Alex Chalk
Main Page: Alex Chalk (Conservative - Cheltenham)Department Debates - View all Alex Chalk's debates with the Home Office
Domestic Abuse Bill (Second sitting)
Alex Chalk ExcerptsThursday 4th June 2020
(3 years, 10 months ago)
Public Bill CommitteesRead Full debate Domestic Abuse Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 4 June 2020 - (4 Jun 2020)
The Parliamentary Under-Secretary of State for Justice (Alex Chalk)
Q
Lucy Hadley: Just to be clear, it was £27 million for domestic abuse and a further £13 million for sexual violence; I think the other funding pots were for vulnerable children and for other vulnerabilities during this time. That money is absolutely essential; it is really welcome. As I mentioned before, covid-19 has hit this sector at a time when it was already really vulnerable. It has been experiencing a funding crisis for a very long time, so it is vital that the money reaches the services that are protecting and supporting some of the most vulnerable people during this period.
What our member services tell us is that one-off funding pots provide them with no security and no ability to plan ahead or retain and recruit staff for the long term. What we would really like to see underpin the Bill’s very important statutory duty on local authorities to fund support in accommodation-based services is a commitment to long-term funding, so that year on year, services or local authorities do not have to competitively bid into different funding pots. That would provide us with a framework, so that services could plan ahead, get on with doing what they do best, which is supporting vulnerable women and children, and not spend significant amounts of time on tendering processes or bids for different funding pots.
We have estimated that fully funding the Government’s statutory duty would cost £173 million a year in England; that would ensure that the national network of refuges could meet demand. As we know, we are 30% below the recommended number of bed spaces in England, and 64% of referrals to refuges are turned away, so we would like a long-term funding commitment underpin the duty.
Alex Chalk
Q
Lucy Hadley: The duty will include requirements on local authorities to report back to Government. We would really like stronger national oversight of the duty, because refuges are a national network of services. Two thirds of women in refuges are from a different local authority area, so we cannot just leave this to local authorities. We would like to see the national oversight proposed by the Ministry of Housing, Communities and Local Government clarified in the Bill. That would help with the national oversight of those different local approaches that you are talking about.
We would really like to see police and crime commissioners and other funders get much more involved in funding support for domestic abuse. That is where the commissioner’s role in mapping and monitoring service provision is really important. There are concerns that a statutory duty on accommodation-based services alone is not the same as the duties that the commissioner has.
The Chair
Order. I am afraid that brings us to the end of this very valuable session. I thank our two witnesses very much for giving evidence.
We now move on to the next session. As the Committee is aware, one of our witnesses is giving evidence down the phone, so we will pause for a minute while we make the connection.
Examination of Witnesses
Ellie Butt and Suzanne Jacob OBE gave evidence.
Peter Kyle
Q
Suzanne Jacob: I think you have heard from many of the witnesses today what an incredible ordeal family court is at the moment. Anything that can improve that process is important to do, so we at SafeLives are very supportive of the amendments that Women’s Aid has suggested, in terms of going further and getting rid of cross-examination from all parts of the court process when someone is facing an alleged abuser or ex-abuser. That is really important.
There are also a number of other suggested changes from other organisations around the role and expertise of the Children and Family Court Advisory and Support Service, for example, which we think are important. There is currently something innately adversarial about the family court process, which makes it an incredibly painful thing for both adults and children to go through. Many, many women who go through the family court process would tell you that they would rather they had just stayed with the abuser rather than go through family court, which is a horrible indictment of our current processes.
Alex Chalk
Q
Ellie Butt: Yes, absolutely.
Alex Chalk
Q
Ellie Butt: I would agree with that. Some of the measures in the Bill have the potential to have a positive impact, but there are some significant problems that need ironing out for them to achieve that potential, particularly the duty to assess need and provide for domestic abuse safe accommodation. There are some big questions about that, one of which is the funding—it really needs to be fully funded to work. Colleagues at Women’s Aid have estimated that that is about £175 million a year. Then what happens to those services that do not fall within that duty? There is a real risk that we could lose those, which is exactly what we do not want.
The Bill has been criticised in places for being too focused on criminal justice. While I think a full range of reforms is needed in all the different areas of life that affect survivors of domestic abuse, there are particular changes that we can make to the criminal law that would increase protection for survivors. Something we at Refuge work on a lot is abuse through technology. There is a big gap in the criminal law at the moment around threats to share intimate images, and survivors do not have recourse. It is a hugely powerful tool of coercion and control, particularly post separation, and there is a real gap there that the Bill could address quite straightforwardly. There is a lot in there, and I take your point, but I also think we need to take the opportunity we have now and make it as good as it can be.
Alex Chalk
Q
Ellie Butt: Yes, she is very welcome.
Alex Chalk
Is she welcome to come in?
Ellie Butt: Of course. Well, not right now, because we are all working from home—but absolutely. Minister Victoria Atkins has visited the helpline. The domestic abuse commissioner would be more than welcome to do that.
Alex Chalk
Q
Ellie Butt: Absolutely. I am sure that she can and, at the same time, draw attention to what is not being done and where gaps are. You will have heard already that domestic abuse services are largely run on a shoestring. I would say this, but I think Refuge does brilliant work and lots of the organisations in the sector do brilliant work, but there is absolutely room for that to be scrutinised, for improvements to be made where they need to be made, and for gaps to be filled where they are not funded and there is unmet need.
Liz Twist
Q
Ellie Butt: We support the argument that children need to be in the definition of domestic abuse. Children are victims in their own right; they are never just witnesses. There are some small improvements being made in understanding that, but it needs to go much further.
One thing that struck me when I first started working for Refuge and has never stopped is that on any given day, half the people in our refuges—we provide around 48 refuges—will be children, yet we receive little to no funding to do work and support them directly; we fundraise for that. That is not right. These are hugely vulnerable children who have experienced the trauma of growing up in a house with one parent who is abusive. We need to do so much more for children, including providing specialist services for them.
The Chair
Thank you. So that people can indicate, if they are not on the list, I am now going to call Minister Chalk, then I have Mike Wood, Christine Jardine, Peter Kyle and Liz Twist.
Alex Chalk
Q
Dame Vera Baird: Yes.
Alex Chalk
Q
Dame Vera Baird: Yes, of course.
Alex Chalk
Q
Dame Vera Baird: Of course it is, and the interaction between a victim and a defendant is often present in a range of material ways.
Alex Chalk
Q
Dame Vera Baird: It seems to me to strike the right balance. There is often the need for an urgent move to be made to remove the risk, and that seems quite right to me. I lament very strongly the loss of pre-trial bail conditions. They are a simpler way to do it than a notice like this, so please do restore pre-trial bail to the police.
Alex Chalk
Q
The final thing I want to ask about briefly is special measures directions and the ability for people to give their best evidence. Do you welcome what is in the Bill to allow vulnerable people to feel more comfortable about the court process, and to do themselves justice when they are before a court speaking about something that may be very traumatic for them?
Dame Vera Baird: But it does not go nearly far enough, Minister. You have extended special measures in criminal proceedings so that they are automatically available for a domestic abuse victim—absolutely excellent —but in family proceedings, and indeed in civil proceedings, people who are vulnerable or intimidated are just as vulnerable or intimidated as they are in criminal proceedings, and just as much in need of giving their best evidence. I really have no understanding of why you do not just extend special measures to all courts. They are subject to proper identification of vulnerability and a process that follows, and the judiciary have the final say. It seems to me that that is far and away the best thing to do. It is very straightforward and simple, and can give people that advanced assurance that they are going to be able to give their evidence in a protected way. That is obviously what you are aiming for by extending them to domestic abuse victims in criminal cases.
Alex Chalk
Main Page: Alex Chalk (Conservative - Cheltenham)Department Debates - View all Alex Chalk's debates with the Home Office
Domestic Abuse Bill (Third sitting)
Alex Chalk ExcerptsTuesday 9th June 2020
(3 years, 10 months ago)
Public Bill CommitteesRead Full debate Domestic Abuse Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 9 June 2020 - (9 Jun 2020)
Jess Phillips
We are now moving on from the definition to talk about exactly who we mean by “connected parties”. The amendment is a response to calls from people with disabilities and organisations within the disability rights sector that have been in touch with us to express their concerns about whether they are seen in the Bill.
As we said in the debate about whether children should be in the Bill, we recognise that there is a need for much more detailed and in-depth guidance. In relation to domestic abuse, we are potentially missing some real opportunities that genuinely need to be responded to with law—the courts of our land—but are currently not covered by the area of “connected parties”. The issue is those whose connection to a person is that they are their carer. We are not necessarily talking about paid carers.
Carers UK announced yesterday that 4.5 million people have become unpaid carers during the coronavirus crisis, so it is not a minority issue or something that happens only in certain areas. People who very much rely on others for their care might not currently be covered by what is outlined in the Bill as a connected party. They might never have been married or had a civil partnership. They might never have been divorced, which got a bit easier yesterday, and they might not be related. I should tell my husband that it got easier to get divorced yesterday—
The Parliamentary Under-Secretary of State for Justice (Alex Chalk)
He has been in touch already. [Laughter.]
Jess Phillips
The reality is that for lots of people a connected party to their wellbeing, their life, or what people would call their family, is a bit like in working class communities, although I am sure it happens in others: a woman lives down the road and her husband borrows somebody’s dad’s ladder, so they call her auntie, even though she is absolutely no relation whatever. We have to understand that in lots of people’s lives, connected people might not be what we would naturally recognise.
On the definition of “personally connected”, I want the Bill to reflect the realities of all domestic abuse victims. I want all victims to be able to access services, justice and support when needed. I think we would all agree that no victim should be left behind. We are taking our time—my gosh, it is quite a lot of time—to get the Bill right and see it through. It will never be perfect, but we should make every effort to make it as perfect as it can be.
Clause 2 defines what it means to be personally connected. In other words, the clause sets out the relationship between a victim and a perpetrator that comes under the definition of domestic abuse. The list includes what we would typically expect: as I have already laid out, those in intimate personal relationships with each other. However, my concern is that the clause, as it stands, fails to recognise the lived experiences of disabled victims of domestic abuse, who are among the most vulnerable. Their abuse often goes unnoticed.
The crime survey for England and Wales found that individuals with long-term illness or disability were more likely to be victims of domestic abuse. A 2016 report on intimate personal violence by the Office for National Statistics found that 16% of women with long-term illness or disability had experienced domestic abuse. Disabled victims are also more likely to experience domestic abuse for a longer period of time: 3.3 years, on average, compared with 2.3 years for non-disabled victims. With that in mind, I want the Bill to make it easier for disabled victims of domestic abuse to be recognised. To do that, we have to accept the reality of disabled people’s lives, where significant relationships are perhaps different from those of a non-disabled person with an unpaid carer.
Ruth Bashall, the chief executive of Stay Safe East, said that disabled people
“have emotionally intimate relationships with the people who, in very large inverted commas, ‘care’ for us, and the experience of abuse by those people is exactly the same as domestic abuse: the coercive control, the violence, the financial abuse and so on.”
It is important that we recognise, based on the evidence presented to the Committee, that a large number of disabled people will have no relationship with anyone except for the people who “care” for them. This type of close relationship can easily take on a problematic power dynamic that closely mirrors familial or intimate partner violence. As I have said, we can see how that might occur. I have been doing shopping and taking money from people who needed me to go to the shops for them. It would, if I were that way inclined, not be particularly difficult to build a relationship, a rapport and a need from me in that person that I could then exploit over a number of years. I would not do that, obviously.
In response to the Joint Committee’s report, the Government said that they did not propose to review the personally connected clause at the current time. Paragraph 60 of the their response states:
“If they are personally connected to their carer, this will be covered by our definition of domestic abuse. Otherwise, abuse of disabled people by their carers is already covered by existing legislation.”
What we heard from Saliha in the evidence session last Thursday was that, as a disabled victim of domestic abuse, she often finds that she is not understood by one or the other. As I have said this morning, her experience as a victim of gender-based violence or domestic abuse is often not expected, dealt with or understood by disability agencies, and vice versa: as a disabled person, she finds getting access to mainstream domestic violence services difficult.
We have to be very careful, when writing this Bill, not to ignore those intersecting groups of people and just say, “Well, there’s already existing legislation that would cover it.” It would not cover it from the point of view of domestic abuse because, as we all know, that has been lacking from our laws, and that is what we are here to try to improve.
I urge the Government to rethink their position for a number of reasons. First, it is not appropriate to say that abuse of disabled people by their carers is already covered by different legislation. This is a Domestic Abuse Bill for all victims. Therefore, if the abuse of a disabled person meets the definition of domestic abuse—if it is financially controlling, or if it involves sexual, economic or psychological abuse—but it is not by somebody in one of the connected party groups, that disabled person would not be left with many places to turn to take the case of domestic abuse to court or wherever.
If a disabled person meets the definition, that ought to be recognised and covered by this legislation, not something else. We cannot just keep saying, “Well, if you’re in this group you’re covered by this, and if you’re in this group you’re covered by this.” I would have thought that we would want to make a Domestic Abuse Bill that covers everybody.
I would go even further, and suggest that the Government’s response is a bit dismissive and fails to recognise the gender-based nature of domestic abuse solely because the victim is disabled. We cannot have domestic abuse covered by other legislation just because the person is disabled.
Secondly, while I appreciate that section 42 of the Care Act 2014 places a duty on local authorities to carry out safeguarding inquiries if they suspect abuse, that is no reason why disabled victims should not be represented in this Bill. Furthermore, there is evidence to suggest that local authorities are failing even to identify victims, even those who are at highest risk. Between 2015 and 2016, none of the 925 referrals of disabled victims to domestic abuse services were from adult safeguarding—zero.
I would be so bold as to bet that every piece of single adult safeguarding guidance in every adult safeguarding group that exists in every single local authority has domestic abuse written within it somewhere, and says that the vulnerable adults can be victims of domestic abuse. In all my years, I have literally never once referred a victim of domestic abuse to adult social care, because that is not what adult social care is for.
If I were to ring up my local authority or, I would even wager, Westminster City Council and say, “I’ve got this woman and she’s a victim of domestic abuse, and I see that that’s written into your adult social care board, so can I get a social worker out to see her later? She’s suffered some violence over the years and a bit of emotional abuse recently, the kids are getting a bit—”, the idea that an adult social worker would go out and see that victim is for the birds. The fact that zero referrals —none—to domestic abuse services of disabled women came from adult social care speaks to the evidence.
That is why we are proposing to amend the Bill to include carers in the definition of “personally connected”. Including carers will raise awareness and, I hope, help the police and local authorities to adopt better practices—for example, on something as simple as questioning a victim separately from the carer, which I imagine happens quite rarely. It is vital that those sorts of policies are put in place. The amendment provides an opportunity for us to tackle the profound inequalities faced by disabled survivors.
Stay Safe East sent a number of case studies, such as this one:
“A disabled woman was targeted by a man who was homeless. He gradually gained her trust and over a period of months, she began to see him as her friend, then as ‘better family than my own’. He assisted her first with shopping (while taking her money), then with household tasks and eventually with personal care. His controlling and intimidating behaviour towards the woman’s carers led them to withdraw the support, leaving him in complete control of the disabled woman’s life.”
To anyone who has ever worked in domestic abuse services, that sounds exactly like what a domestic violence perpetrator does—isolate, control and ensure there is no one else there to turn to. The quote continues:
“There was physical, sexual, emotional and financial abuse. The man then brought his friends into the woman’s home; they further intimidated her. When she was eventually able to seek help, her health had deteriorated due to neglect. Whilst the actions of the man and his friends could be described as ‘cuckooing’ (a term used by the police to describe taking over a person’s home for criminal or other purposes), they also constitute domestic abuse: the woman had a ‘close personal connection’ with the abuser which left her dependent on him and open to abuse.”
I am sure the Minister would say that the woman would have been able to get support from this service or that service, but why should she not be able to access direct support from domestic abuse services? Why would we not want to compel councils, for example, to commission services specifically for victims of domestic abuse who are disabled? Should the police take that case, on different grounds, using different legislation from a different law —[Interruption.] The very polite Member for Cheltenham is leaving; take care. It is a lovely constituency.
It is not fair to say that the woman had not been a victim of domestic abuse. It is not fair that she would not then be entered into the system that would allow her to access the specialist support that comes with understanding control, power and her own sense of worth in the world.
Another case study notes:
“A neighbour befriended a woman with learning disabilities, became her carer and provided her with support. He then demanded sex and verbally abused her because she would not have sex with him.”
These women experienced abuse by people who had in effect become their family, and with whom they had a close personal connection. They experienced this abuse as domestic abuse. In lots of the cases that Stay Safe East sent, when these women sought help, they were often refused services as victims of domestic abuse—they did not fit the current definition, and they suffered for months before being able to access the right, more specialist support.
Disabled people face huge barriers in getting support from the services that are available today and that we all hope to see improved. They still find it very difficult to access domestic abuse services; by and large, only one or two beds available in an area will be accessible.
With regard to specialism in learning disability support, for example: with the greatest will in the world, people like me and the women who work in the refuge where I worked are not specialists in dealing with people with learning disabilities. We did not have specialist training. With 19 women and 28 kids in the building each night, and people coming and going because of housing emergencies, where is the level of specialism that might be needed in our refuge for somebody with severe autism? Everybody does their best, but the specialism that can be found for disabled victims is often provided only by disabled voluntary sector providers, who do not deal with the manifest issue of recovering from the trauma of domestic abuse. We have to find a way to make sure that if a disabled person is the victim of domestic abuse, they get the same service as they would if they were not disabled—I am not saying that it is perfect for everyone, by any means.
Again, I cannot help but go back to the evidence from the victim Sal. She told the Committee that that was exactly what had happened to her: her parents had abused her, stating that she would never be able to do anything or go anywhere, and she had to allow them to control her because as a disabled woman in society she would not be able to cope. We have to hear her voice and make sure that we make the Bill as inclusive as possible, so that it can help as many people as possible.
Domestic Abuse Bill (Sixth sitting) Debate
Full Debate: Read Full DebateDepartment: Ministry of Justice
Alex Chalk
Main Page: Alex Chalk (Conservative - Cheltenham)Department Debates - View all Alex Chalk's debates with the Ministry of Justice
Domestic Abuse Bill (Sixth sitting)
Alex Chalk ExcerptsWednesday 10th June 2020
(3 years, 10 months ago)
Public Bill CommitteesRead Full debate Domestic Abuse Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 10 June 2020 - (10 Jun 2020)
The Parliamentary Under-Secretary of State for Justice (Alex Chalk)
Thank you very much.
