Domestic Abuse Bill

Baroness Kennedy of Shaws Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Tuesday 5th January 2021 Lords Chamber

[Baroness Kennedy of The Shaws (Lab) [V]]

My Lords, like others in this House, I have been involved in seeking reform of the law on domestic abuse since the 1970s. Change has been a long time coming; for too long, our institutions totally failed to understand the nature of such abuse, and while of course it is not experienced exclusively by women, it is usually the product of deeply embedded power relations, which still work largely against women.

In recent years, the toll of violence on the lives of women and girls has been recognised globally, and it is now present in international conventions. Slowly we have learned that it is not just physical violence but psychological torment, control and coercion, all of which destroys lives. As we heard today, it is hell, and not just for the individual sufferer; it carries a huge social cost, which has already been powerfully described, affecting children, the wider community and so on.

It is important to remember that domestic abuse can lead to desperate events, where victims, seeking to defend themselves, end up in the dock accused of a crime. They are often wrongly convicted because of the law’s inadequacy. Sally Challen was a case in point: she was initially convicted of murdering her husband before coercive control was understood by the courts.

We know that a very high percentage of women in prison have experienced domestic abuse, and, of those, a significant proportion will have been coerced into a criminal act by an abusive partner. It is one of the scandals of our prison system that so many women in prison have themselves been the victims of physical, sexual and psychological abuse as children or adults. I will be urging the Government to create two new statutory defences, which I hope will be widely supported across this House. There is a recognition in most of the organisations that campaign for justice for women that these defences are necessary.

Some noble Lords will remember that, a number of years ago, there were debates in this House around the case of a man called Tony Martin. He had been convicted of murder, having shot an intruder on his property, and his use of a firearm was deemed disproportionate —the boy was unarmed. That debate gave rise to a change in the law by the coalition Government which means that, in effect, a householder gets a substantial margin of appreciation of what is “reasonable” self-defence. This is on the basis that an added sense of threat can be expected to come from being intruded upon within the presumptively safe space of your home.

In her opening remarks, the noble Baroness, Lady Williams, described how the home should be “a place of safety and security”. In just the same way, someone attacked within the presumptively safe space of an intimate emotional relationship should be given the same margin of appreciation. Many of us who practise in the courts and have defended in cases of domestic homicide where there is a history of abuse have long felt that self-defence is in need of modification, to make it accommodate the victims of abuse accused of assault or murder.

The second proposed statutory defence involves a similar read-across. The ground-breaking Modern Slavery Act provides a defence to victims of trafficking who are coerced into the commission of crime. A person is not guilty if they were compelled to commit an offence as a result of their slavery or of being trafficked and controlled by those exploiting them. The bar is not low, but an objective test exists and is applied by asking what it would be “reasonable” to expect of someone in the defendant’s situation, with the same relevant characteristics. Would they have any realistic alternative to committing the crime? In precisely the same way, such a defence should be available to those who are in seriously abusive relationships. Because of its narrow remit, the defence of duress is not providing a defence for such victims who are forced to commit crimes.

Opportunities to change the law do not come along very often, and we can be sure that it will be many years before we can revisit these issues. Moments for change are rare and should be seized. For this reason, I will support many of the additions to the law that have mentioned already, and I will seek to add these two new statutory defences to the Bill. I hope that the Government will come to see that this would create a coherence in law and provide real justice for many victims of domestic abuse.

Domestic Abuse Bill

Baroness Kennedy of Shaws Excerpts

Committee stage & Committee: 4th sitting (Hansard) & Committee: 4th sitting (Hansard): House of Lords
Wednesday 3rd February 2021 Lords Chamber

Moved by

[Baroness Kennedy of The Shaws]

139: After Clause 68, insert the following new Clause—
“Reasonable force in domestic abuse cases
(1) Section 76 of the Criminal Justice and Immigration Act 2008 (reasonable force for purposes of self-defence etc.) is amended as follows.(2) In subsection (5A) after “In a householder case” insert “or a domestic abuse case”.(3) In subsection (6) after “In a case other than a householder case” insert “or a domestic abuse case”.(4) After subsection (8F) insert—“(8G) For the purposes of this section “a domestic abuse case” is a case where—(a) the defence concerned is the common law defence of self-defence,(b) D is, or has been, a victim of domestic abuse, and(c) the force concerned is force used by D against the person who has perpetrated the abusive behaviour referred to in paragraph (b).(8H) Subsection (8G)(b) will only be established if the behaviour concerned is, or is part of, conduct which constitutes domestic abuse as defined in sections 1 and 2 of the Domestic Abuse Act 2021, including but not limited to conduct which constitutes the offence of controlling or coercive behaviour in an intimate or family relationship as defined in section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship).”(5) In subsection (9) after “householder cases” insert “and domestic abuse cases”.”Member’s explanatory statement
This Clause seeks to clarify the degree of force which is reasonable under the common law of self-defence where the defendant is a survivor of domestic abuse alleged to have used force against their abuser.

