HL Deb 02 November 2004 vol 666 cc183-90

1 Page 3, line 12, leave out subsection (2).

Baroness Scotland of Asthal

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 1.

During earlier discussion on the Bill, your Lordships voted to insert a requirement into the familial homicide offence that courts should have particular regard to the extent to which defendants may have been the victims of domestic violence. The reasons for this were clear. We all agreed that victims of domestic violence need help and protection. None of us wants to see them suffer further because the consequences of violence have left them unable to protect a loved one.

The Bill is one aspect of a huge programme of work the Government have undergone to tackle domestic violence, raise the profile of the issue and create a situation where it is no longer acceptable. Noble Lords will know of much that we have already done: the launch of the national domestic violence freephone helpline and online database in December 2003 and the national Home Office-led awareness-raising campaign around the new national domestic violence freephone helpline. The comprehensive campaign included posters, radio adverts, national surveys and covered themes such as pregnancy and domestic violence through a national survey to all midwives issued by the Royal College of Midwives, with a press conference of the results.

The black cab awareness-raising campaign launched in April 2003 comprised over 1 million taxi receipts with the helpline numbers, 325 tip-up seats, a checklist for cab drivers, a liveried cab and mandatory induction for awareness raising for all new cab drivers. This is still continuing and has had very good results in the evaluation of the campaign.

We have funded awareness-raising material for black and minority ethnic groups around the issues of marriage and honour crimes. A package of measures was announced last week to tackle forced marriages.

Christine Mann has been appointed as the national co-ordinator for health and mental health on domestic violence. This was done through the joint partnership between the Home Office, NIMHE and the Modernisation Agency.

In addition, the Bristol routine antenatal pilot results have been fed into the Children's National Service Framework with recommendations for routine inquiry.

Much work has been done to make sure that everyone is aware of the insidious and destructive nature of domestic violence, and that there is proper training for those who participate as professionals in dealing with this matter, whether the police, probation officers, courts, judges and others.

The requirement which your Lordships inserted would not, if I may respectfully say so, have provided additional protection for those who may have suffered such violence. The offence of familial homicide already contains safeguards for defendants who may be vulnerable. Defendants will be liable for the defence only if they have failed to take such steps as they could reasonably have been expected to take in their particular situation.

Noble Lords will know that each situation is likely to be slightly different from another. This will mean that all their circumstances must be taken into consideration so the full circumstances of domestic violence should come out in the case both during investigation and in the court during any discussion about what reasonable steps were, in a particular circumstance, open to the defendant which he could have taken but failed to take, and matters of that sort. A further requirement on the court to take account of whether the defendant has been a victim of domestic violence or is in fear of such violence would merely make it more difficult, if I may respectfully suggest, to prosecute the offence and ensure the right charges and punishments for the person who caused the death.

5.30 p.m.

The practical effect of the requirement would be to undermine the "reasonable steps" test by implying a different test for the victims or potential victims of domestic violence. There are whole groups of people who may have very limited steps which they in their circumstances could take to protect the victim. Young or very old members of the household, or those suffering from a physical or mental disability, for example, may be limited in the steps that they can take. The court should be free to take all the circumstances of the case into account. As the offence is drafted, the steps which an individual defendant could reasonably have taken will depend on the individual circumstances of each case. If "particular regard" is to he had to domestic violence or the fear of it, what regard is to be had to all the other reasons that a defendant may have had for failing to protect the victim?

A further difficulty is that the term "domestic violence" can be interpreted widely, and the requirement would have been for the courts to take into account violence or fear of violence. That might lead us down the wrong path where a defendant might claim to be afraid of violence in order to escape the just retribution of the law for allowing the death of a child or a vulnerable adult. We do not want to discourage victims from coming forward, but nor do we want to encourage unfounded accusations of abuse to be made simply to muddy the waters in the case.

It is important that we are clear—being the victim of domestic violence does not absolve one of the responsibility to protect a child or vulnerable person who is at risk and who is depending on one for help. It is only by making sure that people face up to their responsibility that we can do justice to the vulnerable person who has died. If we make exceptions we accept that the current situation will continue, and murders will go unsolved and murderers unpunished. It is important to remember that many who are subjected to domestic violence find the courage to change and stand up to that violence only when someone who is vulnerable and whom they love very dearly is put under threat. That is usually the catalyst that causes—often the woman—to say, "I will take the violence for myself, but I absolutely refuse to allow my child to become subject to it". That is important for us to remember because there is a tension between two potentially vulnerable people.

The second part of the amendment proposed by the noble Baroness, Lady Anelay, would go even further. It mirrors an amendment that was put down in the other place and rightly rejected. It would mean that in cases where a defendant has suffered domestic violence, we would not be able to prosecute that person unless there was evidence that they had actively contributed to the death. If we knew they had actively contributed to the death, we would of course expect them to be charged with murder or manslaughter, or at least aiding and abetting murder or manslaughter. That part of the amendment would most clearly make the offence unworkable and leave the "which of you did it" problem unresolved.