Alex Chalk
I am glad that all hon. Members are taking this seriously. It is a pleasure to serve under your expert chairmanship, Mr Bone, and to be one of the Ministers leading on this Bill. When I was a Back Bencher, together with another Member of Parliament, I ended up doing some work on stalking laws to try to increase the maximum sentence for stalking, so if I could have chosen any Bill to be a Minister on, it would have been this one. It is a real pleasure to be here. I am delighted to see my shadow, the hon. Member for Hove, and the hon. Member for Birmingham, Yardley. We share a common endeavour in wanting to make this the best piece of legislation.
Clause 27 is a procedural clause that sets out how long a person can be held on remand if they are arrested for breach of a police-issued domestic abuse protection notice and the magistrates court adjourns that hearing. A magistrates court can normally remand a person for up to eight days, but clause 27 sets out that the court can also remand the person if a medical report is required. In such cases, a person can be remanded for only up to three weeks at a time if they are remanded in custody, or up to four weeks at a time if they are remanded on bail.
If the person is suffering from a mental disorder and a report is needed on their mental condition, they may be remanded to hospital so that such a report can be produced. That can be for up to a maximum of 28 days at a time or a total of 12 weeks if there are multiple stays in hospital.
If the court decides to remand a person on bail, it can attach any conditions necessary to prevent the person from obstructing the course of justice—for example, interfering with witnesses. These are standard provisions that largely replicate the approach taken for remand following breaches of other types of protective orders, such as non-molestation orders, occupation orders and antisocial behaviour injunctions.
Question put and agreed to.
Clause 27 accordingly ordered to stand part of the Bill.
Clause 28
Domestic abuse protection orders otherwise than on application
Question proposed, That the clause stand part of the Bill.
Alex Chalk
Clause 28 makes provision for the court to make a domestic abuse protection order of its own volition during other ongoing proceedings that do not have to be domestic abuse-related. It is an important provision that shows the flexibility of the legislation.
The family court will have the power to do so in cases where both the victim and the alleged abuser are parties to the proceedings, which means that the family court will be able to make an order in other ongoing proceedings where the court becomes aware that an order would be beneficial. For example, if an issue of domestic abuse is raised during ongoing child contact proceedings, the victim would not have to make a separate application to the court to obtain an order. Instead, the court can make an order of its own volition as it sees necessary. That is an important element of flexibility, and indeed robustness, built into the legislation.
In criminal courts—I am conscious that we have expertise here in the form of a former magistrate, which is excellent—as with the current restraining order, the court will be able to make a domestic abuse protection order on either conviction or acquittal. To that extent it is similar to a restraining order, which can also apply in the event of an acquittal. Importantly, however, the DAPO is an improvement on the current restraining order because it can impose positive requirements as well as prohibitions on the perpetrator. All Committee members will recognise that, although we of course want to protect victims first and foremost, we also want to stop further abuse happening, so anything that can be done to ensure that people are rehabilitated and see the error of their ways is a positive thing for society as well as, of course, for the victim.
In the case of a conviction, that will allow the court to, for example, set an order with a longer duration than the sentence passed, to ensure that the victim receives the protection they need beyond the length of their sentence. In the case of an acquittal, it will ensure that the victim still receives protection if the court thinks that is necessary.
The court will also be able to make a DAPO of its own volition during other ongoing civil proceedings where both the victim and the alleged abuser are parties to the proceedings.
We will specify the type of civil proceedings in regulations, but initially we expect it to cover civil proceedings in which issues of domestic abuse are most likely to be raised or revealed in evidence, such as housing-related proceedings.
Jess Phillips
I feel that, now Minister Chalk is on his feet, I should have some things to say; I do not want to leave him out.
I cannot say how important the idea that the court can put in place an order on acquittal in these circumstances is to somebody like me, who has watched many cases fall apart over the years. I am always slightly jealous of the Scottish system of not proven, because in too many cases in the area of violence against women and girls, it may well be that the balance of evidence needed cannot be provided either at the magistrates court or at the Crown court in these circumstances, but there is still gross fear among all involved that the fact that it is not proven does not mean that it did not happen.
The idea that, on acquittal, courts could put these orders in place is a huge step forward, ideologically and politically speaking. My concern—I am almost doing myself an injustice on what I am going to say about some of the amendments later—is what the Ministry of Justice foresees as a review mechanism to ensure where this is going, how it is working and how regularly the family courts are dishing out such orders.
If everybody was like Essex police force, I would be jumping for joy. I do not hope for this, but maybe one day somebody will perpetrate a crime against me in Essex and I will see how brilliant the force is at orders, as we heard from the evidence earlier. What worries me is whose responsibility it will be, after a year or two years—even after the pilot scheme—between the Ministry of Justice, the head of the family courts structure and the chief prosecutor at the head of the Crown Prosecution Service, to see how readily these orders are being used in our courts.
I have already said this once today, but often people like me put in annoying questions to people like the Minister, such as, “Can you tell me how many times this has been used in these circumstances?”, and very often the answer that we receive back is, “We do not collect this data nationally”, or, “We do not hold this data in the Department.” I want a sense of how we are going to monitor this, because while I know this just looks like words on paper, to people like me it is deeply, deeply important that the courts could take this role.
However, I have seen too many times that, even the powers that the courts have—certainly the family courts, which no doubt we will come on to tomorrow—are not always used wisely and well, so I want an understanding of how specifically we are going to monitor the use of the courts giving out the orders, which is new in this instance. How are we going to test that it is working and try to improve its use? I would be very interested in even just a basic data gathering each year of how many were done on acquittal, how many were done on conviction and how many were done in family court proceedings where both parties were part of proceedings.
With regard to the family court, and in fact in all these circumstances—whether it is a notice or an order; whether a police officer has to make a decision there on the doorstep or we are talking about orders—how are we going to deal with some of the “he said, she said”? I have seen an awful lot of counter-claims in the family courts. Often somebody will talk about being victimised as part of domestic abuse, and it becomes: “Well, actually, she was domestically abusing me,” or, “He was domestically abusing me.” I wonder whether any thought has been given to how, in giving out DAPOs in a family court, we do not end up with potentially two people, both with an order against each other—or maybe that could happen.
Alex Chalk
I will say a couple of things. First, I completely agree with the hon. Lady’s observation that the powers are very stark but very welcome. It is important to note why they are in place. It is not uncommon that cases cannot necessarily be proven to the criminal standard: beyond reasonable doubt. The tribunal has to be satisfied that it is sure; however, there can be serious lingering concerns that, were it to apply a test of the balance of probabilities, it would have no difficulty in finding that the abuse had taken place.
It is to cater for those circumstances that the courts can now impose really quite robust measures to ensure the protection of complainants and the rehabilitation of perpetrators. They are important powers, and benches and courts will want to exercise them wisely. Inevitably, they apply to individuals who have not been convicted of any offence. The courts will therefore need to tread carefully to ensure that justice is done, but they have shown themselves well able to do that for many centuries.
Peter Kyle
My hon. Friend the Member for Birmingham, Yardley made the point very well that, for some of the issues that we are tackling with the legislation, the powers already existed in other pieces of legislation, but the courts, in their conservatism, refused to exercise them. As my hon. Friend asked, will the Minister ensure that his Department gives the right steer to the courts, which the president of the family division can translate into something that is actionable on the front line in family courts up and down the country?
Alex Chalk
The hon. Gentleman makes an important point. Ultimately, he will understand why I say that a very proper distinction exists between the legislature, the Executive and the judiciary. The judiciary are proudly and profoundly independent, and they will take their course and impose the orders if they think that it is in in the interest of justice to do so. Of course, we must ensure that courts are properly aware of the powers available to them. I have no doubt that the president of the family division, and indeed the Lord Chief Justice in the criminal sphere, will use their good offices to ensure that that takes place.
On the point that the hon. Member for Birmingham, Yardley made about whether we can look after the event to check that the powers are being used, first, there is, as she knows, the issue of the pilot. That provides a significant period to establish whether the orders are being taken up. Secondly, the Office for National Statistics has an annual publication of DA statistics that includes the different orders, so we will be able to get a sense of the extent to which they are being applied.
I hope that this will not sound overly fastidious, but one should not necessarily automatically read reluctance into a low level of use in one part of the country compared with others. It may be, because each case turns on the facts, that it was not appropriate in those circumstances. However, as a general observation, we will keep an eye on it, and there will be data on which the hon. Lady will no doubt robustly hold the Government to account. I beg to move.
Question put and agreed to.
Clause 28 accordingly ordered to stand part of the Bill.
The Chair
For the benefit of the Committee, and perhaps for the Minister, I should say that you do not need to beg to move stand part clauses, because they are already in the Bill; the only thing that you have to move are the amendments—but you, sir, are one of many Ministers who make that mistake.
Clause 29
Conditions for making an order
Question proposed, That the clause stand part of the Bill.
Alex Chalk
Thank you, Mr Bone—that’s my career over.
Clause 29 sets out two conditions that must be met before the court may make a domestic abuse protection order. The first is that the court must be satisfied—on the balance of probability, as I have indicated—that the person has been abusive towards the victim. Our intention with the DAPO is to bring together the strongest elements of the existing protective order regime.
One of the key benefits of existing civil protection orders is that if a victim who needs protection from abuse is not able to gather sufficient evidence to meet a criminal standard of proof, they can still apply to the courts for protection. We have ensured that that will be the case for the DAPO as well by explicitly providing for a civil standard of proof: on the balance of probabilities. The Joint Committee in examining the draft Bill were content with the application of the civil standard.
In the Bill, we have made it clear that domestic abuse includes many different types of abusive behaviour, as we have heard, including physical and sexual, as well as controlling, economic and emotional abuse. That is a novel and important departure. That means the court will be able to take into account all the abuse present in the case when deciding whether to make an order.
That is a step forward compared to current domestic violence protection orders, which require either violence or the threat of violence before a notice can be issued or an order made; we understand that this is currently interpreted to mean physical violence only. Members of the Committee will immediately see the extent to which the ambit has been broadened.
The second condition is that the court must be satisfied that it is necessary and proportionate to make the order to protect the victims of domestic abuse or those at risk of domestic abuse. Once the threshold is met, the court may impose only those requirements that it considers are necessary to protect the victim. Incidentally, that necessary threshold is important in ensuring that the measure is compliant with our responsibilities under the European convention on human rights.
The clause also specifies that an order can be made only against a person who is 18 or over. We recognise that younger people can be involved in abusive relationships, which is why we have included 16 and 17-year-olds in the new statutory definition of domestic abuse. There is, however, a balance to strike. We do not want to rush to criminalise young people, in line with our youth justice guidelines, as DAPOs carry a criminal penalty for breach, punishable by up to five years’ imprisonment or a fine, or both.
Pausing on that, it is important to recognise that DAPOs will be imposed on somebody who is not guilty of any crime, yet breach of them is punishable by imprisonment: these are robust powers, and that is why we have circumscribed them carefully in the way that we have. I do not need to beg to move, so I shall just sit down.
Question put and agreed to.
Clause 29 accordingly ordered to stand part of the Bill.
Clause 30
Matters to be considered before making an order
Question proposed, That the clause stand part of the Bill.
Alex Chalk
This clause concerns matters to be considered before making an order. Similar to the provisions at clause 21 in relation to a notice, clause 30 sets up particular matters, which the court must consider before making a domestic abuse protection order.
First, the court must consider the welfare of any person under the age of 18, whose interests the court considers relevant, in order to ensure that any safeguarding concerns can be appropriately addressed. The person does not have to be personally connected to the perpetrator and could, therefore, for example, be the victim’s child from a previous relationship.
The court must also consider the opinion of the victim as to whether the order should be made. As set out, however, in subsection (3), the court does not have to obtain the victim’s consent in order to make an order. We have already discussed why that is desirable. It enables the court to protect victims who may be coerced into withholding their consent, or who are fearful of the consequences should they appear to be supporting action against the perpetrator.
Where the order includes conditions in relation to premises lived in by the victim, the court must consider the opinion of any other person who lives in the premises and is personally connected to the victim or, if the perpetrator also lives in the premises, to the perpetrator. For example, if the perpetrator has caring responsibilities for a family member, the court would need to consider the family member’s opinion on the making of an order excluding the perpetrator from the premises.
Jess Phillips
I wonder whether the Government foresee a child being included in that instance. If it was an elderly relative, that is reasonable. But are we saying here—or perhaps it will be in the much-awaited guidance—that if a child was living in the house, their opinion might be sought?
Alex Chalk
Yes, I think it would be and I think that is appropriate. One thing that certainly the criminal law has done over the last 20 years is start to recognise that people under the age of 18 have views that are sometimes worth hearing. In the past, they were almost kept out of court, but now of course we try to facilitate their giving evidence. I would imagine that that would be the case in these circumstances and that a court would want to hear that.
It will be for the court to weigh up the different factors to come to its decision on whether a DAPO is necessary and proportionate in order to protect the victim from domestic abuse or the risk of it.
Question put and agreed to.
Clause 30 accordingly ordered to stand part of the Bill.
Clause 31
Making of orders without notice
Question proposed, That the clause stand part of the Bill.
Alex Chalk
Clause 31 makes provisions for making an order without giving prior notice to the person who is alleged to have been abusive. These are standard provisions and consistent with existing protection orders. Before making an order, a court would normally inform the relevant person of the hearing taking place. However, as with existing orders, we recognise that in some cases an order may be urgently required. Clause 31 enables the court to make an order without notice in those cases where it is just and convenient to do so.
When deciding whether to make an order without notice, a court must first consider the risk to the victim if the order is not made immediately and the risk that the victim would be deterred from pursuing the application if the order were not made immediately. This measure also allows the court to take action in cases where it believes that the person alleged to have been abusive is aware of the proceedings but deliberately evading service, in order to ensure that the victim can still receive the protection that they need. In other words, it provides scope to the court, if it thinks that an individual is seeking to frustrate justice, simply to go ahead in the normal way and ensure that the protection is put in place.
If an order is made without notice, the court must schedule a return hearing as soon as is just and convenient, to allow the affected person to make representations about the order. That is in line with the usual procedures for current protective orders, and you may feel, Mr Bone, that it is in the interests of justice. If an order is made without notice, the individual who is subject to it should have the opportunity to make representations as soon as is just and convenient.
It is worth mentioning that subsection (2) of clause 34, which makes further provision about electronic monitoring requirements, provides that an electronic monitoring or tagging requirement may not be imposed on a person in their absence. I trust that the reason for that is obvious, but if anyone wants to ask me about it, they can.
Question put and agreed to.
Clause 31 accordingly ordered to stand part of the Bill.
Clause 32
Provision that may be made by orders
Question proposed, That the clause stand part of the Bill.
Alex Chalk
Clause 32 concerns provision that may be made by orders. The Committee will recall that we heard earlier about provision that may be made by notices. This is the twin in respect of orders.
Clause 32 provides courts with the flexibility to impose in respect of a DAPO not only restrictions but positive requirements, depending on what is necessary in each case to protect the victim from all forms of abusive behaviour. Subsections (4) to (6) provide examples of the kinds of conditions that could be imposed by a DAPO, but subsection (3) expressly provides that those are not exhaustive.
It is up to the court carefully to tailor the conditions of the DAPO to meet the needs of the individual victim and take into account the behaviour of the perpetrator. The reason is that circumstances are varied and it is important to ensure that the court considers each case on its merits, and the circumstances as they apply, and ensures that the conditions are tailored accordingly.
Jess Phillips
Specifically with regard to what we were discussing earlier in relation to workplaces, does the Minister foresee that that could be one of those issues that could be discussed in the court—that there would be an allowance for the workplace to be included, with leave of the court?
Alex Chalk
Absolutely; I do not see why not at all. In fact, when the hon. Lady was making those points in respect of notices, I did fast-forward to clause 32, and it is deliberately broadly cast. Clause 32(2) says:
“The court must, in particular, consider what requirements (if any) may be necessary to protect the person for whose protection the order is made from different kinds of abusive behaviour.”
Jess Phillips
It is very pleasing to hear that—it is reassuring. I urge that the point is made explicitly in the guidance that will go along with all the orders. I wanted that on the public record.
Alex Chalk
It may be in the guidance but, I respectfully suggest, does not necessarily need to be in it. When a court comes to consider what it will or will not do, it may look at this measure and say, “Are we precluded from banning him from her workplace? If the answer to that is no, we will go ahead and do it, regardless of what is in the guidance.” It may be that it will be in there anyway, but I am confident that, as the Bill is set out, it is drafted sufficiently widely—deliberately so—for the courts to see their way to do justice and impose protections as they see fit.
Peter Kyle
One benefit of this approach to legislation is that it allows scope for creativity in the individual court to tailor to a specific circumstance that might not be predictable. In such circumstances, how can other courts learn from that innovation? It is obviously the responsibility of the judiciary, including the president of the family division of the High Court, but we have learnt from bitter experience that some courts and judges are almost impervious to change—I speak with respect to the former one before us. How does the Department seek to use innovation on the frontline in family courts to ensure that family courts in other parts of the country benefit?
Alex Chalk
May I gently push back on that? I understand the hon. Gentleman’s observations about the need to ensure that one modernises and so on, but if we think for a second about the sorts of conditions that the court is likely to impose, those will be along the lines of conditions routinely imposed in respect of bail, for example—not to contact an individual, not to go within a certain a postcode, not to go to a school, not to visit the home or not to contact relatives directly or indirectly.
I am confident that the courts will be well able to impose those conditions without requiring any particular leap of imagination. They will welcome and embrace these powers, which are deliberately drawn widely, so that the courts may apply their everyday experience of the world to understanding what is required to do justice and to provide protection in an individual case.
On the issue of keeping an eye on this, there are data and statistics, which will be published in due course. It will be open to hon. Members, the domestic abuse commissioner and the Victims’ Commissioner to keep a close weather eye on that. I know that the hon. Member for Hove will do precisely that.
Question put and agreed to.
Clause 32 accordingly ordered to stand part of the Bill.
