Update on plans to take forward the statutory defence proposals in the upcoming Second Reading of the Domestic Abuse Bill in the House of Lords on Tuesday 5 January.
Baroness Helena Kennedy will be tabling the amendments and plans to speak in support of them during Tuesday’s debate, along with other supportive peers and the Rt Reverend Rachel Treweek, Lord Bishop of Gloucester (and Bishop for Prisons). I attach an updated short briefing and a copy of the amendments in full.
Section 45 proposal has been amended to align it even more closely with section 45 itself, by changing the wording of the ‘reasonableness’ test at sub-clause (1)(d) back to the original wording in section 45 – so that in order to succeed, it must be found that a reasonable person with the relevant characteristics ‘would have no realistic alternative to doing that act’. This would make it a harder test for defendants to get over, but it further strengthens our argument that we are simply asking for the same protection that is already afforded to victims of trafficking who are compelled to offend.
Background information on the proposals, including recent articles and the attached short briefing, are all now available via the following link: www.centreforwomensjustice.org.uk/dabill
Tuesday 5 January 2021 Extracts on statutory defence proposals
Rt Rev Rachel Treweek, Lord Bishop of Gloucester (3.10pm):
We know that many women in the criminal justice system are both offenders and victims. In many cases, offending is linked to domestic abuse and coercive control. Almost 60% of women supervised in the community or in custody who have had an assessment have experienced domestic abuse. Many believe the true figure to be higher. English criminal law in its current form does not sufficiently recognise the need to protect survivors of domestic abuse who are driven to offend, whether in self-defence or with relatively minor offences, resulting in women being caught in the revolving door of imprisonment. I therefore support the call for a new statutory defence and an amendment to the law on self-defence to be added to the Bill for those whose offending is driven by their experience of domestic abuse.
Baroness Kennedy of the Shaws (6.45pm)
My Lords, like others in this House, I have been involved in seeking reform of the law on domestic abuse since the 1970s. Change has been a long time coming; for too long, our institutions totally failed to understand the nature of such abuse, and while of course it is not experienced exclusively by women, it is usually the product of deeply embedded power relations, which still work largely against women.
In recent years, the toll of violence on the lives of women and girls has been recognised globally, and it is now present in international conventions. Slowly we have learned that it is not just physical violence but psychological torment, control and coercion, all of which destroys lives. As we heard today, it is hell, and not just for the individual sufferer; it carries a huge social cost, which has already been powerfully described, affecting children, the wider community and so on.
It is important to remember that domestic abuse can lead to desperate events, where victims, seeking to defend themselves, end up in the dock accused of a crime. They are often wrongly convicted because of the law’s inadequacy. Sally Challen was a case in point: she was initially convicted of murdering her husband before coercive control was understood by the courts.
We know that a very high percentage of women in prison have experienced domestic abuse, and, of those, a significant proportion will have been coerced into a criminal act by an abusive partner. It is one of the scandals of our prison system that so many women in prison have themselves been the victims of physical, sexual and psychological abuse as children or adults. I will be urging the Government to create two new statutory defences, which I hope will be widely supported across this House. There is a recognition in most of the organisations that campaign for justice for women that these defences are necessary.
Some noble Lords will remember that, a number of years ago, there were debates in this House around the case of a man called Tony Martin. He had been convicted of murder, having shot an intruder on his property, and his use of a firearm was deemed disproportionate—the boy was unarmed. That debate gave rise to a change in the law by the coalition Government which means that, in effect, a householder gets a substantial margin of appreciation of what is “reasonable” self-defence. This is on the basis that an added sense of threat can be expected to come from being intruded upon within the presumptively safe space of your home.
In her opening remarks, the noble Baroness, Lady Williams, described how the home should be “a place of safety and security”. In just the same way, someone attacked within the presumptively safe space of an intimate emotional relationship should be given the same margin of appreciation. Many of us who practise in the courts and have defended in cases of domestic homicide where there is a history of abuse have long felt that self-defence is in need of modification, to make it accommodate the victims of abuse accused of assault or murder.
The second proposed statutory defence involves a similar read-across. The ground-breaking Modern Slavery Act provides a defence to victims of trafficking who are coerced into the commission of crime. A person is not guilty if they were compelled to commit an offence as a result of their slavery or of being trafficked and controlled by those exploiting them. The bar is not low, but an objective test exists and is applied by asking what it would be “reasonable” to expect of someone in the defendant’s situation, with the same relevant characteristics. Would they have any realistic alternative to committing the crime? In precisely the same way, such a defence should be available to those who are in seriously abusive relationships. Because of its narrow remit, the defence of duress is not providing a defence for such victims who are forced to commit crimes.
Opportunities to change the law do not come along very often, and we can be sure that it will be many years before we can revisit these issues. Moments for change are rare and should be seized. For this reason, I will support many of the additions to the law that have mentioned already, and I will seek to add these two new statutory defences to the Bill. I hope that the Government will come to see that this would create a coherence in law and provide real justice for many victims of domestic abuse.
Baroness Williams of Trafford (for the government) (9.16pm)
The noble Baroness, Lady Kennedy of The Shaws, and the right reverend Prelate the Bishop of Gloucester called for the Government to introduce a statutory defence for victims whose offending is driven by their experience of domestic abuse. We recognise the harm suffered by victims of domestic abuse, which is why a number of defences are potentially available in law to those who commit offences in circumstances connected with their involvement in an abusive relationship. These include the full defences of duress and self-defence as well as, in homicide cases, the partial defences of loss of control or diminished responsibility. In light of these existing defences, we are not persuaded in this case that a statutory defence is necessary, but we will continue to monitor the position.