to the charge, or that such abuse can be defined, as the Bill does—and I am proud of that—in the widest possible sense. That is not the case with the provisions relating to modern slavery. The defence there does not apply to the widest definition of exploitation of a person, but instead applies to behaviour which meets an existing criminal offence threshold—a threshold for a reasonable person to withstand behaviour directed against them. We are concerned about what could amount to domestic abuse in this context, and therefore what could trigger this absolute defence. That means that the position is so wide-ranging that it potentially provides a full defence to any criminal act, save those offences specifically listed. That is the first broad point.
Secondly, the Government are also concerned that a full defence for a defendant who has 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.
Thirdly, the proposed 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 not to be welcomed, as it increases the risk of making the law inconsistent, unfair and possibly ineffective. That is not in the interests of justice.
Fourthly, the Government are aware of anecdotal evidence from law enforcement partners and others that the Section 45 defence is being misused. I made that point in Committee. There are reports that some offenders are falsely claiming that they are victims of modern slavery to escape justice. That is a very worrying development. It is why the Government are now working with criminal justice partners to assess how that defence is being used in practice, and why the Government are so cautious about the creation of a similar defence which might also be abused in a similar manner.
There are currently several defences potentially available in law to those who commit offences in circumstances connected with their involvement in an abusive relationship or situation. There are full defences—duress and self-defence—as well as, in homicide cases, the partial defences of loss of control or diminished responsibility. These defences are available to a defendant who is a victim of domestic abuse. Full defences, including duress and self-defence, are defences to any crime and, if pleaded successfully, result in acquittal. Partial defences, such as diminished responsibility and loss of control, reduce a charge from murder to manslaughter.
Moreover, 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 the CPS charging decision, to defences under the existing law, and finally as a mitigating factor in sentencing. One thing the Bill does is raise awareness and understanding of the devastating impact of domestic abuse on victims, survivors and their families. But defendants also need to make sure that their legal representatives and the CPS are aware, as soon as possible, of whether they have previously been a victim of domestic abuse and provide details of their domestic abuse history, as this will have an impact on any charging decisions and when considering guilty pleas.
That will need to be offset against the recognition of the harm done by the perpetrator of the crime, and the impact on the victim. It is important to ensure, as I said earlier, that wherever possible, people do not resort to criminal behaviour. It is this ethos that is currently reflected in the law and which seeks to strike the right balance between these various factors. For those reasons, the Government are unable to support the need for a new statutory defence, or indeed for a new defence on the reasonable use of force by victims of domestic abuse. Given that defences are available now in law, and given that courts can interpret and take account of any previous history of domestic abuse in their consideration of a case before them, amendments seeking new defences are considered unnecessary and likely to prove extremely problematic in their application in practice. We will keep the current defences under review.
In response to the point made by the noble Baroness, Lady Hamwee, about the discussion of the Bill in another place, there is a distinction between the defence to an offence, which is what we are talking about, and the sentencing approach, which is, I think, what she was referring to.
We will keep the position under review but, for the reasons I have set out, we have principled objections to both amendments. The noble Baroness, Lady Kennedy, intends to divide the House on each amendment and, as she has given that intimation of her intention, I invite all noble Lords to reject each of them.