Clause 33
Further provision about requirements that may be imposed by orders
Jess Phillips
I beg to move amendment 51, in clause 33, page 21, line 3, leave out subsection (2) and insert—
“(2) A domestic abuse protection order that imposes a requirement to do something on a person (“P”) must—
(a) specify the person who is to be responsible for supervising compliance with that requirement; and
(b) meet the standard published by the Home Secretary for domestic abuse behaviour interventions, if the requirement is to attend an intervention specifically designed to address the use of abusive behaviour.”
Alex Chalk
It is a pleasure to follow my hon. Friend’s contribution, and I entirely agree with its content. I think there is agreement across the House that we want credibility and consistency for perpetrator programmes to ensure that individuals who have been led into error by their behaviour do not continue to do so, at dramatic cost to both individuals and society more widely. We are absolutely clear that if we do not hold perpetrators to account for their actions, we will not be able to tackle the root cause of domestic abuse. We agree that it is essential for any perpetrator programme imposed as part of a DAPO to provide a high-quality, safe and effective intervention.
Although we support the aim of the amendments, we respectfully think that there is a better way of achieving the end result that the hon. Member for Birmingham, Yardley seeks. At the heart of our response is the idea that quality assurance needs to be looked at in the round, in relation to all domestic abuse perpetrator programmes, not just those imposed by a DAPO, as is provided for in the amendments. Before I develop that point, I will say that consistency and credibility are important not just for the perpetrator or the victim, but for the courts themselves, so that they have confidence that when they impose orders, they will get results. Also, courts may not feel the need to lock someone up if they can reach for an order—whether a DAPO or a community order—in which they have confidence.
It is really important to note that not all domestic abuse perpetrator programmes come via a DAPO. First, a family court could make a referral into a perpetrator programme by, for example, imposing an activity, direction or condition in connection with a child arrangement order. Secondly, the police, probation service and local authorities could work together to impose a programme as part of an integrated offender management programme. Thirdly, there could even be self-referral: there may be individuals who have had a long, hard look at their behaviour and thought, “I need to address this. I am, off my own bat, going to seek a referral into such a programme.” Respect runs a helpline offering information and advice to people who have perpetrated abuse and want to stop.
I am at pains to emphasise that while we want to make sure any programmes delivered via the gateway of a DAPO achieve high standards and are consistent and credible, we should not forget that other programmes are being delivered outwith DAPOs, via different gateways, and we want to ensure that those programmes meet the same standard. Otherwise, we would end up in the perverse and unsatisfactory situation of having a DAPO gateway programme that is great, but other ones that are not.
We propose to take this work forward by using some of the £10 million announced by the Chancellor in this year’s Budget for the development of new interventions for domestic abuse perpetrators. We will work with the domestic abuse commissioner and specialist domestic abuse organisations—along the lines that the hon. Member for Birmingham, Yardley indicated—to undertake mapping and evaluation of the range of perpetrator interventions currently available, and explore what works for different models of quality assurance for domestic abuse perpetrator behaviour change programmes.
By the way, there is already a wealth of promising evidence that we can draw on as part of this work. For example, the Government have already invested through the police transformation fund in a number of innovative approaches to managing perpetrators, including the Drive project led by Respect and SafeLives, to which the hon. Member for Birmingham, Yardley alluded, as well as the whole-system approach to domestic abuse in Northumbria and the Women’s Aid “Make a Change” programme. There is a lot out there, and we need to draw the threads together.
We continue to support the important work of Respect, which is helping to ensure through its service standards that programmes targeted at a range of perpetrators are delivered safely and effectively. We will also draw on the ongoing work of the Ministry of Justice’s correctional services accreditation and advice panel, which accredits programmes for perpetrators who have been convicted of an offence.
Alex Chalk
It is important to note that clause 66 contains important provisions that allow for exactly what we want to achieve.
Turning to new clause 27 on the perpetrator strategy, I reassure the hon. Member for Birmingham, Yardley that we have heard the call to action for a perpetrator strategy. We commend the work of the Drive partnership of Respect, SafeLifes and Social Finance, who have done so much to change the narrative and to shift the focus from, “Why doesn’t she leave?”, to, “Why doesn’t he stop?”.
I want to be absolutely clear that we fully recognise the need for increased focus on perpetrators and are ambitious in our aim to transform the response to those who have caused this appalling harm, but to have an increased focus on tackling perpetrators, we do not need to make inflexible provision in the Bill for a one-off strategy. We have made clear our commitment to this work through our allocation of £10 million in this year’s Budget for preventive work with perpetrators. Over the past three years, we have funded a range of innovative approaches to working with perpetrators and we are beginning to build a solid evidence base on what works through some of the programmes I have mentioned: Drive, a whole-system approach to tackling domestic abuse, and “Make a Change”.
We have undertaken work to improve the response to the perpetrators through the criminal justice system. As was set out in the consultation response published alongside the draft Bill, we are taking action to improve the identification and risk assessment of perpetrators. The College of Policing has published key principles for police on the management of serial and dangerous domestic abuse perpetrators, and we are expanding the range of interventions available to offenders serving community sentences.
We recognise the concerns; that is why we want to ensure that we develop and properly test a whole-system approach, in particular through the piloting of DAPOs. It might well prove counterproductive to develop a new strategy without awaiting the learning from those pilots. I hope that, in the light of our intention to work towards that fully comprehensive package of perpetrator programmes and our wider programme of work to confront and change perpetrator behaviours, the hon. Member for Birmingham, Yardley will see her way to withdrawing the amendment.
Jess Phillips
I recognise what the Minister says about the fact that perpetrator programmes are used elsewhere. Very often in children’s services, I have seen people sent on perpetrator programmes that, I am afraid to say, are useless. If only everything was as perfect as it is in Westminster.
Jess Phillips
I apologise if I did not cover all the boroughs in London. I did not come up with the amendments all by myself; the specialist sector is working with us to ask for these things, and the reality is that, as sometimes happens in this place, we will say how something is on the ground and we will be told that that is not the case. We will be told, “Actually, no; it’s going to be fine because we are going to have a whole-system approach.”
What the Minister says about a whole-system approach is needed wherever perpetrator programmes are issued, rather than just in DAPOs. I could not agree with him more on that point. I shall allow him as many interventions as he likes, and I will speak for as long as it takes for him to get the answer. If he is saying to me that, at the other end of this very notable approach and funding that the Home Office and the Government are putting in place, we will end up with an accredited system that stops the bad practice and the poor commissioning of services, of course I will withdraw the amendment.
Is the Minister saying that we will work towards a standard that will have to be met and that will be compelled—not dissimilar to the standard that we will hopefully come on to tomorrow, where we compel local authorities with a duty? There, I believe, we will be writing a set of standards that the local authority in its commissioning process has to live by, so that it cannot just say, “We’re doing any old domestic abuse services.” There has long been talk at MHCLG about having standards to go with any duty. Is the Minister telling me that we will end up with an accreditation system, which is essentially what I seek?
Alex Chalk
The whole point of the approach we are taking is to seek standardisation across the piece. Words like “accreditation” can mean all sorts of things, but certainly it is the case that our absolute aim is to draw on the best practice that we have referred to and combine it with the experience we glean from the pilots to work out what we think is best practice, to clarify what that best practice is and to do everything we can to promulgate that best practice. One can use words like “accreditation” or “standardisation”, but we want to use the mechanisms within the Bill—pilot and guidance—to do precisely what the hon. Lady is aiming for. We recognise that clarity, consistency and credibility are the hallmarks of an effective order, and that is precisely what we want to achieve.
Jess Phillips
I welcome what the Minister says. I suppose the reality is that if that does not happen, I have no recourse beyond changing this Bill. Actually, I can just stand in this building and say, “Things aren’t working and we don’t have good perpetrator systems,” but it will largely fall on deaf ears. It might not—we cannot know which ears it will fall on—but, largely, when people come and say that things are not working in whatever we are talking about, it is very hard.
I have a Bill in front of me, and I can attempt to compel this to happen. However, on this occasion—because I would never describe the Minister as having deaf ears, and I am quite confident in my own ability to keep on raising the issue until the right thing happens—I accept and welcome what the Minister has outlined, and I look forward to working on it with him, the commissioner and the sector. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 33 ordered to stand part of the Bill.
Clause 34
Further provision about electronic monitoring requirements
Question proposed, That the clause stand part of the Bill.
Alex Chalk
Clause 34 sets out the circumstances in which a court can impose electronic monitoring requirements on a person as part of an order, and the nature of such requirements. The clause specifies that the electronic monitoring requirements may not be imposed if the person is not present at the hearing. The clause also specifies that, if there is a person other than the perpetrator who will need to co-operate with the monitoring requirements in order for them to be practicable, they will need to give their consent before the requirements can be imposed. That may include, for example, the occupier of the premises where the perpetrator lives. The court must also have been notified by the Secretary of State that electronic monitoring requirements are available in the area, and it must be satisfied that the provision can be made under the arrangements available. Any order that imposes electronic monitoring requirements must also specify the person who will be responsible for their monitoring.
Where electronic monitoring requirements are imposed, the person must submit to being fitted with the necessary apparatus and to the installation of any associated equipment, and they must co-operate with any inspection or repair that is required. They must not interfere with the apparatus, and they must keep it in working order—for example, by keeping it charged. I trust that the Committee will agree that proper procedures should be in place when a decision is made by the court that electronic monitoring is required.
Question put and agreed to.
Clause 34 accordingly ordered to stand part of the Bill.
Clause 35 ordered to stand part of the Bill.
Clause 36
Breach of order
Alex Chalk
I beg to move amendment 31, in clause 36, page 23, line 29, leave out
“section 154(1) of the Criminal Justice Act 2003”
and insert
“paragraph 24(2) of Schedule 22 to the Sentencing Act 2020”.
This amendment, and amendments 32, 34, 35 and 37, update references to existing legislation in the Bill to refer to the equivalent provision made by the Sentencing Bill that was introduced into Parliament in March (which will introduce the new Sentencing Code).
The Chair
With this it will be convenient to consider the following:
Government amendments 32, 34, 35 and 37.
New clause 15—Consequential amendments of the Sentencing Code—
“(1) The Sentencing Code is amended as follows.
(2) In section 80 (order for conditional discharge), in subsection (3), at the end insert—
‘(f) section 36(6) (breach of domestic abuse protection order).’
(3) In Chapter 6 of Part 11 (other behaviour orders), before section 379 (but after the heading ‘Other orders’) insert—
‘378A Domestic abuse protection orders
See Part 3 of the Domestic Abuse Act 2020 (and in particular section 28(3) of that Act) for the power of a court to make a domestic abuse protection order when dealing with an offender for an offence.’”
This New Clause makes two consequential amendments to the Sentencing Code as a result of Part 3 of the Bill. The first adds a reference to clause 36(6) to the list of cases where an order for conditional discharge is not available. The second inserts a signpost to Part 3 of the Bill into Part 11 of the Sentencing Code, which deals with behaviour orders.
Alex Chalk
Am I permitted to speak to all the amendments? They are all quite technical.
The Chair
At this stage, we are debating all the amendments I referred to. You have to move only amendment 31 at this moment, but you can talk about them all.
Alex Chalk
That is eminently sensible.
These are minor and technical Government amendments. Clause 36 provides that a breach of a DAPO is a criminal offence. Where someone is convicted of such an offence, clause 36(6) provides that a conditional discharge is not an option open to the court in respect of the offence. As I am sure hon. Members are aware, a conditional discharge means that the offender is released and no further action is taken unless the offender commits another offence within the specified period, at which point they can be sentenced for the first offence at the same time as the new offence.
Misconduct by members of the armed forces and by civilians subject to service discipline, which is an offence in England and Wales—or would be, if it took place there—may also be charged as a service offence under the disciplinary regime of the Armed Forces Act 2006. It means that a breach of a DAPO may come before the court martial and other service courts.
Amendment 33 to clause 36—I will come to amendments 31 and 32 in a moment—makes equivalent provision to clause 36(6), whereas—
Alex Chalk
It is that kind of flexibility in the Chair that we have grown to love and admire. Thank you very much, Mr Bone.
I was saying that amendment 33 makes equivalent provision to clause 36(6). When a service court convicts someone of the offence of a breach of a DAPO, a conditional discharge is not an option that is open to the service court in respect of the offence. Amendments 38 and 39 would make consequential amendments to the extent clause—clause 71—to ensure that the extent of new clause 36(6)(a), inserted by amendment 33, aligns with the extent of the Armed Forces Act 2016. That is a long-winded way of saying that we need to make sure that this measure dovetails with the 2016 Act in respect of the conditional discharge implications.
Amendments 31, 32, 34, 35 and 37, which I hope are on your list Mr Bone, make amendments to part 3 of the Bill—as we know, part 3 provides for DAPOs—and clause 59—
“Prohibition of cross-examination in person in family proceedings”—
and are consequential on the sentencing code. In turn, new clause 15 makes two consequential amendments to the sentencing code as a result of part 3. The first adds a reference to clause 36(6) to the list of cases where an order for conditional discharge is not available. The second inserts a signpost to part 3 of the Bill into part 11 of the sentencing code, which deals with behaviour orders, such as a DAPO.
Members may be asking, “What on earth is the Sentencing Bill?” The Sentencing Bill, which was introduced in the House of Lords on 5 March 2020, provides for the new sentencing code. The new code, which will be transformational for practitioners, is a consolidation of the law governing sentencing procedure in England and Wales. It brings together the procedural provisions that sentencing courts need to rely on during the sentencing process, and in doing so it aims to ensure that the law relating to sentencing procedure is readily comprehensible, and operates within a clear framework and as efficiently as possible.
Amendment 31 agreed to.
Amendments made: 32, in clause 36, page 23, line 36, leave out from “under” to “(conditional” and insert “section 80 of the Sentencing Code”.
See the explanatory statement for amendment 31.
Amendment 33, in clause 36, page 23, line 37, at end insert—
“(6A) If a person is convicted of an offence under section 42 of the Armed Forces Act 2006 as respects which the corresponding offence under the law of England and Wales (within the meaning given by that section) is an offence under this section, it is not open to the service court that convicted the person to make, in respect of the offence, an order under section 185 of that Act (conditional discharge).
In this subsection “service court” means the Court Martial or the Service Civilian Court.”.—(Alex Chalk.)
Conduct that is an offence under the law of England and Wales (or would be if it took place there) may be charged as a service offence, so a breach of a domestic abuse protection order may be dealt with by a service court. This amendment therefore makes provision corresponding to that made by clause 36(6), prohibiting a service court from giving a person a conditional discharge for breaching an order.
Clause 36, as amended, ordered to stand part of the Bill.
Clause 37
Arrest for breach of order
Question proposed, That the clause stand part of the Bill.
Alex Chalk
Clause 37 relates to arrest for breach of order and it makes provision for breach of a domestic abuse protection order to be dealt with as a civil matter— that is, as a contempt of court. A breach of an order is a criminal offence under clause 36, which we did not debate, whereby a police officer can make an arrest without a warrant under powers in the Police and Criminal Evidence Act 1984.
However, we understand that some victims may be concerned about their partner or ex-partner being convicted of a criminal offence for breaching the order. Where an order is made by the High Court, the family court or the county court, clause 37 makes provision for the victim—the original applicant for the order—or any other person with leave of the judge to apply to the court for a warrant of arrest to be issued. That means that the court can then deal with the breach as a civil matter as a contempt of court. We consider that this allows effective action to be taken by the court following breach of an order, while still providing an option for victims who do not wish to criminalise their partner or ex-partner.
Schedule 1 makes further provision regarding remand under clause 37, where breach of a DAPO is being dealt with by the court as a civil matter. It sets out the procedure whereby the court may remand the person who has been arrested for breach. The process set out is consistent with existing law and replicates the approach the court already takes in regard to remand in such cases. It is sometimes necessary for the court to adjourn the hearing in order to allow for evidence to be prepared. In such cases, the court may decide to remand the person in custody or on bail.
Remand would usually only be used in cases where the court considers that the person arrested for breach is at a high risk of either committing further breaches or evading the return hearing. That may include, for example, if the court considers that person a flight risk.
Clause 37 accordingly ordered to stand part of the Bill.
Schedule 1 agreed to.
Clause 38
Notification requirements
Question proposed, That the clause stand part of the Bill.
Victoria Atkins
Clause 38 provides that all DAPOs will impose notification requirements on the perpetrator, requiring them to notify the police of certain personal details within three days, beginning with the day on which the order is made. The perpetrator will have to provide details of their name, together with any aliases that they use, their home address and any changes to those details. This will help to ensure the police have the right information at the right time in order to monitor the perpetrator’s whereabouts and the risk posed to the victim.
These provisions have been drafted to capture a number of different scenarios, including if the perpetrator has no one fixed address, leaves and then returns to the UK or becomes homeless, helping to ensure their compliance with the notification requirements. There is also a power for the Home Secretary to specify by regulations further notification requirements, which a court may attach to a DAPO on a case-by-case basis, as appropriate. For example, details of the perpetrator’s work place, whether they hold a firearms licence and details of new applications for a spousal visa.
We will use the pilot of the orders to assess whether the current provisions are sufficient or whether it is necessary for the police to be notified of additional information by the perpetrator in order to protect victims. If so, this can be set out in regulations at a later stage.
Question put and agreed to.
Clause 38 accordingly ordered to stand part of the Bill.
Clause 39 ordered to stand part of the Bill.
Clause 40
Offences relating to notification
Amendment made: 34, in clause 40, page 26, line 22, leave out “section 154(1) of the Criminal Justice Act 2003” and insert “paragraph 24(2) of Schedule 22 to the Sentencing Act 2020”.—(Alex Chalk.)
See the explanatory statement for amendment 31.
Question proposed, That the clause, as amended, stand part of the Bill.
Victoria Atkins
Clause 40 simply provides that breach of the notification requirements without reasonable excuse is an offence carrying a maximum penalty of five years imprisonment. Again, this sends a very strong message to perpetrators that the Government, as well as the courts, the agencies, the police and so on, take any breaches of these orders very seriously indeed.
Question put and agreed to.
Clause 40, as amended, accordingly ordered to stand part of the Bill.
Clause 41
Variation and discharge of orders
Question proposed, That the clause stand part of the Bill.
Alex Chalk
Clause 41 is about the variation and discharge of orders. Another example of the DAPO’s flexibility is that the requirements imposed by the order can be varied so that the courts can respond to changes over time in the perpetrator’s abusive behaviour. That is important for the complainant, so to speak, as well as for the person who is subject to the perpetrator order. It is important that he—it will usually be a he—can come back to the court to seek to vary it if appropriate. That is why the clause is drafted as it is.