[Baroness Kennedy of The Shaws (Lab) [V]]

My Lords, like others, I want to express my gratitude to my friend, the noble Lord, Lord Wolfson, for his generosity in giving time to discuss my amendments with me and those supporting me in seeking reform in a place where it is needed. I am grateful that he heard me and listened. I do not know what the response will be, but I ask him to listen again very carefully, because this is a matter where justice really should say that there must be some sort of conformity in law available in what I would say are very comparable circumstances.

It is important to remember that domestic abuse can lead to death. We have just heard a very powerful debate about strangulation, which really emphasised the ways in which those who have experienced non-fatal strangulation described how they felt they were going to die—that they could not breathe and somehow were losing consciousness. Of course, that is what happens if the pressure is continued. We also heard the statistic that one in seven of the women killed after a history of abuse have experienced strangulation. Let me tell you that this one in seven statistic is based on the circumstances where women have already given accounts to others—to their doctors, family members and lawyers—about experiences of strangulation. There are many women who have not given those accounts because of the shame still associated with domestic violence. Some of us have acted in cases involving fatality; one can rely only on the fact that strangulation is a very common feature in the patterns of domestic violence that lead to death.

Today, I will speak about a different set of circumstances from those that have engaged the House up until now. One of the tragic outcomes of domestic violence and abuse can be that the person at the receiving end of it ends up being the person in the dock, having taken the life of their abuser in the end. This happens rarely, unlike the other way around, where two women a week are murdered in this country by a spouse or partner. The statistics show that the number of women killing abusers is very small.

I can draw from my experience—it may be that my noble friend Lady Mallalieu has the same experience—as a criminal lawyer and a Queen’s Counsel for 30 years this year: the women I represented in homicide cases have invariably had a background of abuse, and one of the patterns or things that they describe in the histories that they give is fearing for their life on occasions. The women who end up killing a partner who has abused them have almost invariably felt that they were going to die on many of the occasions when they were assaulted previously.

It is important to remember that, when an accused person ends up in the dock, they can be wrongly convicted because of the law’s inadequacy—remember Sally Challen, a case that we have spoken about before in this House. This was a case in point where gaps in the law had failed a woman because she was convicted initially of murdering her husband before coercive control, which she had suffered for years, was understood properly by the courts.

In a high percentage of the cases that I have dealt with where women have killed a partner, pleading self-defence should have been available to the accused—the woman—but she has ended up seeking recourse in the fact that, very often, because of long-term abuse, women end up suffering from post-traumatic stress disorder of some kind or another, or depressive illness. Those are the tolls that domestic abuse takes on victims. It is one of the great scandals of our system that we do not often think about the impact of things relating to women and domestic abuse until pretty late in the day.

A great deal of thought has gone into the amendment that I am presenting to the Committee today. It looks at self-defence and the objective test of reasonableness that is applied in self-defence, and I shall explain in a minute what that means.

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[Lord Wolfson of Tredegar (Con)]

I am grateful to the noble Baroness, Lady Hamwee, for those various questions. On the issue of the person’s circumstances, I hope I set that position out in my reply. Perhaps it is the sort of point I could set out to her in writing in a couple of paragraphs, if she would not mind.

We are concerned when defences may be being misused; I made it clear that there are some concerns with the victims of slavery defence in that context. On the last point, which I think the noble Baroness accepted was somewhat rhetorical, she is certainly right that we always seek a balance. The point she makes that the law must keep up with the expectations of civil society is a profound one; it is, indeed, one of the big advantages of the common law. I am sure, therefore, that the issues raised by these amendments will continue to be discussed. The question before the Committee this evening is whether the legislature should provide for explicit statutory defences in these terms. For the reasons I have sought to set out, in my opinion, it should not.

[Baroness Kennedy of The Shaws (Lab) [V]]

My Lords, I should tell the Committee that I turned a page too soon in my opening address on these amendments. I did not have the chance to really lay out the second of the statutory defences I am promoting, in Amendment 140.

I regret that I used the term “read-across,” because there are always lawyers who will use language literally. Of course, I did not mean it is an absolute read-across to talk about a householder as distinct from a victim of abuse, but the gravamen is the same. The core of it is about somebody put in fear in the place they want to feel safe: their home. I cannot think of any domestic homicide where I have represented a woman who has killed her partner or ex-partner that did not happen within a household—a place where she was hoping to feel safe but did not, and where experience had taught her to feel fear and terror.

I am afraid I have to say to the Minister that some time, I will take him by the hand into a women’s prison and have him sit down and listen to the accounts of women, by asking them to look him in the eye and tell him their stories. They are so often there because of childhood abuse, having been brought up in abusive households and with direct experience of partner abuse. We could almost empty our prisons without them having women who are there because of their mental health. They are not mentally ill for no reason; almost invariably, it is because of the kind of abuse we have heard about in the debates on this Bill.

I say this respectfully, but the Government are again falling into the trap of saying there are nice victims and bad victims, or of saying: “We will change the law for the good, conforming victims but not for the victims who somehow transgress”. These are the victims who, in the end, defend themselves because they are so in terror for their lives, who are so in fear of a partner that they commit a crime—carrying the drugs from A to B or hiding them in their sock drawer, for example. All I am saying is that there is a double standard in this debate: as soon as you move to that which involves crime and a woman, or anybody who is abused, is in the dock, then suddenly your compassion for the issue of domestic abuse somehow dissipates.