Where a domestic violence victim has done all that they reasonably can to protect someone in their care, we want them to come forward and say so. And in doing so they not only allow justice to be done for the victim who has died; they allow justice to be done for the violence which they themselves have suffered, which if not tackled will probably continue. This measure will help women to make what is often the toughest decision that anyone is asked to make—the decision to speak out about violence, not only on behalf of the victim who has died, but on their own behalf. If we look at the research we find that women suffer an average of 35 assaults before they are willing to speak out. Some women speak out on the first occasion but how many times do other women suffer and remain silent?

We appreciate how difficult it may be for the defendant to talk about domestic violence and sexual abuse, especially following a trauma such as the death of a child. Such difficult circumstances were discussed at length in the other place. We believe that the guidance which will be issued to police and prosecutors when implementing this new offence and the other ongoing police and prosecutor training will create circumstances which will allow and encourage those victims to speak up at an early stage. New guidance on investigating domestic violence has been produced by the National Centre for Policing Excellence under the auspices of ACPO, backed by a modular training programme. The guidance contains advice on all stages of an investigation and emphasises that officers should be vigilant to domestic violence when investigating child and vulnerable adult abuse—and for child abuse when investigating domestic violence, given the concurrence between domestic violence and child abuse. The guidance on policing domestic violence will be launched by the Assistant Chief Constable, Jim Gamble, who is the ACPO portfolio holder, at ACPO's domestic violence conference on 10 November.

In addition, the Home Office is funding the development of a training package to promote clear and consistent sexual assault protocols and national standards for professionals coming into contact with victims of sexual assault, to be used by health professionals and police officers. In conjunction with the Magistrates' Association, the Judicial Studies Board has produced a training pack for magistrates called "Domestic Violence: An Ordinary Crime?" which is being delivered across the country.

The CPS's policy and guidance documents on domestic violence are being revised and will take account of the provisions of the Bill, including the familial homicide offence. The new, national joint Crown Prosecution Service and CENTREX training programme will be completed by the end of December 2004. Domestic violence training is also being delivered to the lawyers seconded to CPS Direct.

I hope that the House will recognise that the "reasonable steps" test already affords victims of domestic violence and other vulnerable defendants the necessary protection within the offence, and that the Government are taking steps to ensure that as the new offence is implemented there will be the opportunity for those victims to speak out.

I can reassure the House that one of the things that we have to celebrate is that, throughout the country through the work done by the national board and the local criminal justice board, domestic violence is now in its proper place. It is seen as a violent offence. That can make a real difference if one wants to reduce the number of offences committed and reduce the gap that there is at the moment between those brought to justice and those who go free. It is making a difference. However, with this offence, I urge that it is best for us to leave it to the courts to look at all the factors in the case, and not to single out certain circumstances as being more deserving of consideration than others.

Your Lordships raised very real concerns, and these were understandably echoed in the other place, but I respectfully say that we have got the balance of the offence right as it now stands. I invite your Lordships to accept this amendment.

Moved, That the House do agree with the Commons in their Amendment No. 1.—(Baroness Scotland of Asthal.)

Baroness Anelay of St Johns rose to move Amendment No. 1A, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 1, leave out "agree" and insert "disagree".

The noble Baroness said: In moving this amendment, I shall also speak to Amendments Nos. 1B, 1C and 1D, which I tabled in lieu of government Amendment No. 1. I thank the Public Bill Office for its kind assistance in giving me guidance on how to get through the various rules for consideration of Commons amendments. I could not have done without that help.

Before I address the issues raised by the amendments, it is right for me to refer briefly to the problems that noble Lords will no doubt face today as a result of the Government's handling of the Bill in another place. I make it clear that I do not in any way reflect on the admirable handling of the Bill in this House by the noble Baroness, Lady Scotland.

It is certainly an age since we last considered these matters. Indeed, the Bill left this House on 25 March and wended its way through another place in a somewhat dilatory fashion. The only speed that ever seemed to occur happened just before a Committee day, when the Government would table yet more amendments at the last minute. Because the Government have used the Bill as a skip into which to toss extra gifts from the Home Secretary, we now face a Bill that is twice as long, with regard to the text, as that first introduced into this House.

Another 19 clauses and the odd schedule or two face us today. The Government launched a consultation on some of those new clauses after the Bill had started its life here and in the full knowledge that the timing that they had set meant that this House could not consider those new clauses at any stage before the Lords consideration of the Commons amendments. That makes debate today somewhat stilted and difficult. Therefore, I hope that the Government will be able to continue the example that the Minister has just set by giving the House a full and clear explanation of some of the new clauses that we shall deal with today—although we are dealing with an old friend, in this amendment.

With regard to my amendments, I echo exactly the Minister's opening sentiments when she made it clear that none of us could tolerate the death or abuse of a child, and that when two people know who committed that crime and have a responsibility, it is right that they should pay for that responsibility by being properly prosecuted. Our only differences throughout have been on the basis of how that process should be dealt with. The Minister will recall that one of our difficulties was that we felt that the Government, in abandoning the Law Commission's proposals and coming up with something else, which seemed a bit of a mish-mash—to use unparliamentary language—had ended up satisfying nobody.