Question put and agreed to.
Clause 41 accordingly ordered to stand part of the Bill.
Clauses 42 to 44 ordered to stand part of the Bill.
Clause 45
Nature of certain proceedings under this Part
Amendment made: 35, in clause 45, page 31, leave out line 15 and insert
“sections 79, 80 and 82 of the Sentencing Code”—(Alex Chalk.)
See the explanatory statement for amendment 31.
Clause 45, as amended, ordered to stand part of the Bill.
Clause 46
Special measures for witnesses
Question proposed, That the clause stand part of the Bill.
Alex Chalk
Clause 46 relates to special measures for witnesses. It ensures that victims in DAPO proceedings will be eligible for special measures when giving evidence. As some Members will know, special measures are used to assist vulnerable and intimidated witnesses to give their best evidence, and can include giving evidence from behind a screen, giving evidence remotely via a video link, giving pre-recorded evidence in chief, or giving evidence through an interpreter or another intermediary. Many witnesses in criminal and family proceedings already benefit from access to special measures when giving evidence, and we are strengthening those provisions for victims of domestic abuse in criminal proceedings through clause 58.
Question put and agreed to.
Clause 46 accordingly ordered to stand part of the Bill.
Clause 47
Guidance
Question proposed, That the clause stand part of the Bill.
The Chair
With this it will be convenient to discuss new clause 47— Review of domestic abuse protection orders and notices—
“(1) The Secretary of State must within 12 months of this Act being passed conduct a review into the operation and use of domestic abuse protection orders and notices.
(2) The review must take account of—
(a) the extent to which domestic abuse protection orders and notices have been used;
(b) data on the effectiveness of domestic abuse protection orders and notices in tackling and preventing domestic abuse;
(c) the views of those for whose protection orders and notices have been made.
(3) In designing and conducting the review, the Secretary of State must consult—
(a) the Domestic Abuse Commissioner,
(b) the Welsh Ministers,
(c) organisations providing support to victims and perpetrators of domestic abuse,
(d) such other persons as the Secretary of State considers appropriate.
(4) Upon completion of the review, the Secretary of State must publish and lay before Parliament a report setting out—
(a) the findings of the review, and
(b) the action the Secretary of State proposes to take in response to the review.”
This new clause would ensure that both DAPOs and DAPNs are reviewed to ensure that they are operating effectively and serving the purpose that they were intended for.
Victoria Atkins
Clause 47 requires the Government to issue statutory guidance on the new notices and orders to the police, and to any third parties specified in regulations who may make a standalone application for an order. The recipients of that guidance must have regard to it when exercising their functions. The Government are also required to consult the commissioner before issuing or revising any guidance under the clause. This provision is crucial to help to ensure that frontline practitioners have the knowledge, understanding and confidence to use DAPOs effectively and consistently, in order to help victims and their children.
Topics to be covered by the guidance include how the different application pathways for a DAPO operate, when to consider applying for a DAPO and how to prepare robust application conditions, which may be included in a DAPO, and how to work with victims effectively, highlighting the importance of robust safety planning and referral to appropriate victim support services. We will develop the guidance in collaboration with the police and sector experts, ensuring that it is of high quality and relevant to the frontline practitioners using it.
Question put and agreed to.
Clause 47 accordingly ordered to stand part of the Bill.
Clause 48 ordered to stand part of the Bill.
Clause 49
Powers to make other orders in proceedings under this Part
Question proposed, That the clause stand part of the Bill.
Alex Chalk
The clause relates to powers to make other orders in proceedings under this part. I will speak briefly on this, because it is important. Clause 49 makes provision for DAPO proceedings to be included in the definition of family proceedings in the Children Act 1989 and the Family Law Act 1996, if they are taking place in the family court or the family division of the high court. In practical terms, that will ensure that family judges have access to their powers under the Children Act and the Family Law Act in the course of DAPO proceedings.
For example, if a family judge is hearing an application to make or vary a DAPO, and concerns around child contact arrangements are raised, the judge will be able to make an order under the Children Act without a separate application having to be issued. We consider that that will provide clarity and flexibility to the court, as judges will be able to use their powers under the Children Act and the Family Law Act in any DAPO proceedings to best protect victims of domestic abuse and their children.
Question put and agreed to.
Clause 49 accordingly ordered to stand part of the Bill.
Clauses 50 to 52 ordered to stand part of the Bill.
Ordered, That further consideration be now adjourned. —(Rebecca Harris.)
Domestic Abuse Bill (Eighth sitting) Debate
Full Debate: Read Full DebateDepartment: Ministry of Justice
Alex Chalk
Main Page: Alex Chalk (Conservative - Cheltenham)Department Debates - View all Alex Chalk's debates with the Ministry of Justice
Domestic Abuse Bill (Eighth sitting)
Alex Chalk ExcerptsThursday 11th June 2020
(3 years, 10 months ago)
Public Bill CommitteesRead Full debate Domestic Abuse Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 11 June 2020 - (11 Jun 2020)
Julie Marson
Absolutely; I completely agree. We cannot legislate for everything you can do in a court—every courtroom is set out differently. I have seen a lady with two teenage daughters, with the husband, and some really clever dynamics were needed to keep everyone separate, including in the toilets. In my experience, such measures have been very positive. There have been specialist domestic violence courts. Everyone is keenly aware of what is needed and is trying to think ahead for the kinds of measures that can make justice effective and make sure that justice is done. Such measures are all part of that.
The Parliamentary Under-Secretary of State for Justice (Alex Chalk)
I am delighted to see you in the Chair once again, Ms Buck. I thank my hon. Friend the Member for Hertford and Stortford for her excellent contribution. It speaks to the strength of the Committee that its members have real-world experience and can apply it to the important matters that we are here to discuss.
Before turning to the amendment and new clause, it is worth taking stock of where we are in terms of the court process and the framework in which the amendment and new clause sit. Over the last 10 years or so—probably a bit longer—the environment for victims and witnesses has been completely transformed. It was not so long ago that a complainant in a case of serious violence or a serious sexual allegation had to turn up at court and eyeball the defendant. It required an extraordinary effort of will, and a lot of people just thought, “This isn’t worth the candle.”
Legislation was introduced that provided the opportunity for screens and giving evidence via live link. At the time, that was considered utterly revolutionary. People were clutching their pearls, saying, “That’s it; justice is dead in our country; there is no opportunity for people to get a fair trial” and so on. The culture has changed. Now, at plea and trial preparation hearings such orders are routinely made and, lo and behold, juries—indeed, benches of magistrates as well—seem to find it perfectly straightforward to make a judgment in the interests of justice on the facts in front of them.
Setting that context helps to bring us up to the situation at the moment. Let us imagine some facts for a moment. The allegation is one of sexual assault on the London Underground. At that early hearing, before the Crown court, long before the trial has even been scheduled, the judge will ask the prosecutor, “Are there any applications for a special measures direction?” The prosecutor will stand up and say, “Yes, there is a complainant in this case and it is an allegation of a sexual nature, so I will be inviting the court to make a special measures direction in the normal way.” That is precisely what will happen, because it will be automatic.
I pause to note one further point. If the complainant says, “Forget this. I don’t want a screen, and I don’t want to give evidence on a live link; I want to be there in the well of the court, because that is how I feel I will get justice”, that will be accommodated as well.
Jess Phillips
The Minister says that the report will be published in the coming weeks. Does he expect that we will see it prior to Report stage of the Bill, or potentially prior to Committee stage in the Lords, as he has leaned on for one particular review? I ask only because I am seeking to understand what will be given to me as I consider whether to push new clause 45 to a Division.
Alex Chalk
I invite the hon. Lady to listen to the end of my remarks. If I can put it in these terms, the words I will use at the end are carefully phrased. I invite her to listen to those and then decide. A huge amount of work has gone into this panel, and getting to a place where we are ready to publish is the stuff of enormous effort. We are moving as quickly as we can, and it will be published as quickly as possible.
On the civil courts, there are no specific provisions in the civil procedure rules that deal with vulnerable parties or witnesses. However, judges have an inherent power, where the court is alerted to vulnerability, to make a number of directions or take steps to facilitate the progression or defending of a claim or the giving of evidence by a vulnerable party.
Liz Saville Roberts
To summarise considerably, I am sure that the Minister is aware that the Civil Justice Council returned earlier this year with the civil procedure rule committee. One of its recommendations was a new practice direction to address vulnerability. I wonder whether he could consider that.
Alex Chalk
The hon. Lady must have a copy of my speech, because I will come to that point in just a moment.
The directions that a civil court can make include, but are not limited to, giving evidence via video link, by deposition, by the use of other technology or through an intermediary or interpreter. On the hon. Lady’s point, following the April 2018 publication of the interim report and recommendations of the independent inquiry into child sexual abuse, the Ministry of Justice commissioned the Civil Justice Council—an advisory body responsible for overseeing and co-ordinating modernisation of the civil justice system—to consider the issues raised by these recommendations, and to compile a report that was not to be restricted only to victims and survivors of child sexual abuse.
The CJC published its report, “Vulnerable witnesses and parties within civil proceedings: current position and recommendations for change”, in February 2020. It made a number of recommendations, as the hon. Lady rightly points out. On special measures, the CJC report concluded that, in the civil jurisdiction, the issue is one of awareness and training, rather than lack of legal powers or framework. This goes back to my point on the role of this place in promoting awareness while recognising that discretion should be available to the court. That was the CJC’s conclusion. Its suggestion was that special measures were best left to the flexibility of court rules. The Government are considering how the recommendations in the independent report should be taken forward.
What is evident from the evidence received by the family panel and the Civil Justice Council is that the current position is unsatisfactory. The question is how best to improve the situation and ensure that vulnerable witnesses in the family and civil courts receive assistance to give their best evidence, in a way analogous to what the Bill already provides for in the criminal courts. We have the report from the Civil Justice Council to guide us but do not yet have the report of the family panel. However, I hope and expect that we will have it shortly, and it is right that we should consider the panel’s findings before legislating.
I am sympathetic to the intention behind these proposals. If the hon. Member for Edinburgh West would agree to withdraw her amendment I can give her and the shadow Minister an assurance that, between now and Report, we will carefully consider both proposals, and how best to proceed. If they are not satisfied with the conclusions the Government reach, they are of course perfectly entitled to bring amendments back on Report.
Christine Jardine
I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 58 ordered to stand part of the Bill.
Clause 59
Prohibition of cross-examination in person in family proceedings
Amendment made: 37, in clause 59, page 39, line 32, at end insert—
“(aa) section 80 of the Sentencing Code;” —(Alex Chalk.)
See the explanatory statement for amendment 31.
Question proposed, That the clause, as amended, stand part of the Bill.
Alex Chalk
Let me say a little about clause 59. In fact, the right hon. Member for Dwyfor Meirionnydd was starting to talk about it, so I will set out some context. The clause contains provisions to prevent unrepresented perpetrators of abuse from cross-examining their victims in person in family proceedings. It also makes provision to give family courts the power to appoint a qualified legal representative to undertake the cross-examination instead, where necessary.
The Joint Committee on the Draft Domestic Abuse Bill, which undertook pre-legislative scrutiny of the draft Bill, recommended that the automatic prohibition of cross-examination be extended so that it would apply when the victim could provide evidence of abuse, as in the legal aid regime. We have accepted the recommendation in full, and the clause now gives full effect to it.
Some of the most vulnerable members of society come before the family courts, and we are determined to offer them every protection and to ensure that every vulnerable victim or witness coming to the family courts has confidence that the court will not be used to perpetrate further abuse against them. Currently, family judges have a range of powers to make sure that difficult courtroom situations are handled sensitively for vulnerable witnesses. In proceedings where both parties are litigants in person and concerns of domestic abuse have been raised, that may include carrying out cross-examination by way of the judge or the justices’ legal advisers putting questions to the parties themselves. Alternatively, the judge can decide that an alternative form of evidence, such as pre-recorded cross-examination from criminal proceedings, is sufficient.
However, there are cases in which those alternative forms of evidence or cross-examination will not be sufficient to test the evidence in the case thoroughly. We must recognise that for the judge to step into the arena to ask those questions is often—how can I put it politely?—suboptimal. In those instances, the court currently has no power to appoint an advocate to carry out the cross-examination in place of the parties themselves. That can lead to situations in which the court is powerless to prevent a victim from being cross-examined in person by their abuser.
I am sure we would all feel uncomfortable about a situation in which evidence was not challenged. The whole point of an adversarial process is to tease out inconsistencies and omissions in the evidence. If that is not happening, the proceedings are not fair, so it is important that there should be scope within the trial process for frailties in the evidence to be ruthlessly exposed.
We recognise that the issue has been the subject of close attention in the House and among experts in the field. Victims have told us that being subject to cross-examination in person in this way can be retraumatising, and judges have told us that the situation is an impossible one for them to manage. I entirely sympathise. We are determined that the court should never be used as a forum to perpetuate further abuse, and that it should have sufficient powers in all cases to prevent abuse from being perpetrated through court processes.
The purpose of the clause is therefore to introduce a prohibition on victims being cross-examined in person in specified circumstances. In addition, the clause gives the court the power to appoint an advocate, paid for from central funds, for the purpose of cross-examination where there are no satisfactory means to cross-examine the witness or to obtain the evidence, where the party does not appoint a legal representative or themselves to do so, and where it is necessary in the interests of justice to do so.
Jess Phillips
I welcome what the Minister is saying, but on the specific instances he is outlining of who exactly would be able to assess this, does he foresee an element of the judge’s discretion also allowing them to go to central funds where they believe enough that cross-examination would cause distress, regardless of whether there may previously have been a conviction or an order in place? As we all know, there is a disparity between conviction and order rates on the one hand, and domestic violence rates on the other.
Alex Chalk
Courts have a common law discretion to manage their own proceedings, but it will be important for us to assist the them as much as possible by setting out the categories that should trigger the exemption. Although courts can act of their own motion, it is none the less important to prescribe to an extent that the provision applies in circumstances where somebody has been convicted, charged or cautioned. I will develop that point in the following passage.
In the light of the recommendation from the Joint Committee on the Draft Domestic Abuse Bill, the clause now makes provision that the automatic ban will also apply in other cases where a witness has adduced specified evidence of domestic abuse. The evidence will be specified in regulations and, as recommended by the Joint Committee, we intend for this evidence to broadly replicate that which is used to access civil legal aid. That is probably the point that the hon. Lady was driving at.
The prohibitions also apply reciprocally, to prevent a victim from having to cross-examine their abuser in person. Where the automatic ban does not apply, the clause also gives the court a discretion to prohibit cross-examination in person where it would be likely to diminish the quality of the witness’s evidence or cause significant distress to the witness or the party. That is the point about a court’s discretion: the judge has the individuals in front of them, can hear from them and can make a decision based on that.
In any case where cross-examination in person is prohibited, either under the automatic prohibition or at the discretion of the court, the judge must consider whether there is a satisfactory alternative means by which the witness can be cross-examined or the evidence can be obtained. That would include means that already fall under the judge’s general case management powers, such as putting the questions to the witness themselves or via a legal adviser, or by accepting pre-recorded cross-examination. I suppose one might imagine cases where the things that need to be cross-examined on are so narrow in scope that it would not be worth the aggravation of instructing independent counsel if the judge can do it and do justice in that way. It is important that the court can act of its own motion and flexibly, and the clause retains that flexibility.
If there are no satisfactory alternative means, the court must invite the prohibited party to appoint a legal representative to carry out cross-examination on their behalf. If they choose not to, or are unable to, the clause gives the court the power to appoint a legal representative—an advocate—for the sole purpose of conducting the cross-examination in the interests of the prohibited party. The court must appoint an advocate where it considers this to be necessary in the interests of justice.
There could be circumstances where it is not possible to protect the prohibited party’s rights to access to justice and/or a family life without the appointment of such an advocate. This might be in circumstances, for example, where the evidence that needs to be tested by cross-examination is complicated, because it is complex medical or other expert evidence, or because it is complex or confused factual evidence, say from a vulnerable witness. The clause also confers power on the Secretary of State to issue statutory guidance in connection with the role of that advocate.
The clause also confers power on the Secretary of State to make regulations about the fees and costs of a court-appointed advocate to be met from central funds. We understand the particular skill and care that is needed to carry out cross-examination of a vulnerable witness effectively. We will be designing a full fee scheme to support these provisions, in consultation with the sector and interested parties, prior to the implementation of the Bill.
This clause seeks to ensure that, in future, no victim of domestic abuse has to endure the trauma of being questioned in person by their abuser as part of ongoing family proceedings. It makes a big difference, and I commend it to the Committee.
Peter Kyle
It is rare but pleasing when one agrees so fully with the person one shadows, and I am grateful to him. I do not want to shock the Minister—I do not want him to be clutching his pearls as I say such words—but it is certainly the situation we find ourselves in on this clause. We are not opposing or seeking to amend the clause; we agree fully with it and what it seeks to achieve.
However, I want to spend a bit of time explaining how we got to where we are, because it is important. It is important that we make sure the record reflects the situation that this clause seeks to rectify and the impact that the cross-examination by perpetrators of victims has had on people. In so doing, I speak on behalf of a great number of advocates, both in Parliament and outside, over a great period of time. I can speak for myself on this issue, but I am very aware of the fact that I am also speaking on behalf of a lot of other people.
I had personal experience of this issue very soon after getting elected in 2015. Soon after the election, I was sitting on the floor of my campaign office among the detritus of a very vigorous campaign, sorting through things and trying to figure things out, when a very fragile, very vulnerable and very damaged woman suddenly appeared in the doorway. She came in to see me, and said, “Are you the new MP?” I said yes, and she said, “I saw your leaflets. You look like a friendly person. I am now going to flee my relationship, and I will only speak to you about it.” We sat in the corner of the office, and this woman was bruised and bleeding. She had literally escaped from the relationship, and I, as an MP of a few days, was thinking on the inside, “Oh my God, what do I do in this situation? How do I help this extraordinarily vulnerable person?” I just did the best I possibly could, and that involved brokering a relationship between her and the police, about which she was terrified. She was scared of the authorities because the authorities had let her down so many times, repeatedly. I supported that woman, and she went into a protective programme. She now has a new identity and a new life, and although she will never ever be able to escape the horrors of what she went through, she certainly has an opportunity to discover new, more fruitful aspects of life, which she was prevented from doing before.
One of the aspects I experienced very soon after the process of supporting her began was the experience of the family court. I could not believe what I heard when she came to see me after some hearings in the family court, where she was made to share the space of the person she had fled. Having seen her on the day she fled her relationship, it was horrendous to hear that she was forced into the same waiting room as this person, had to be in the same space when their relationship was discussed and, crucially, was cross-examined by him.
At the same time, another constituent came to see me in my surgery. She had just been cross-examined by her abusive partner for the third time. She had previously been hospitalised; the perpetrator had broken more than a dozen or her bones and repeatedly raped her. On the third appearance in the family court, she was shaking so violently that she needed assistance to get to the taxi afterwards. On the journey home, the taxi driver had to stop and help her out of the taxi so that she could vomit on the pavement.
That was happening to people who I was sitting with and who I represented in Parliament. I could not understand that the very institutions that existed to protect people like them were facilitating the abuse—in front of judges, in a room with police officers, abuse was happening, and nobody was offering support. To my shame, I could not quite believe that this was possible in 21st-century Britain. When I came back to Parliament, I sought out my right hon. and learned Friend the Member for Holborn and St Pancras (Keir Starmer) and asked him about it. I said, “I am hearing this thing, but I can’t believe it is possible.” He, as the former Director of Public Prosecutions, said, “It is happening, and there is a big campaign out there to try and change it.”
I could not believe that it was still happening, so I went to speak to Ministers. Repeatedly, Minister after Minister told me that a cultural change was needed in the criminal justice system, not a legislative change. I could not accept that. Having gone to speak to judges to understand why change was not happening, and having repeatedly spoken to Ministers, I found it incredibly hard to believe that the Government were not seeing or understanding the abuse. Of course, they were seeing it, but they were refusing to change. There are many lessons here, and I hope Back Benchers realise that persistence is one of them.
On 15 September 2016, I secured a Backbench debate that was led by Angela Smith, the then Member for Penistone and Stocksbridge. We had gone with a cross-party group to get a Backbench debate. There were several Tories in the group, and we worked as a formidable team. My hon. Friend the Member for Birmingham, Yardley was not part of the group that went to the Backbench Business Committee, because she sat on the Committee and was supposed to be impartial, but it was clear from her facial expressions where she stood on the issue.
During the debate itself, I was able to put on record the most shocking example of this abuse that I have ever come across. In the eight or nine months leading up to the debate, I met dozens of women who had gone through such abuse. The most shocking case was that of Jane Clough—some people in this room will be aware of her case. I am not the sort of person who normally quotes himself, but in going through all the different debates that have taken place in Parliament in the last five years on this issue, I read some of the examples I put on record, and I want to quote directly from one debate. My reason for doing so is that I want Members to realise, and I want the record to reflect, that this example has been on the House of Commons record for almost four years.
Alex Chalk
Before turning to the specific point, I listened carefully to what the hon. Member for Hove said, and it was clear that he has taken a close interest in the issue. I thank him for the energy that he has clearly applied to it. As I was listening to him, I heard about Bills that had fallen, elections that had come and UQs that had happened, and I was reminded of Otto von Bismarck, the German Chancellor, who said: “Laws are like sausages; it is best not to watch them being made.”
That is absolutely right and I felt it about this. Inevitably—not inevitably, but not uncommonly—it can take time to get there, but we are absolutely delighted with where we have arrived at with this important legislation. It is important to note, too, that it takes place in the context of other important legislation that it was possible to get over the line earlier, such as on coercive control or modern slavery. The Bill sits within that wider context in which we take some pride.
I will first address the issue of spent convictions, friends and so on, and that will allow me to go back to a point made by the hon. Member for Birmingham, Yardley, when she in effect said, “What happens in circumstances where it is not necessarily a conviction or a caution, but something else?” If hon. Members turn to page 40 of the Bill, that is the relevant part of clause 59, which deals with how the Matrimonial and Family Proceedings Act 1984 will be amended. The clause having dealt specifically with issues of conviction and caution, proposed new section 31U—“Direction for prohibition of cross-examination in person: other cases”— states:
“In family proceedings, the court may give a direction prohibiting a party to the proceedings from cross-examining…a witness in person if…none of sections 31R to 31T operates to prevent the party from cross-examining the witness”—
that relates to people protected by injunctions, convictions or other matters—and
“it appears to the court that—
(i) the quality condition or the significant distress condition is met, and
(ii) it would not be contrary to the interests of justice to give the direction.”
In other words, it would be open to the party to indicate to the court: “Yes, I don’t automatically qualify, but I’m going to provide a statement that indicates that it would adversely affect the quality of the evidence I can give were I to be cross-examined by the other party.” I hope that that will give the courts confidence that flexibility is deliberately built into the system.
Liz Saville Roberts
To return to my concern about the lack of communication between jurisdictions, on spent convictions we are going quite a long way down the road as to what communication is necessary. Is the Minister confident that there is sufficient communication, or that there will be in the wake of the legislation, to ensure that such situations are safeguarded against?
Alex Chalk
Yes, I am confident, but it goes back to the earlier point that we were making about culture. If, by dint of the legislation, the family judges, when deciding whether to make one of the orders, are alive to the fact that they will need to consider whether someone has a conviction or a caution, that will, in and of itself, encourage and require the co-operation of the police. In other words, the court will have to find out what is on the police national computer in respect of the other party.
I am confident that courts will see their way to ensuring that those lines of communication are in place. Quite apart from anything else, if a judge finds himself, or herself, in a situation where he cannot make the order because he has not been provided with the information he needs, we can be very sure that he is likely to say something about that. That will, I am sure, elicit change in the fullness of time, so the short answer to the hon. Lady’s question is yes.
Question put and agreed to.
Clause 59, as amended, accordingly ordered to stand part of the Bill.
Clause 60 ordered to stand part of the Bill.
Clause 61
Offences against the person committed outside the UK: Northern Ireland
Question proposed, That the clause stand part of the Bill.
Alex Chalk
Clause 61 extends the jurisdiction of the criminal courts in Northern Ireland in the same terms as clause 60 extends the jurisdiction of the criminal courts in England and Wales. We did not go into clause 60 in any detail, but that is what it is about.
Clause 61 gives effect in Northern Ireland to our obligations under article 44 of the Istanbul convention, as it applies to article 35, which covers physical violence, and article 39, which covers forced abortion and forced sterilisation. Like clause 60, it does so by extending extraterritorial jurisdiction to certain offences against the person, including actual or grievous bodily harm and murder and manslaughter, in circumstances where the courts do not already have such jurisdiction. That will mean that a UK national or a person habitually resident in Northern Ireland who commits one of the offences outside the UK can, exceptionally, stand trial for the offence in Northern Ireland.
Question put and agreed to.
Clause 61 accordingly ordered to stand part of the Bill.
Clause 62
Amendments relating to offences committed outside the UK
Question proposed, That the clause stand part of the Bill.
Alex Chalk
The clause simply reintroduces schedule 2, which contains amendments relating to offences committed outside the UK. As with clauses 60 and 61, the amendments are necessary to ensure compliance with article 44 of the Istanbul convention. Part 1 of schedule 2 contains amendments to provide for extraterritorial jurisdiction over certain offences other than those set out in clause 60 under the law of England and Wales. Part 2 of schedule 2 contains amendments to provide for extraterritorial jurisdiction over certain offences under the law of Scotland. Part 3 of schedule 2 contains amendments to provide for extraterritorial jurisdiction over certain offences not including those set out in clause 61 under the law of Northern Ireland.
Schedule 2 contains amendments to a number of enactments to provide for extraterritorial jurisdiction over certain offences under the law of England and Wales, Scotland and Northern Ireland. Together with clauses 60 and 61 and provisions in the Domestic Abuse and Family Proceedings Bill currently before the Northern Ireland Assembly that give extraterritorial effect to the new domestic abuse offence in Northern Ireland, schedule 2 will ensure that the UK complies with the jurisdiction requirements of article 44 of the Istanbul convention.
Part 1 of the schedule covers England and Wales and gives effect to the UK’s obligations under article 44 as it applies to article 33, which covers psychological violence, article 34, which covers stalking, and article 36, which covers sexual violence, including rape. It does so by extending extraterritorial jurisdiction to offences under sections 4 and 4A of the Protection from Harassment Act 1997, sections 1 to 4 of the Sexual Offences Act 2003 where the victim of the offence is aged 18 or over, and section 76 of the Serious Crime Act 2015, which is about coercive control. It will mean that a UK national or a person habitually resident in England and Wales who commits one of these offences outside the UK can, exceptionally, stand trial for the offence in England and Wales. Where the offence involves a course of conduct, the offence may be committed wholly or partly outside the UK.
Part 2 of the schedule covers Scotland and gives effect to the UK’s obligations under article 44 as it applies to articles 33 to 36 and article 39. It does so by extending extraterritorial jurisdiction to the common law offence of assault, to offences under sections 1 to 4 of the Sexual Offences (Scotland) Act 2009 where the victim of the offence is aged 18 or over, and to the offence of stalking under section 39 of the Criminal Justice and Licensing (Scotland) Act 2010.
That will mean that a UK national or person habitually resident in Scotland who commits one of these offences outside the UK can, exceptionally, stand trial for the offence in Scotland. Where the offence involves a course of conduct, the offence may be committed wholly or partly outside the UK.
Part 3 of the schedule, as the Committee will be cottoning on to by now, covers Northern Ireland and gives effect to the UK’s obligations under article 44 as it applies to article 34 and 36. It does so by extending extraterritorial jurisdiction to offences under article 6 of the Protection from Harassment (Northern Ireland) Order 1997 and part 2 of the Sexual Offences (Northern Ireland) Order 2008, again where the victim of the offence is aged 18 or over. It will mean that a UK national or person habitually resident in Northern Ireland who commits one of these offences outside the UK can, exceptionally, stand trial for the offence in Northern Ireland. Where the offence involves a course of conduct, the offence may be committed wholly or partly outside the UK.
Jess Phillips
I simply want to welcome specifically the terminology of “habitual resident” within the UK. The Minister and I have met a number of different families over the years who have suffered violence, and I am afraid to say that those cases we get to see usually involve murder in a different country. Where the perpetrator of the crime was back here in Britain and was not a British citizen but was habitually resident in this country, the authorities had found that their hands were tied. While the measures seem perfunctory and were a lot of words for the Minister to say, to families they mean a huge amount, so I welcome them.
Question put and agreed to.
Clause 62 accordingly ordered to stand part of the Bill.
Schedule 2 agreed to.
Clause 63
Polygraph conditions for offenders released on licence
Question proposed, That the clause stand part of the Bill.
Alex Chalk
This clause is about polygraph conditions. It is an important clause that relates to conditions for offenders released on licence. It is one of a number of measures in the Bill directed at strengthening the effective management of domestic abuse perpetrators. It allows the Secretary of State for Justice to introduce mandatory polygraph examinations as a licence condition for offenders convicted of a relevant domestic abuse-related offence. The relevant offences include murder, specified violent offences and the offence of controlling or coercive behaviour under the Serious Crime Act 2015. Necessarily, this is a new departure to some extent, but it is kept within tight limits, as members of the Committee would expect.
Alex Chalk
Main Page: Alex Chalk (Conservative - Cheltenham)Department Debates - View all Alex Chalk's debates with the Home Office
Domestic Abuse Bill (Ninth sitting)
Alex Chalk ExcerptsTuesday 16th June 2020
(3 years, 10 months ago)
Public Bill CommitteesRead Full debate Domestic Abuse Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 16 June 2020 - (16 Jun 2020)
Alex Davies-Jones
Diolch, Ms Buck. I will be brief. I do not want to repeat the powerful words of my hon. Friend the Member for Birmingham, Yardley, but it is important to make the point that previous sexual behaviour is not, and should never be, taken as evidence of consent to a particular encounter. Neither should experience of or interest in any particular act be used to suggest that it is possible for someone to consent to their own murder, as has been the case in the past.
My hon. Friend the Member for Hove said that the media are complicit in sexualising and sensationalising horrific acts of violence and causing huge further trauma to the families of victims. Those victims—mainly women—and their families need anonymity.
A BBC study in 2019 found that more than a third of UK women under the age of 40 had experienced unwanted slapping, choking or gagging during consensual sex. Of the women who experienced those acts, 20% said they had been left upset or frightened. It is vital that women’s voices should no longer be silenced.
The Parliamentary Under-Secretary of State for Justice (Alex Chalk)
It is once again a pleasure to serve under your chairmanship, Ms Buck. I thank colleagues for those helpful and powerful contributions. I want to begin my remarks by echoing a point that was made: we should not be shy in this place about making observations that are sometimes uncomfortable.
It seems to me a fact that there is a worrying and increasing normalisation of acts that are not just degrading but dangerous. Because we live in a liberal, open, tolerant society we of course do not want to step into the bedroom. We do not want to intrude into people’s private affairs, but when what they do leads to someone’s death we should not have any compunction about taking the steps necessary, first to ensure that people are safe, secondly to ensure that justice is done, and thirdly to send a message: if someone wants to behave in that way, when the consequences come to pass, on their head be it.
I am grateful to the Opposition Front-Bench spokespersons for making the case for the new clauses. Before addressing those in detail, I pay tribute, as others have, to my hon. Friend the Member for Wyre Forest, who is the constituency MP of Natalie Connolly and her family, and to the right hon. and learned Member for Camberwell and Peckham. They have run a formidable campaign and have engaged closely and constructively with the Government. I pay tribute to them for that.
Peter Kyle
The Minister is making a good point. As he knows, the opportunity to amend legislation does not come up often, and we often do not get the chance to amend the perfect piece of legislation. Using all his wit, experience and erudition, he is able to find the failings in the new clause, but a principle is at stake. If he is saying that this is not the ideal piece of legislation or method to achieve those aims, will he spend a bit of time telling us what is, whether he will back it and whether he will make it happen swiftly?
Alex Chalk
I invite the hon. Gentleman to listen carefully to what I say in due course, and I hope that he will not be unhappy—
Alex Chalk
Disappointed—thank you. Do you want to make the speech?
The concern with the new clauses, among other things, is that they do not necessarily replicate the dictum in Brown. To those who are not familiar with this, a case more than 20 years ago, Crown v. Brown, laid down some case law—a point adverted to by the hon. Member for Birmingham, Yardley—that we recognise needs to be clarified. The point that I will develop in due course, which I think will find favour with the hon. Member for Hove, is that that is precisely what we intend to do. The concern is that these new clauses, for the reasons I have indicated—I will not go into any detail on new clause 5, because it is a similar point that I would seek to make—limit the application of the principles in Brown to offences that occur in a domestic abuse situation. I heard the hon. Member for Birmingham, Yardley say sotto voce, “Isn’t a Tinder date an intimate personal relationship?”. The reality is—I speak as someone who has defended as well as prosecuted—that the job of a defence advocate is to find whatever wiggle room there is in the law. Our job here is to close that down.
As I have indicated, the prosecution would have to show also that this activity was either not consensual, or was consensual and also amounted to domestic abuse. Again, defence counsel will be seeking to ask, “Is this really domestic abuse in circumstances where it is consensual?”. You can immediately see the arguments that would be made in court. The key is for us to close that down and give practitioners—but, more importantly, people—absolute clarity about what is and what is not acceptable. As I said at the outset, we need to ensure that any change made is clear, and does not inadvertently create loopholes or uncertainties in the law.
I invite the hon. Member for Hove to accept that despite the difficulties, we have been anxiously and actively considering for some considerable time how we can best ensure greater clarity in the law. We aim to set out the Government’s approach in time for Report.
Peter Kyle
On behalf of the Opposition Front Bench, I thank the Minister for his comments and the considered way he made them. We particularly thank him for the timeframe he outlined. Making a statement before Report is incredibly important; we need to move swiftly. The Minister knows better than anyone that if the same thing happened to one other person in the coming weeks, it would be an absolute travesty, so we need to make sure that these loopholes are dealt with quickly.
Alex Chalk
I hear what the hon. Gentleman has said, and I leave it where it stands. I understand and I agree. I turn to new clauses 6 and 7. Those who have argued passionately in respect of the so-called rough sex defence will acknowledge that perhaps this point is contingent on that. There are also real practical difficulties with new clauses 6 and 7. Let me develop them briefly.
New clause 6 requires the personal consent of the personal Director of Public Prosecutions where a charge or plea less than murder, for example manslaughter, is applied or accepted in cases of domestic homicide. That sounds unobjectionable. It would be perfectly sensible if the DPP was readily able or had the capacity to give that kind of personal consent. However, there are practical problems with it. Let me set out the context. A statutory requirement of this nature is, and should be, extremely rare. It should only be imposed where a prosecution touches on sensitive issues of public policy, not simply sensitive issues, which are legion in the criminal justice system. The only recent example of this consent function applies to offences under the Bribery Act 2010, and last year, a Select Committee undertaking post-legislative review of the 2010 Act recommended that the requirement for personal DPP consent be reconsidered.
We have to acknowledge that the Crown Prosecution Service handles a high volume of serious and complex casework nationwide, and it is important that prosecutors have the confidence to take their own legal decisions. Introducing requirements for personal DPP consent could serve to undermine or frustrate this approach. It would also, I am bound to say, potentially sit uneasily alongside other very difficult decisions that prosecutors have to make. Suppose, for example, in the context of a terrorist prosecution, that because of the way the evidence emerged, or because of new lines of enquiry, a decision was made to take the defendant off the indictment in respect of a bomb plot, but the prosecution said, “We are going to continue to prosecute him in respect of possession of materials that might be of assistance to a person planning an act of terrorism.” These are immensely difficult and sensitive decisions. However, there is neither the capacity nor the wherewithal for the DPP to make those personal decisions all the time.
It is sad to note that there is a high volume of cases involving domestic homicide, as the hon. Member for Birmingham, Yardley well understands. It means that charging decisions need to be made urgently, and sometimes at a speed, where no personal DPP involvement is possible.
These considerations apply equally to cases in which a lesser plea may be accepted. If pleas are offered in court, prosecutors are required to make a decision in an incredibly short period of time after speaking with the victim’s family, and the DPP could not be involved in that level of decision making. I invite the Committee to consider the circumstances, supposing it is in court: because of the way that the evidence has come out, there is the consideration of whether a lesser plea should be accepted. The hon. Lady pointed out that this does not always happen, but if the family have been properly consulted, it is no kindness to that family to say, ‘Do you know what? We’re not going to make a decision on this, which would let you begin to heal and put this behind you. We’re going to put this off for two or three weeks while the DPP has to consider it.’ Court proceedings will be suspended awkwardly, and the poor family will be left hanging.