Today we return to the issue of how much recognition there should be of the vulnerability of domestic violence victims, when they find themselves accused of the new offence that the Government have created in Clauses 4 and 5, whereby someone has to show that they have taken reasonable steps to ensure that a child or vulnerable adult within their sphere of action or household has not suffered death.

As the Minister was speaking, I crossed out virtually the whole of my speech in response. The attention to detail that she gave today has met most, if not all, my objections. The Government have perhaps refined their stance—it is narrowed down to saying that they object to the fact that I am being unfair in singling out one particular group of people to be given special mention. I certainly did not apologise for that in the first instance, as I believe that victims of domestic violence are worthy of mention. But I agree with the Minister that there are difficulties when one gives special mention in court circumstances to particular groups.

I am aware that it is very difficult for amendments such as mine to go into the Bill, given that we were unable between us in Committee and Report to come to any agreement as to the definition of "domestic violence". I suspect that we shall return to that constructive debate on many future occasions, and I hope that at some time we shall resolve it between us.

I was reassured by the detailed information that the Minister gave with regard to the action that the Home Office is taking. I am always very sceptical about Home Office initiatives. For one thing, the Home Office seems to announce them about four times before actually doing them—but never mind. We have a date in November for the announcement of the police launch of guidance. That is most welcome indeed. Certainly the JSB training for magistrates will be needed before any of the provisions can be put into practice. We welcome all that good practice.

Of the two amendments that I tabled today, the first intentionally simply changes by one word my original amendment, so it will seen by the Government not to be threatening them. The second amendment, which the Minister dismissed, was tabled simply because in another place there was no time to speak to it, so the Minister had no opportunity to explain why the Government objected to it. The Minister has done so today, and I accept her explanation. Although at this stage I must formally move the amendment, I do so in the happy expectation that I shall soon withdraw it.

Moved, as an amendment to the Motion that the House do agree with the Commons in their Amendment No. 1, leave out "agree" and insert "disagree".—(Baroness Anelay of St Johns.)

Baroness Walmsley

My Lords, we on these Benches associate ourselves with the words of the noble Baroness, Lady Anelay. We all agree in this House that we totally abhor anyone who culpably does anything to kill a child or vulnerable adult. However, we very much support the spirit of Amendment No. 1C. We feel that there is a good reason for mentioning particularly the effect of domestic violence on someone who finds herself in a household where, unfortunately, a child is physically abused and killed, simply because of the very frequent correlation between domestic violence and abuse of a child and what we all know of the effect of that violence on the person—usually the mother.

I am afraid that I cannot really accept what the Minister says, that if one takes particular account of one reasonableness test, the court will not then take account of others. I believe that the court certainly would take account of others. The correlation is so high and the effect so marked in this particular case, that we feel that there is a great deal of merit in Amendment No. 1C tabled by the noble Baroness, Lady Anelay. That is why we support it.

Baroness Scotland of Asthal

My Lords, of course, I hear what the noble Baroness, Lady Walmsley, has said. I thank the noble Baroness, Lady Anelay, for the way in which she proposed her amendments, and I understand the sentiments behind them.

With regard to the point made by the noble Baroness, Lady Walmsley, the very fact that there is that marked correlation presents us with a difficulty. The noble Baroness will know that, tragically, many cases in which familial homicide takes place are situations in which violence or a high level of dysfunction have occurred in that family. From my own knowledge, I can think of few cases when that was not true. Those cases give rise to very high levels of difficulty.

I agree with the noble Baroness that a proper understanding of the nature of domestic violence, the effect that it can have on the individual and the likelihood of its debilitating that individual and preventing him from behaving as one would normally expect him to behave, has to be better understood. All the training that we are doing for practitioners should create a better understanding of those issues.

When we are dealing with a homicide, however, it cannot be right that special, overriding and particular regard must be had to the domestic violence alone, without taking into consideration similar special circumstances that may arise as a result of age, disability, lack of opportunity and matters of that sort. All those things will be taken into account. The context is almost, tragically, bound to be one of' domestic violence or dysfunction of one sort or another.

I respectfully suggest that in most cases it would simply be impossible to separate those two things. That is why we believe that particular regard would make it particularly difficult, and we do not believe that it is necessary. However, we absolutely agree with all those who said that clear guidance training—so that people understand what they are dealing with—is absolutely vital. I understand the import of the noble Baroness's comments, but I believe that we have got it about right in the drafting.

Baroness Anelay of St Johns

My Lords, that is the right place to end. We all hope that the drafting is right, although some of us are more sceptical than others. I agree with the noble Baroness, Lady Walmsley, that we would like to have achieved greater change in Clause 4. But we have gone as far as we can, and we have had what I hope are effective reassurances from the Minister today. Therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 1B not moved.]

On Question, Motion agreed to.