Forgive me for stating the obvious, but it bears emphasising that the real remedy is for good prosecutors––the overwhelming majority are good and do their duty with diligence, conspicuous ability and conscientiousness– –to liaise with the family in a compassionate and inclusive way. I understand the desire for additional scrutiny in such significant and sensitive cases, but I assure the Committee that the Crown Prosecution Service already has systems in place to check and challenge decision making in these circumstances. Internal CPS policies require that chief crown prosecutors are notified of any and all homicide cases. It is likely as well that domestic homicides would be subject to a case management panel with a lead lawyer and either the deputy chief crown prosecutor or the chief crown prosecutor, so there is senior oversight.
The point that I really want to underscore is that because cases of domestic homicide inevitably have a lasting and dreadful impact on victims’ families, people deserve support and compassion, particularly as criminal proceedings can be upsetting and difficult to follow. Procedures are in place to ensure that is given. Where there is an allegation of murder, the police very often appoint a family liaison officer as a matter of course to assist with the process. I speak as someone who has prosecuted several murder cases. The role that liaison officers play is absolutely fantastic. Otherwise, the poor family turn up in court with no idea what an indictment is, wondering “What on earth is this examination-in-chief stuff? What is this plea and trial preparation hearing?”. The liaison officer role is invaluable, and needs to be supported by prosecutors speaking to family members, as they increasingly do.
Jess Phillips
Like the hon. Gentleman, I have been involved in a number of murder cases, and he is right that family liaison officers are worth their weight in gold. Does he think that there needs to be a more formalised link between the prosecutor and the family liaison officer—a referral pathway, or standard of practice that had to be met in each case? It could help us work towards having a less patchy approach if we had a formalised target.
Alex Chalk
There are, in fact, formal arrangements in both spheres. Family liaison officers have to operate within certain guidance, and in my experience, by and large, they do so extremely well. At the risk of stating the obvious, it comes down to the calibre, kindness and empathy of the individual. In my experience, they are very good at their job and play an invaluable role.
As for the prosecution, as little as 20 years ago, there used to be almost a benign disdain for witnesses. Prosecutors simply did not engage with them. That does not happen now; they meet witnesses and family members before the trial begins. Very often, they will speak to them at the end of the day to explain what has happened. The relationship between prosecutors and family liaison officers tends to dovetail extremely effectively. I do not think that there is a need for further guidance. The key is to ensure that both parts of the criminal justice system—the police and the prosecution—do their job. In my experience, people are increasingly extremely conscientious in that regard. That is important, because people’s sense of whether they have got justice will often depend on the conversations they have at the end of the day, when the matter has been explained to them.
Peter Kyle
I have never heard a journalist wanting the rule that prevents reporting from naming victims of sexual violence overturned. Has the Minister?
Alex Chalk
What I can say, from my experience in court, is that it is not unusual for the press to seek to overturn reporting restrictions where they are imposed at the discretion of the court, so although the hon. Gentleman may be right that in fact there is not a particular drumbeat in respect of sexual offences, I hope that the Committee will not be gulled into thinking that the press do not very often seek to overturn reporting restrictions that are imposed. The arguments that are made are, “Why should we be having secret justice?”, and so on. Those arguments are very often dispatched by the court; they are considered not to be valid, and then they are sometimes taken on appeal and so on. The only point that I am seeking to make is that we must be careful in this area and strike a balance, so that we do not find ourselves bringing the law into disrepute.
Christine Jardine
As a journalist and as someone who has taught law for journalists, I point out that although we might challenge discretionary interdicts and super-interdicts—I cannot remember what they are called in England—the principle of defending the anonymity of victims of sexual assault, sexual crimes, is never challenged in court. The only challenge is to discretionary non-identification where a public interest case can be made for that being overthrown. I find it difficult to believe that the press would actually want victims of domestic abuse named in the papers, unless there was some outlandish public interest.
Alex Chalk
The hon. Lady is absolutely right that of course it is not open to a journalist to seek to displace the reporting restrictions that have been imposed by force of statute. I was seeking to make the point, which I do not think she disagrees with, that it is not uncommon for the press to suggest that a court, in imposing reporting restrictions in an individual case, has overreached itself, gone beyond the bounds, and misapplied the balance. Sometimes, by the way, those applications are upheld at first instance or on appeal.
There is a judgment to make, and we have to recognise that there is a particular public interest, when the allegation is of sexual violence, in taking the step of exceptional interference. That justification exists in relation to sexual offences. However, we have to take great care before extending it further, not least because—of course, domestic violence and domestic abuse are incredibly serious, for all the reasons that we have expressed—women, and it is usually women, can be victims of all sorts of other offences. Then it becomes a question of how far we go—where do we draw the line? That is something that requires careful thought.
I apologise to members of the Committee for taking so long to explain the Government’s position on the new clauses. As I have sought to explain, we fully understand the anguish and hurt felt by the family of Natalie Connolly and many others, and, as lawmakers, we will and should do what we can to minimise such anguish on the part of bereaved families in the future. For the reasons that I have set out, the Government cannot support a number of the new clauses, but as I have indicated before, we expect to set out the Government’s approach in respect of the rough sex issue in time for Report. In those circumstances, I respectfully invite the hon. Member for Birmingham, Yardley to withdraw the new clause.
Jess Phillips
I will withdraw the new clause. I am very pleased to hear that there is an intention to deal with the matter on Report, and I speak entirely for the hon. Member for Wyre Forest and my right hon. and learned Friend the Member for Camberwell and Peckham in that regard. I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
Alex Chalk
Main Page: Alex Chalk (Conservative - Cheltenham)Department Debates - View all Alex Chalk's debates with the Home Office
Domestic Abuse Bill (Tenth sitting)
Alex Chalk ExcerptsTuesday 16th June 2020
(3 years, 10 months ago)
Public Bill CommitteesRead Full debate Domestic Abuse Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 16 June 2020 - (16 Jun 2020)
The Parliamentary Under-Secretary of State for Justice (Alex Chalk)
May I begin by thanking the hon. Member for Birmingham, Yardley for a characteristically forceful argument? At the start, I acknowledge this: non-fatal strangulation is a wicked crime and deeply unpleasant. It is unpleasant for the reasons the hon. Lady set out: it is calculated to degrade and to terrify, and in the course of doing so to ensure that the victim has that profound sense that this could be it—their time could be up. That is why it is such a cruel, offensive and unpleasant crime. I also say by way of preliminary remarks that I am aware of the Centre for Women’s Justice campaign for this new offence of non-fatal strangulation. I wish to put on record my gratitude for their written evidence to the Committee.
I understand the concerns that have prompted the new clauses and I will address them directly. Before doing so, I want to say a little about the existing provisions in the law. In fairness, the hon. Lady did refer to them but there are a couple of points that would assist the Committee if they were teased out a little further.
Several offences can already cover non-fatal strangulation and they range in seriousness from common assault, also known as battery—my hon. Friend the Member for Hertford and Stortford, a magistrate, will know that well—to attempted murder. Within that spectrum, there remain a number of other offences referred to by the hon. Member for Birmingham, Yardley. Strangulation could also be part of a pattern of behaviour amounting to an offence of controlling or coercive behaviour; I shall come back to that in a moment. There is also assault occasioning actual bodily harm, grievous bodily harm, or section 20 assault, and grievous bodily harm with intent, or section 18 assault.
I want to step back for a moment to consider a non-domestic context, just to make some of this clear. For the sake of argument, suppose there is a queue outside a nightclub and somebody wishes to queue barge. He steps in and decides to grab the victim by the throat, throttle them and push them up against the wall. As the hon. Member for Birmingham, Yardley indicated, if that left no marks but the complainant was prepared to make a complaint to the police in the normal way, it is likely that would be charged as a battery. She is right that the charge would have to be laid within six months. It would be heard before the magistrates court—again, she is absolutely right—and would carry a custodial penalty. Even if no mark is left, that assault—it could be a punch on the nose but it could also be strangulation—would be covered in that way.
It is worth emphasising that, if that throttling or that strangulation was carried out in a more extreme way such as to leave marks, it is likely that would cross the threshold of harm which is more than merely transient or trifling. That might sound like rather archaic language, but that is the threshold for ABH. Why is that important? Assault occasioning actual bodily harm is not limited to being tried in the magistrates court; it can be tried on indictment in front of judge and jury and there the sentencing power is a full five years’ custody.
The reason I mention that is because if there is one advantage that has come from these things, it means people are much better able now to gather evidence than they were in the past. It used to be the case that you had to go down to the police station, the force medical examiner had to photograph you and so on. Now, people can get those photographs at the time. The mere fact that two, three, four or five hours later those marks may have gone matters not a jot. If the individual can show that the assault occasioned actual bodily harm, that can lead to trial on indictment and a very serious penalty.
To continue with my example of what happens in the nightclub queue, if the throttling went further and it led to some of the dreadful injuries the hon. Lady referred to—a fractured larynx, tinnitus, neurological injury leading to droop or PTSD—although it is a matter for the independent prosecutor, it is likely that would be charged as grievous bodily harm. If it is grievous bodily harm with intent, because all the surrounding circumstances indicated that that was intended given the harm done, the maximum penalty for that is life imprisonment, and that is an indictable-only matter.
That is the law as it exists at present, and the same legal principles apply in a domestic context as apply in the non-intimate context of a fight in a pub queue. The hon. Member for Birmingham, Yardley made the point: “Well, that’s all terribly interesting, but what about elsewhere in the world?” It is important, while we are mindful of our peers, particularly those in the common law jurisdictions, that we got ahead of the game to a considerable extent with section 76 of the Serious Crime Act 2015. It is worth taking a moment to consider what that ground-breaking piece of legislation introduced—the coercive control stuff.
We are guilty in this place of sometimes saying, “Right, we’ve passed this. Move on. What’s the next exciting and shiny piece of legislation we can pass?” Section 76 is of enormous import in terms of providing prosecutors—I will come to the hon. Lady’s point in due course about whether prosecutors are doing the right thing—with the tools that they need to protect victims. Section 76 says that if the defendant
“repeatedly or continuously engages in behaviour towards another…that is controlling or coercive”,
at a time when the perpetrator and the victim are personally connected, and the behaviour has a serious effect on the victim and the defendant
“knows or ought to know that the behaviour will have a serious effect”
on the victim, that is a criminal offence, punishable by up to five years’ imprisonment.
I wish to dwell on that for a moment, because behaviour is said to have a serious effect within the meaning of that section. It can be proved in two ways. First, if it causes the victim to fear on at least two occasions that violence will be used, or it causes the victim serious alarm or distress, which has a substantial adverse effect on their day-to-day activities. I mention that point because if, as the hon. Lady says, and I am absolutely prepared to accept it, more often than not in an intimate context this is part of a pattern of behaviour—all too often an escalating pattern of behaviour—the tools exist, should the prosecuting authorities seek to use them, to seek the conviction, punishment and disgrace of the perpetrator.
The question then arises of whether police and prosecutors are using the levers available to them. That is a really important point, and it is the central message that I take from the hon. Lady’s speech, which was effectively saying: “I recognise that there are a whole load of statutory provisions here, but why don’t we create a new statutory provision to really focus minds and ensure that this appalling behaviour is prosecuted?” I understand that argument, but we have to ensure that we do not, in that sensible endeavour, risk confusion in the law.
I will say one final thing about the current state of play within the law. There is, as the hon. Lady indicated, a specific offence under section 21 of the Offences Against the Person Act 1861, which makes it an offence to
“attempt to choke, suffocate, or strangle any other person, or…to choke, suffocate, or strangle”
a person in an attempt to render that person
“insensible, unconscious, or incapable of resistance”
with intent to commit an indictable offence. Typically, that is strangling someone in order to rob them, to steal or whatever it may be. I am aware that there can be some evidential difficulties in prosecuting a section 21 offence, particularly if there is no evidence, or insufficient evidence, of injuries, such as reddening and minor bruising to the skin. However, that sits in a wider context of the legislation that exists. There are other options for prosecutors to fill the gap.
There is a risk too, I respectfully suggest, that creating a new offence could limit the circumstances covered, and create additional evidential burdens when compared with existing offences. In other words, we would potentially have a situation where we created a new offence, and prosecutors said, “Hang on—this look a bit like strangulation to me, so we need to look at this new offence. Do we have all the mental elements—the mens rea and the actus reus of the offence—and can we make them out? If not, we shouldn’t charge,” instead of saying, “Hang on—there are a whole load of offences that we could properly charge: common assault, assault occasioning actual bodily harm, and grievous bodily harm with intent. They might have existed for 150 years, but they do the job.”
The key issue, going back to the point that the hon. Lady raised, is whether police and prosecutors are recognising this as a serious matter, and I will come on to that briefly in a moment. Before I do, though, I wish to say something on the clause as drafted. It is always worth going back to the text. New clause 8 says:
“A person (A) commits an offence if that person unlawfully strangles, suffocates or asphyxiates another person (B), where the strangulation, suffocation or asphyxiation does not result in B’s death.”
Sometimes what is important is what is not said, as opposed to what is said. That on its own, if it suddenly came into law, would be deficient, because it says nothing about whether the offence is triable either way, is indictable only or is summary only. It does not say what the sentence would be. It would be sitting there in splendid isolation. That is not a criticism, but as it is presently drafted, that would be a problem. As I say, that is not a criticism, it is just an observation that we certainly could never pass it in its current form.
Christine Jardine (Edinburgh West) (LD)
I beg to move, That the clause be read a Second time.
I would like to apologise to the Committee in advance: as luck would have it, for the first time in two years of printing things too small for me to read, I do not have my glasses with me. Bear with me and I will do my best.
Christine Jardine
No, that is not what they say. I would like to speak to this cross-party new clause tabled in my name, which would ensure that emergency financial support was available to victims and survivors of domestic abuse across England, in the form of effective local welfare provision. It is supported by the crisis and destitution sector, from the Children’s Society to the Trussell Trust, as well as financial experts, including the Lloyds Bank Foundation for England and Wales, Smallwood Trust and Surviving Economic Abuse.
The Bill, for the first time, acknowledges economic abuse, which creates economic instability and often prevents women in particular from being able to leave an abusive situation, as they lack the financial resources to do so. Defining economic abuse is just the first step. It must be possible to enable those who find themselves in that situation to militate against this form of abuse. The Committee must look at whether we can provide a welfare safety net for all survivors that empowers them.
Local welfare assistance schemes often offer financial assistance to applicants in emergencies. At their best, this type of crisis support works in partnership with other organisations and provides a kind of wrap-around holistic support that other types of welfare cannot, but they are underfunded and underused, and consequently get forgotten.
Without question, cuts to local authority services and changes in the social security system have disproportionately impacted women. That social security system should act as a financial safety net for survivors of domestic abuse, but it does not. Too many survivors are still having to take out payday loans and rely on food banks or, if they are lucky, grants from charities.
Research from Women’s Aid recently found that a third of survivors who left their abusive partner had to take out credit to do so. Smallwood Trust estimates that 70% of their applications for financial assistance are received from women who are fleeing, or have fled, domestic abuse. Given that the Trussell Trust’s most recent food bank figures found an 89% rise in need since the same time last year, with 107% more children needing support, there can be no question but that the welfare safety net for our most vulnerable has gaping holes in it.
Before the creation of local welfare provision, the discretionary social fund, run from the Department for Work and Pensions, was often seen as an essential form of financial support for victims of domestic abuse. Community care grants were often used to enable survivors to establish a new home after a period in refuge accommodation. Since responsibility for those grants has shifted to hard-pressed local authorities, which do not have any statutory obligations to provide this form of support, getting them has become a postcode lottery.
The Children’s Society found that one in seven local authority areas in England now has no local welfare support provided by the council, and that in too many other areas, local welfare provision is far too difficult to access. Some 60% of local authorities had put in place stipulations about routes that had to be taken first before applying for local welfare assistance, including borrowing from friends or family, taking up a commercial loan or using a food bank. That is not acceptable.
Even when a local authority does provide an assistance scheme, Smallwood Trust has suggested that access is often dependent on what time of year one applies for help, and whether the pot is already empty. Analysis of council spending on local welfare provision by the Children’s Society found that in 2018-19, local authorities spent only £41 million on local welfare assistance schemes, out of a possible funding allocation of £129 million for local welfare provision. At their best, those schemes can offer assistance where universal credit cannot. They can be a further source of support while survivors wait for their first universal credit payment, or they can support those not on universal credit who need emergency support, perhaps to buy a new fridge, or a bed for their child, in their new home away from abuse. During the pandemic, some local authorities are even using creative methods to offer emergency financial assistance to vulnerable applicants with no recourse to public funds.
Alex Chalk
I thank the hon. Member for Edinburgh West for the exposition of her new clause and the way she did it, which was of real assistance to the Committee and certainly to me. Again, I absolutely commend and underscore the spirit and intention behind the new clause. I hope to provide some context that she will find reassuring.
Domestic abuse touches the lives of many DWP customers, and the Child Maintenance Service takes the safety of its customers extremely seriously. The new clause seeks guidance; the hon. Lady wants the Secretary of State to issue guidance relating to the payment of child support maintenance where the person with care of the child is a victim of domestic abuse. We have issued guidance already, and we have gone further by actually implementing—guidance is one thing, but it is when it moves on to training that it makes a big difference.
That training feeds into precisely the point the hon. Lady raises in subsection (2):
“Guidance issued under this section must take account of (a) the potential for the withholding or reducing of child support maintenance to constitute economic abuse under section 1(4) of this Act”.
Absolutely. We get that point, and that is precisely what the training is designed to achieve. It has been created with input from Women’s Aid, and it trains caseworkers on domestic abuse to identify the types of abuse, including economic abuse. By the way, that is not optional training; it is mandatory training—that is point one. Point two is that the DWP has introduced a complex needs toolkit, which includes a domestic abuse plan specifically, to give clear steps for a caseworker to follow in order to support customers, and it also outlines the support available to caseworkers. That toolkit is regularly reviewed and strengthened based on customers’ insight.
It may be helpful to the Committee if I set out other ways in which the Child Maintenance Service currently responds to cases involving domestic abuse. This goes to the point raised by the hon. Lady about how victims go about accessing support. First, the CMS can waive the application fee for victims of domestic abuse. Secondly, it provides advice and support to help victims of domestic abuse use the direct pay service where no further charges apply to ensure there is no unwanted contact between parents. Thirdly—picking up a point made by the hon. Lady—the CMS can act as an intermediary for parents to facilitate the exchange of bank details and ensure that personal information is not shared. Fourthly, the CMS will provide information to parents on how to set up a bank account with a centralised sort code, which avoids parents being traced. Fifthly, where the parents have reported domestic abuse, agents are trained to signpost clients to additional sources of support. I do not suggest that it is a one-stop shop, but, none the less, they are trained in what support is out there.
The bottom line is that the CMS will not tolerate parents failing to meet their obligations to support their children. Where a parent fails to pay in full and on time, enforcement action will be taken. I mention enforcement because the second limb of subsection 2 says:
“Guidance issued under this section must take account of…(b) the need for enforcement action to prevent non-payment”.
Let me turn directly to enforcement. The Child Maintenance Service has a range of strong enforcement actions at its disposal. They include deducting directly from earnings; seizing funds directly from a paying parent’s bank account, either as a lump sum or as regular payments; and a good deal in addition.
Jess Phillips
I deeply respect that the Minister is reading out exactly what should happen, but has he ever tried to get money out of the CMS for one of his constituents?
Alex Chalk
I have. I am perfectly prepared to accept that no organisation always works precisely as one might like. That is inevitably the case, but I am not suggesting that that is my usual experience. By and large, we have been able to deliver for my constituents in Cheltenham, while recognising, as I do, that there is always room for improvement. Perhaps we shall leave it there.
The Government have gone further and extended the powers to cover joint and certain business accounts, removing the opportunity for paying parents to put their money beyond reach. Where appropriate, the Child Maintenance Service will use enforcement agents to seize goods, forcing the sale of the paying parent’s property. The Child Maintenance Service may also apply to a court to have the paying parent committed to prison or disqualified from driving. In addition, we have introduced the ability to disqualify non-compliant parents from holding or obtaining a British passport, which we believe will act as a strong deterrent.
The impact of all that is important, and this goes to the point made by the hon. Member for Birmingham, Yardley. Of course, we have our anecdotal experience—mine, by and large, has been pretty good, but I accept that other colleagues will have had different experiences—but it is important to look at the data. Compliance with the CMS Collect and Pay statutory scheme has increased from approximately 57% in the quarter ending December 2017 to 68% in the quarter ending December 2019, according to Child Maintenance Service statistics to December 2019. In addition, 723,500 children are covered by Child Maintenance Service arrangements, reflecting an increase of 158,300—almost 30%—since the quarter ending December 2017. That is from the same statistics source.
Given all those measures, the central point is that, while the new clause seeks guidance, what is already in place is guidance and training, and that training is informed by Women’s Aid, as I said. In the circumstances, our view is that no new clause is necessary at this stage, because the Child Maintenance Service already has sufficient enforcement powers and has further strengthened its procedures, training and processes to support customers who suffer domestic abuse.
We will, however, continue to monitor the impact of Child Maintenance Service enforcement powers, as well as the support provided to help domestic abuse victims to use the service safely. The hon. Member for Edinburgh West, who clearly takes a close and principled interest in this matter, will watch that closely but, with that assurance, I hope she feels able to withdraw her new clause.
Christine Jardine
I thank the Minister for his reassurance but, as the hon. Member for Birmingham, Yardley said, he describes the ideal—it is not how we find it works. If we could get closer—just closer—to the ideal, we might all be satisfied. However, given his reassurance, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 21
Duty of the Secretary of State to take account of matters relating to gender
“It shall be the duty of the Secretary of State in performing functions under this Act to take account of the point that domestic abuse is a subset of violence against women and girls, which affects women disproportionately.”—(Jess Phillips.)
This new clause establishes the gendered nature of domestic abuse in statute.
Brought up, and read the First time.
Domestic Abuse Bill (Eleventh sitting) Debate
Full Debate: Read Full DebateDepartment: Ministry of Justice
Alex Chalk
Main Page: Alex Chalk (Conservative - Cheltenham)Department Debates - View all Alex Chalk's debates with the Ministry of Justice
Domestic Abuse Bill (Eleventh sitting)
Alex Chalk ExcerptsWednesday 17th June 2020
(3 years, 10 months ago)
Public Bill CommitteesRead Full debate Domestic Abuse Bill 2019-21 Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Public Bill Committee Amendments as at 17 June 2020 - (17 Jun 2020)
Peter Kyle (Hove) (Lab)
I beg to move, That the clause be read a Second time.
It is great to serve under your chairmanship again, Mr Bone—welcome back to the Committee. I rise to speak to new clause 25, on the repeal of provisions about defence for controlling or coercive behaviour offence.
Domestic abuse against disabled people is simply not discussed enough. They are hidden victims. When abuse against disabled people is raised, it is usually in the context of adult safeguarding processes, which labels disabled people as vulnerable adults and which disabled survivors and specialists in the field tell us is failing them.
The new clause reflects 10 years’ worth of casework by Stay Safe East, one of only two organisations in England and Wales led by disabled women supporting disabled survivors, and its partner organisations, in an advisory group on domestic abuse and disability. That is two specialist disability and deaf services for a disabled population of 10 million people.
The data on abuse against disabled people is grim. Disabled adults are at least 1.5 times more likely to be a victim or survivor of violence than non-disabled adults. Disabled women are at least three times more likely to experience domestic abuse from family members, be that their partner, parents, siblings, adult children or other family members. Some of the abusers will also be the person’s carer. It is highly likely that those figures are an underestimate, as the only example—the crime survey—is not in an accessible format for deaf and disabled people to participate in, and many survivors cannot access external help.
The rate of domestic abuse against disabled men is also higher than against non-disabled men, but disabled women are more likely to experience repeated, sustained and more violent abuse than disabled men. Disabled children, and particularly disabled girl children, are more likely to experience sexual violence and physical abuse than non-disabled children. What is more, disabled people may have other people in their lives who have a level of control, whether that is unpaid carers or paid carers from an agency, or a personal assistant.
This is the case for disabled women across all communities, of all ages and all backgrounds. Disabled women face specific forms of abuse at the hands of partners, family members and paid or unpaid carers: control of communication; control of medication; restricting access to disability support; using a person’s impairment to control them—for example, playing on their mental health or taking advantage of the fact that they have learning disabilities—forced marriage on the grounds that the partner “will look after you when I am gone”; and constantly abusing women because of their impairment. That, in itself, is a form of hate crime.
Abusers hold the very real threat that, “They will take your kids away from you” over a disabled woman. In the experience of both Stay Safe East and SignHealth, a deaf-led service for deaf survivors of domestic abuse, deaf or disabled mothers are at much higher risk of losing their children through the courts or other domestic abuse. In some cases, the courts opt to place children in the care of an abusive father rather than letting them live with a disabled mother, who is considered a poor parent for reasons simply of her disability, and providing support to keep the children with her.
Unfortunately, disabled victims who are able to speak out against this face multiple barriers to gaining safety and justice. Poor access to refuges or emergency accommodation; voice phone-only contact with many services, which excludes deaf women and those without speech; services not set up to deal with victims who need long-term support; a lack of quality, accessible information or British Sign Language interpreters; no access to counselling—the list is very, very long.
Worst of all is not being believed by police, social workers or health workers because they are disabled women, which is something that is frequently reported by deaf and disabled women who approach the two specialist organisations. A little-known clause, now subsections 76(8) and (9) of the Serious Crime Act 2015, introduced what has been dubbed “the carers’ defence” by disabled survivor groups. It introduced a worrying caveat into what was a piece of legislation to protect victims of abuse, by allowing an abuser who is facing charges of coercive control to claim that they were acting in the best interests of the victim.
That provision was originally brought to the attention of legislators through the efforts of Sisters of Frida, a disabled women’s collective, and Stay Safe East, but it became part of the 2015 Act. Although the clause may have been introduced with the best of intentions, to avoid unnecessary prosecution of carers who were, for example, preventing somebody with dementia from going out alone because they were at risk, there is a real risk that it could be used by abusers to claim that they are acting in the best interests of somebody they are controlling with malicious intent.
That is especially true of people who might be seen to have capacity issues, such as deaf people, people without speech, people with cognitive issues as a result of a stroke, people with learning difficulties and people with mental health challenges. That, of course, is a substantial number of potential victims among those who face the greatest barriers to safety and getting justice.
For example, the parents of a young woman with mild learning disabilities stopped her going out alone, only letting her go to college with a chaperone, on the grounds that she was at risk from strange men. The parents had failed to teach their daughter about safe relationships, had removed her from personal, social, health and economic education lessons in school, and had controlled her friendships with her peer group. The family claimed that they were protecting her. The young woman initially believed that her parents were doing their best for her, but as she grew up she came to realise that she could make her own decisions. It subsequently emerged that, on top of all the coercive control, the family were taking the young woman’s benefits, and there was also physical abuse.
The section gives a clear message to disabled survivors and victims generally: “Your decisions are not your own, and abusers can claim to be acting in your best interests.” “For her own good” is an expression we often hear abusers using, even if they are abusing that very interest, and the courts will let them get away with exercising abuse of power over their victims.
In a context where disabled survivors are the least likely to speak out, and where, if a case does go to court, the chance of a successful outcome for the victim is very low, especially for disabled victims, that is not the message that we want legislation on domestic abuse to give to survivors or, for that matter, the police, the Crown Prosecution Service or abusers. The Care Act 2014 and the Mental Capacity Act 2005 both provide sufficient protection for genuine carers who face malicious allegations. A law to protect victims is not the place for a clause that protects potential abusers.
All too often, concerns about disabled victims are ignored. The Government now have a real opportunity to listen, and we urge the Minister to take full advantage of that opportunity. We are talking about a group with many intersectional and very complex challenges, which provide additional areas for abusers to exert control and abuse.
The Parliamentary Under-Secretary of State for Justice (Alex Chalk)
This is the first of two debates on different aspects of the controlling or coercive behaviour offence in section 76 of the Serious Crime Act 2015. As the hon. Member for Hove has indicated, new clause 25 seeks to repeal the defence in section 76(8), which has been labelled by some as the “carers’ defence”.
Currently, the coercive or controlling behaviour offence allows for such a limited defence if the accused believes that they were acting in the best interests of the victim. It is important to note that the accused would also need to demonstrate to the court that in all the circumstances of the case their behaviour, while apparently controlling, was reasonable. This defence is intended to cover cases, for instance, in which the accused was the carer for a disabled spouse, and for medical reasons had to compel their partner to take medication or to stay at home for their own protection.
It is worth taking a moment to consider the sorts of circumstances in which that defence might apply. Imagine a situation in which neighbours walk past a home and see someone who wants to get out of the front garden and on to the road, and is in some distress at not being able to do so. That neighbour calls the police, and the police then investigate. It emerges that the person trying to get on to the road is, very sadly, suffering from dementia, and their partner is a person of unimpeachable integrity and good character—a decent, loving partner of many years’ standing who has shown nothing but care and compassion for that individual, but who is concerned that if they get out on to the road, they will be a danger to themselves and others. Is it seriously to be suggested that that person should be at risk of conviction, punishment and disgrace?
Jess Phillips (Birmingham, Yardley) (Lab)
That is not what has been outlined. It has already been clearly stated that provisions in the Mental Capacity Act 2005 would allow for that exact defence. Also, can the Minister not imagine a situation in which if a victim in that exact circumstance says she is a victim of domestic abuse, that might be the case?
Alex Chalk
Of course it might be the case, but the important thing is that this defence allows a proper opportunity for a tribunal of fact to consider that, and I think it is absolutely right that it should do so. It is worth noting that under section 76 the burden is on the individual to advance that defence, and for a tribunal of fact to then consider whether it has been disproved. In other words, if that individual advances something that is utterly implausible, a jury—or indeed a bench of magistrates—would have little difficulty in exposing it as such.
Peter Kyle
It is important to note that we are leaping straight from a hypothetical, in which a woman with dementia is trying to climb over a fence, to court. However, between those two stages we have the first responders. Having experienced the training, care, compassion and expertise of the frontline responders in the prevention team of Sussex police, I would find it extraordinary if a frontline responder could not tell the difference between these scenarios, or certainly determine whether there is enough evidence to pursue the kind of prosecution that the Minister is describing.
Alex Chalk
We have to be very clear about this. If an individual does not have that defence, considering the elements of section 76, we would be left with a person who is apparently being caused some distress—as would be evident to the first responder, or indeed to a police officer, who might have to effect an arrest—and the distress would appear to have been caused by that person’s liberty having been restricted. In those circumstances, unless the individual has the defence that they were exercising proper control in the interests of the other person, they are at risk of being arrested and prosecuted. That would be a serious concern, would it not?
I should also add—I do not think this point is controversial—that there is an exemption within section 76 concerning under-16s. In other words, where people are in a position of responsibility for somebody who is under the age of 16 and may have to inhibit that person’s liberty, that is considered perfectly understandable and justified. The argument would therefore be this: why is it that in circumstances where, sadly, an individual is at risk and vulnerable, it should not be open to that carer—who everyone accepts is loving, decent and caring—to say that this was in the interests of the individual?
I accept the hon. Gentleman’s premise that it is possible that some people would seek to advance an unmeritorious defence. That is absolutely right, but I respectfully say to him that when he says, “The courts let them get away with it,” he is unfairly labelling the courts. In my opinion, the courts have shown themselves well able to see through a spurious defence. The carer who seeks to try it on and to abuse this proper defence will be given short shrift by a bench of magistrates, or indeed by a jury. We should trust juries and courts to do justice in each case.
Jess Phillips
Why does the Minister not think that the courts and juries can be trusted on the rough sex defence?
Alex Chalk
Because juries have to have a rough sex defence to consider. That is our job. Our job is to create the statute.
Alex Chalk
No, it is not the same at all. If the hon. Lady will listen for a moment, the point is that there is, on the face of a statute, a defence that the jury can consider. They get to consider it only if a judge is satisfied that there is a prima facie defence—in other words, if what the defendant is advancing is patently and transparently unmeritorious, it may well not even go to a jury. A judge might say, “This is such a load of old nonsense that it doesn’t even cross the threshold for a jury to decide.” It is simply where there is a prima facie case. We should trust juries to say, “Is there something in that, or is there not?” It is not for us to adjudicate in every single case. Trust juries; trust the people. It is different from the point that the hon. Lady was making about rough sex, because there was a lacuna in the law. Our job is to fill the lacuna and then leave it to juries, who have shown for many centuries that they are well placed to do justice in a specific case.
I will make a final point on this issue, because I do not want to dwell too long on it. If the policy were not in place, there is a danger that the same people that the hon. Member for Hove quite properly wants to stand up for, and who we want to stand up for—namely, people with disabilities—could be disadvantaged if people take the view of, “Hold on a moment. By doing what I think is genuinely and objectively in the best interests of an individual, I am at risk of conviction, punishment and disgrace. Do you know what? Why on earth should I be doing that? Why should I be putting myself at risk in that way.” We have to ensure that we do not inadvertently, and despite the best intentions, find ourselves making life more difficult for the people we want to support.
Peter Kyle
The Minister is a very effective advocate, but the bottom line is that all the agencies representing frontline victims and survivors are speaking with unanimity. They want the law changed and the new clause struck off, because they say it is affecting their service users. There is no organisation out there working with service users that is defending the clause; it is only him.
Alex Chalk
With respect, that is not a fair characterisation. Parliament had the opportunity to consider the Bill in 2015. It went through Committee stage in this House, and it went through the House of Lords. It was Parliament’s will that it should exist. What is now being suggested, less than five years later, is that we should sweep away something that was there in the past. In my respectful submission, the case for that has not been made.
Of course, all matters are considered with care, particularly matters of this kind of sensitivity, but we have to be alive to the fact that sometimes, if we remove such a defence, we risk making the position far worse for the people we want to protect. We see that time and again when people are concerned that if they are not given the opportunity to advance their defence and simply to say, “Listen, you decide whether I have got this wrong.” If they do not have the option at least to put forward their defence so that 12 people who have no prior knowledge can make a fair decision, it would be unfair on them and would risk unfairness to people with disabilities.
The final point that I want to make is that the equivalent domestic abuse offence in Scotland contains a similar defence, under section 6 of the Domestic Abuse (Scotland) Act 2018, as does the proposed new domestic abuse offence in Northern Ireland, which is clause 12 of the Domestic Abuse and Family Proceedings Bill, currently before the Northern Ireland Assembly. This is not an outlier provision, I respectfully submit.
Notwithstanding the very proper concerns expressed by the hon. Gentleman, I invite him to consider that, set in a wider context, seeking to exclude the provision is not necessary. In the light of my explanation, I invite him to withdraw the new clause.
Jess Phillips
I will discuss some of the potential foibles of the 2015 Act, which we have already mentioned. I say graciously before I start that Parliament does not always get everything right, and I loathe the culture in which we have to call something a U-turn, when actually evidence and other things change, different things come to light and people change their minds. That is okay, but we are not allowed to do that in politics without it being labelled a certain thing. I totally support the legislation but, specifically in the coercive control measures, there are some errors. In reality, only time and test ever measure these things.
In discussing the new clause, I will focus on post-separation abuse, but I will first talk briefly about economic abuse by way of context, as they are closely linked in this instance. I welcome the inclusion of economic abuse in the definition of domestic abuse in the Bill, recognising how that is often hidden but incredibly destructive as a form of abuse. The Bill now acknowledges and names the experience of the victims and their families, supporting them to find justice by holding a perpetrator to account across a full range of abusive behaviours.
That move has been hugely welcomed, particularly by organisations that work with victims and see day in, day out how perpetrators use economic abuse to exert control, whether to trap the victim so that they cannot afford to leave, or to force them into destitution after they have left, so that they are unable to move on and rebuild their lives. One of those organisations is the UK charity Surviving Economic Abuse, which exists solely to raise awareness of economic abuse and to transform the responses to it.
The term “economic abuse” may be new to domestic abuse legislation, but that form of abuse is certainly not new. One in five women in the UK report having experienced economic abuse from a current or former intimate partner, and 95% of domestic abuse victims report that they have suffered economic abuse. It is widespread.
Economic abuse makes the victim dependent on the perpetrator and limits their choices and their ability to leave. The behaviour is insidious and might not be recognised by the victim. The perpetrator might introduce it as an offer to help, or to take away the worry and burden of dealing with finances, seemingly in a caring way, or they might have simply assumed control through force, threats and coercion.
Through economic exploitation, the perpetrator looks to benefit from the victim’s economic resources and, in so doing, sabotages their economic independence. That exploitation may consist of things such as demanding that the victim alone pays the household bills, while the perpetrator spends their own money on whatever they like. The perpetrator may also build up debt in the victim’s name, through coercion or fraud, or steal or damage the victim’s property, which then has to be replaced. In my experience, the thing that is seen the most is the build-up of debt in someone’s name; certainly that is the thing that people struggle to live with thereafter.
This all has a hugely destabilising impact on the victim’s economic wellbeing and, again, limits their choices and ability to leave. Economic abuse can leave victims trapped and destitute, either while in a relationship with the perpetrator or post separation as they navigate life with inescapable debt, insecure housing and financial hardship. Economic safety underpins physical safety. Building an independent life can, for many victims of economic abuse, feel impossible.
Why is the new clause vital? To answer that question, I want to talk about economic abuse following the end of intimate partner relationships. Economic abuse does not simply stop when the relationship ends. Control continues through joint resources, and in fact the perpetrator can still sabotage the victim’s resources even if they do not know where the victim is. An abuser might wipe out money in a joint account that a victim relies on, or refuse to pay an overdraft so that penalties build up and the victim cannot afford to continue paying it. The end of a relationship does not prevent the abuser from taking away a victim’s home, interfering with their ability to work and earn money, or constantly taking the victim to court in connection with their children. It also does not mean that the abuser suddenly forgets the victim’s personal information, which can be used to apply for credit in their name.
In reality, economic abuse can continue, escalate or even start after separation. Research has shown that economic abuse is actually more prevalent post separation. It is clear why: when other forms of control may have been removed, controlling an ex-partner’s access to economic resources, such as by refusing to pay child maintenance, which we heard about yesterday, or refusing to sell a jointly owned home to free up much-needed money, may be the only way in which the abuser can continue to control the victim—and what powerful and destructive control that can be.
Victims can be left with such significant debts and poor credit ratings that they are unable to move on or rebuild their lives, yet at present legislation does not afford victims the protection that they need. The link between economic abuse and controlling and coercive behaviour is stark. Analysis by Surviving Economic Abuse of successful prosecutions for the controlling or coercive behaviour offence shows that six in 10 involve economic abuse, yet limitations within the controlling or coercive behaviour offence mean that, at present, victims of economic abuse post separation are unable to seek justice.
As a result, the perpetrator can continue to control their ex-partner for years and even decades. That is because, for the abuser’s actions to fall within the controlling or coercive behaviour offence, perpetrator and victim must have been “personally connected”, as defined in the Serious Crime Act, and that definition differs from what we have in the Domestic Abuse Bill, which clearly states that someone has been in a relationship or is no longer. That is clearly outlined in this new and better definition.
Under the Serious Crime Act, two people will be considered as personally connected if they are in an intimate relationship with each other, or they live together and either are family members or have previously been in an intimate relationship with each other. The result is that where a couple are no longer in an intimate relationship and they do not live together, behaviour by one of them towards the other cannot fall within the offence of controlling or coercive behaviour.
That is why the new clause is vital. We know from research and what we have heard throughout the progress of the Bill that coercive control continues after the victim’s relationship with the perpetrator has ended and they are no longer living together. That is particularly true of forms of abuse that do not rely on physical proximity or the continuation of intimate relationships with the perpetrator, economic abuse being the key example.
Surviving Economic Abuse has shared the story of a woman in this position, and I want to share it with Members. Layla—not her real name—was married for more than 20 years to her abuser and has three children. Throughout the marriage, her husband was controlling and coercive, both economically and emotionally. He would do things such as pressure her to transfer money into his bank account and force her to let him use her credit card. He ran up debt on her credit card and, after separation, forced her to release hundreds of thousands of pounds of equity from the mortgage. Layla continues to pay the debts that he has put in her name, including bank loans of £70,000. He continues to use her contact details rather than his own, so she is being regularly chased by creditors for money. She has also been regularly visited by bailiffs demanding payment of the abuser’s debts, which she has to pay.
Layla has been to the police, but they said that
“the continuing economic abuse cannot be considered under the coercive control offence as the perpetrator had left her.”
Where is the justice in that? We must change that and bring the definition of “personally connected” as it is defined in the Serious Crime Act in line with what we have in the Bill, so that victims such as Layla no longer face the possibility of being a victim of economic abuse going unchallenged for the rest of their lives.
The Bill recognises that abuse can continue post separation and that it does not require the abuser and victim to be in an ongoing relationship or living together. Through the new clause, which has been called for by Surviving Economic Abuse and which has support from SafeLives and many other organisations in the violence against women and girls sector, we can bring those definitions in line with each other so that the intentions of the Bill are not undermined by other legislation, and victims are protected by law and can seek justice. The new clause does that by removing the requirement for intimate partners or family members to be living together for the abuser’s actions to fall under the controlling and coercive behaviour offence.
Alex Chalk
I thank the hon. Lady for her excellent and helpful representations. The context is that I entirely agree with the premise of her point. If I can crystallise it, she is in effect saying, “Look, one of the most pernicious ways you can abuse another individual is through economic abuse.” It is worth stepping back for a second to say that, although we recognise that in this room, if we went back as little as 15 years ago, that might have been a moot point. People have come to realise that this is a particularly potent and cruel weapon to use, and that acknowledgement is a thread that is increasingly starting to run through the law.
The hon. Lady rightly points out that the Serious Crime Act 2015 creates the offence of coercive control, but the definition of domestic abuse in this Bill is one reason why it is it such an important piece of legislation. If someone had been asked what domestic abuse was 15 years ago, they would probably have said, “Domestic abuse is domestic violence, isn’t it?” No, because clause 1(3) says:
“Behaviour is “abusive” if it consists of any of the following—
(a) physical or sexual abuse;
(b) violent or threatening behaviour;
(c) controlling or coercive behaviour;
(d) economic abuse (see subsection (4));”
When we turn to subsection (4), it says:
“‘Economic abuse’ means any behaviour that has a substantial adverse effect
on B’s ability to—
(a) acquire, use or maintain money or other property, or
(b) obtain goods or services.”
I wanted to take stock of where we have come to, because that will inform some of the points that I make in response.
The final thing that I will say by way of context is that the Divorce, Dissolution and Separation Bill, which I am taking through the Committee of the whole House this afternoon, considers precisely this issue. When we say that a minimum of six months is the appropriate period for people to move on from a relationship, where some have said that it should be longer, one of the important rebuttal points is, “Hold on a minute. If someone needs to move on with their lives, potentially from an abusive relationship, they need to make sure that it can happen within a reasonable period so that the economic abuse cannot be perpetuated.” We absolutely get that point, and I would say—I hope not immodestly—that we have spearheaded it.
I entirely agree with the Surviving Economic Abuse charity raising the issue, and it has done an important public service in doing so. To turn to the specific point, as we have heard, the new clause seeks to address another aspect of controlling or coercive behaviour. As the hon. Lady indicated, there have been calls from Surviving Economic Abuse and other domestic abuse charities and victims to expand the offence under section 76 of the 2015 Act by removing the living together requirement for former partners. As the offence stands, it applies only to controlling or coercive behaviour between intimate partners or former partners and family members who are living together.
Alex Chalk
I am sure that hon. Gentleman does look at it.
The 1997 Act was amended to include section 2A, which deals with the “Offence of stalking”. Section 2A says:
“A person is guilty of an offence if… the person pursues a course of conduct… and… the course of conduct amounts to stalking.”
Then, however—this is what I think is brilliant—the 2012 Act goes on to look at the sorts of behaviour that might constitute stalking. Subsection (3) says:
“The following are examples of acts or omissions which, in particular circumstances, are ones associated with stalking… following a person… contacting, or attempting to contact, a person by any means… publishing any statement”
relating to that person. It continues:
“monitoring the use… of the internet… loitering in any place… interfering with any property in the possession of a person… watching or spying on a person.”
The reason why that is important is that it sets out the sorts of behaviour that could be stalking, but it is not exhaustive.
The reason why I say of all that is that if someone at the end of a relationship, when the two people are no longer living together, engages in a course of conduct that, to the man or woman on the Clapham omnibus, is a bit like stalking—whether or not that means trying to exert economic control—there is the potential for offences there, and I will come on to them while I am still sympathetic to the point made by the hon. Member for Birmingham, Yardley.
I am particularly mindful of that because in my own county of Gloucestershire—the Under-Secretary of State for the Home Department, my hon. Friend the Member for Louth and Horncastle has already mentioned this—Hollie Gazzard was brutally murdered. Those who have been victims of stalking say that it is like murder in slow motion, because of so much of what precedes it in terms of stalking behaviour. My point is that that can include economic abuse as well.
However, Surviving Economic Abuse argues further that stalking and harassment offences, although relevant, are not designed specifically to prosecute the sort of behaviour we are discussing. I accept that, but it is also fair to point out that, because of the way that stalking offences are drafted, it is not beyond the wit of man or woman to conceive of how they could be included, based on the facts of a specific case.
In addition, the new statutory definition of domestic abuse includes ex-partners among those defined as “personally connected” and does not have a “living together” requirement. Therefore, an amendment to the controlling or coercive behaviour offence could be seen as conforming within the definition in clause 1.
However, the case is not clearcut, given that the offence is still relatively new, and there is currently limited data available in support of a change. Because the case is not clearcut, the Government committed, in response to our 2018 consultation on domestic abuse, to conduct a review of the offence, as the hon. Lady is aware.
Alex Chalk
The hon. Lady loves a review, she says sotto voce.
Although Home Office officials have made good progress with the review, I am afraid that it has been one of the casualties of the covid-19 pandemic, which has meant that focus has had to be reapplied to supporting victims of domestic abuse at this time. However, the review is in place, and I am grateful to the hon. Lady for her acknowledgement and understanding of the situation.
We hope to conclude the review by the early autumn, because it is important that we have a sound evidence base for any changes to the offence, but we have heard what the hon. Lady says; the points she made are not improper or unmeritorious, and we invite her to await the outcome of the review. I hope that, in the light of my explanation, and on the understanding that we aim to complete the review by early autumn, the hon. Lady will see her way to withdrawing the new clause.
Jess Phillips
Absolutely, and I feel that I have the ear of the Minister in this particular regard. The case is quite clear to me; in the circumstances he has outlined, he is absolutely right. If he thinks that people do not read the statute here, I should say that they certainly do not in Stechford Police Station.
The reality is, what would the charge be? I find it difficult to think that the copper, in reality, on the ground, is going to say, “Actually, I think this will be a stalking charge.”
Alex Chalk
I grappled with this as a Back Bencher when we wanted to increase the maximum sentence, and for precisely that reason—would a police officer, or the CPS, think it was worth the powder and shot to charge someone with stalking when the maximum sentence was only five years? It is now 10 years, because of the private Member’s Bill. If someone engages in a course of conduct that seriously damages an individual, be it by economic abuse, or by hanging around outside the school gates or whatever, the courts have the power to impose what lawyers pompously refer to as “condign punishment”. That provides a powerful incentive for police officers, who want to do justice in the case, to reach for the lever available to them.
Jess Phillips
I appreciate that, and I hope that that would happen in these cases. However, the cases that I am sure will inform the review that the Minister talks about show people often left without an option, rather than with a plethora of different statutory instruments that they could use. The reality is that lots of people simply get sent away with no further action. However, I take on board what the Minister has said about the review. As everyone knows, I absolutely love a review—for the benefit of Hansard readers, I am being sarcastic. I will await the autumn. In the meantime, I beg to ask leave to withdraw the motion.
Clause, by leave, withdrawn.
New Clause 29
Domestic Abuse: immigration and nationality legal aid
“(1) The Legal Aid, Sentencing and Punishment of Offenders Act 2012 is amended as follows: in Part 1 of Schedule 1, delete paragraphs 28 and 29 and insert—
‘Immigration and nationality: victims of domestic abuse
27A (1) Civil legal services provided to a victim of domestic abuse in relation to rights to enter, and to remain in, the United Kingdom and to British citizenship, but only in circumstances arising from that abuse.
27B (2) Sub-paragraph (1) is subject to the exclusions in Parts 2 and 3 of this Schedule.
27B (3) The services described in sub-paragraph (1) do not include attendance at an interview conducted on behalf of the Secretary of State with a view to reaching a decision on an application.
27B (4) In this paragraph—
“domestic abuse” has the same meaning as in section 1 of the Domestic Abuse Act 2020;
“victim” includes the dependent child of a person who is a victim of domestic abuse.’” —(Jess Phillips.)
This new clause would provide for legal aid for survivors of domestic abuse (and their dependent children) in relation to their immigration or nationality status or rights insofar as the need for legal aid arises from the abuse’
Brought up, and read the First time.
Jess Phillips
I am not wholly sure that we will be hearing from all the immigration solicitors that I have come across in my life. I think there is a definite problem in the system with regard to some immigration advice that I get to see being charged for and paid for.
Alex Chalk
I thank the hon. Lady for making that incredibly important point. When somebody is prosecuted by the Office of the Immigration Services Commissioner, it is a serious issue of unscrupulous, unqualified, unethical individuals giving legal advice, and that is a particularly shabby thing to do when know the impact on the victim is known.
Jess Phillips
It certainly is. In these circumstances, people turning up to my office, having forked out £5,000 for a form that they could definitely have filled in by themselves, even if English is not their first language, is a phenomenon. I am afraid to say, I even have some come to my office and ask me to refer people directly to them, as if, like a quid pro quo, they will give free legal advice if we send people. It is a wild west situation.
That brings me to new clause 29, which seeks to provide migrant survivors with legal aid. Often, the cases are complex and it cannot be left to specialist BAME organisations to provide that legal advice. As I mentioned, there is already a deficit in specialist BAME services. Failure to protect all migrant women from abuse has wide-ranging financial and societal consequences —consequences that exceed the cost of extending eligibility of the DV rule and the DDVC.
The economic cost of supporting migrant women with NRPF is often borne out. We might not be paying for it at the Home Office, but it is often borne out by local children’s services, local councils, health and education services, the police and the criminal justice system, as well as by non-statutory agencies. Many women rely on section 17 support under the Children’s Act 1989, which would not be the case if they were eligible for the DV rule and the DDVC. We end up somehow paying for it with either lives lost or some other scheme somewhere along the line.
In its briefing paper on migrant women, Southall Black Sisters highlighted that London boroughs in 2017-18 supported 2,881 households with no recourse to public funds, at a cost of £53.7 million. That was primarily linked to the discharge of their duties under the Children’s Act 1989. The average duration of local authority support is under two and half years, with 30% of families being made dependent for 1,000 days or longer, often because of Home Office delays in resolving immigration claims. One of the primary groups referred to local authorities with NRPF is single mothers who are subject to domestic abuse. The majority of households no longer require local authority support when they are granted leave to remain, because they go on to find work. Surely that is what we all want to see happening.
What assessment have the Government made of how much it would cost to extend the domestic violence rule to all migrant victims? I guess it would cost less than the millions run up by the statutory and non-statutory services to support migrant women. It would be cheaper, and it would certainly be kinder. Although it would perhaps not be so ideologically pure, it would be the right thing to do. Furthermore, by hindering access to life-saving support, there are wider implications for the Government’s international human rights commitments and obligations to combat violence against women and girls.
In their October 2019 report on the ratification of the Istanbul convention, the Government amended the status of their progress on article 4.3, which is the non-discriminatory section, and on article 59, which includes measures to protect victims whose residency status is dependent on a partner, from “compliant” to “under review”—going backwards. As a consequence of their inadequate response to migrant victims of domestic abuse, the Government must now use the opportunity provided by the Bill to ensure meaningful protection for all women.
I am nearly done—worry not—because I want the Minister to have plenty of time to respond. In the evidence session, the hon. Member for Louth and Horncastle talked about the national referral mechanism after it was raised by another Member. In fact, a victim of domestic violence was asked during the evidence session whether she had been referred to the national referral mechanism. As somebody who used to be one of the people administering the national referral mechanism and who ran one of the trafficking services for many years—in fact, I helped to set it up with the Salvation Army as one of the sub-contractors—I want to express, for the benefit of the Committee, some concerns about the cross-over with the national referral mechanism in such cases.
The national referral mechanism has never been used to deal with cases of domestic abuse; that was never its intention. I read the guidance during the weekend after the evidence session. The only mention of domestic abuse in the thousands of pages of guidance suggests that when people identify a victim, they should use some of their experiences with victims of domestic abuse, because victims might react similarly and might not want to talk. That is literally the only mention.
There is some mention of forced marriage and sham marriage in the guidance. However, I have been speaking to the providers this week and have been asking them about how many cases they have seen where those are factors. It is vanishingly rare. Lots of the providers offer both domestic violence services and trafficking services. There is Ashiana Sheffield and Black Country Women’s Aid, where I used to work. They provide both domestic violence services and trafficking services, which are completely distinct. There has never been any suggestion that migrant victims with no recourse to public funds would be able to get through the NRM. As someone who has taken referrals through the NRM, I can tell Members that if a person tried to take these cases through that mechanism—probably with some immigration lawyer helping them to do so—it would count against them. It would look as if they were gaming the system, because these cases inevitably would not get through the NRM. Almost no migrant women on non-spousal visas would be able to access the NRM: it is not for them. They have not been exploited, there are not means, and there are not the three main things that are needed to make a trafficking referral.
However, well over five days ago, I tabled some named day questions to the Home Office. I have not had a response, but I have chased them again this morning; maybe the Minister can answer some of those questions. I asked whether the Secretary of State for the Home Department would
“publish all correspondence between her Department and the contract provider for the Modern Slavery Victim Care Contract on the inclusion within that contract of support services for victims of domestic abuse with no recourse to public funds.”
I also asked the Secretary of State
“how many applications to the National Referral Mechanism (NRM) made reference to forced marriage in the last full reporting year; of those how many people were (a) accepted into the NRM and (b) had their application declined.”
Southall Black Sisters, working with a number of other agencies, has circulated a pretty comprehensive guide to why these particular victims would not qualify. That is not to say that the NRM is not a good system; these victims just would not qualify for it, and it is quite laborious to try to put them through it, so I am not sure why we are currently wagering on the NRM.