I am very concerned that there is not enough real consideration of the toll of abuse: we are moving into the field where somebody ends up transgressing the law but it is really because of what they are experiencing. If a psychiatrist were to speak to this Committee, they would tell noble Lords that when somebody has experienced fear for their life—we have heard about it in relation to strangulation—and thought “I am going to die at the hands of this person”, and then suddenly smells that level of fear again, in the air, in those circumstances they might take a knife and defend themselves, or take a heavy weapon and hit somebody fatally on the head. The test of “reasonableness” or whether the force was “disproportionate” has to be read in the context. That is why I am saying that it would have to be “grossly disproportionate” for it not to afford a defence of self-defence for somebody who has experienced long-term and serious abuse.

What we are seeing here are the very double standards that are so often experienced by victims of abuse and by women. It goes back to the nature of law and its patriarchal roots. It is about saying that, yes, women who are abused deserve all our compassion but if they overstep the mark, they do not.

Our prisons are full of women who have had these experiences—indeed, I have acted for women who have ended up killing a partner. They do not do it because they suddenly want to wreak vengeance; they do it in exactly the circumstances of the householder who feels in absolute terror for their life.

The failure to make those links and to understand this may be because one has not spent enough time sitting in a cell with people who are coming up for trial. I can tell the Committee that that is the circumstance, and if you can afford, because the Daily Mail demands it of you, to lower the standard of reasonableness and be more flexible for a householder—as indeed you should—then that kind of flexibility should be available to those who have been experiencing long-term abuse.

I ask that the noble Lord look again at the double standard that is operating here. It is partly, of course, because Governments always want to play the law-and-order card and do not want to be seen to be soft on people who commit crime. But very many of the women who end up in prison did what they did because they were under the coercion and control of somebody else, and were absolutely in fear of that person. I really regret the response I have received from my friend, the noble Lord. I ask him to take his great lawyer’s skills and go back to the drawing board again, because he is missing something very important here, which is about justice for women. I beg leave to withdraw the amendment, with great regret, and I am really disappointed in the ministerial response.

Amendment 139 withdrawn.

Domestic Abuse Bill

Baroness Kennedy of Shaws Excerpts

Report stage
Wednesday 10th March 2021 Lords Chamber

Moved by

[Baroness Kennedy of The Shaws]

50: After Clause 68, insert the following new Clause—
“Reasonable force in domestic abuse cases
(1) Section 76 of the Criminal Justice and Immigration Act 2008 (reasonable force for purposes of self-defence etc.) is amended as follows.(2) In subsection (5A) after “In a householder case” insert “or a domestic abuse case”.(3) In subsection (6) after “In a case other than a householder case” insert “or a domestic abuse case”.(4) After subsection (8F) insert—“(8G) For the purposes of this section “a domestic abuse case” is a case where—(a) the defence concerned is the common law defence of self-defence,(b) D is, or has been, a victim of domestic abuse, and(c) the force concerned is force used by D against the person who has perpetrated the abusive behaviour referred to in paragraph (b). (8H) Subsection (8G)(b) will only be established if the behaviour concerned is, or is part of, a history of conduct which constitutes domestic abuse as defined in sections 1 and 2 of the Domestic Abuse Act 2021, including but not limited to conduct which constitutes the offence of controlling or coercive behaviour in an intimate or family relationship as defined in section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship).”(5) In subsection (9) after “householder cases” insert “and domestic abuse cases”.”Member’s explanatory statement
This Clause seeks to clarify the degree of force which is reasonable under the common law of self-defence where the defendant is a survivor of domestic abuse alleged to have used force against their abuser.

[Baroness Kennedy of The Shaws (Lab) [V]]

It is a great privilege to take part in this debate and to hear the voices of so many people with expertise in this field —sometimes direct experience—speaking with wisdom and compassion about why the law had to change.

I remind noble Lords that not so very long ago there used to be a way of referring to domestic abuse as “a domestic”, as though it were lesser than ordinary crime. It has been a long and hard struggle to have the law shift and change, for the agenda and context to change and for our political and legal classes to understand the full import of domestic violence and the toll it takes on our lives and the whole of society. That is why it has been so uplifting to listen to this debate over the last few weeks. I will move for two new statutory defences to be included in the Bill and give notice that I intend to divide the House.

In 2017, the Home Office Minister for Crime, Safeguarding and Vulnerability said there needed to be a root and branch review of how women are treated in the criminal justice system when they themselves are victims of abuse. Unfortunately, criminal law still fails to protect those whose experience of abuse drives them to offend. I strongly urge this House that there cannot be two classes of victim: those who somehow win our compassion and for whom we are desirous of a much fairer system and those who somehow fall outside that kind of protection.

We know that the law has failed women in many different areas for many years, and that one of the reasons why has been the absence of women in lawmaking—in the senior judiciary and in Parliaments. Happily, we have seen that changing in our society over recent decades, but there is still work to be done. I am attempting in these amendments, supported by colleagues around the House, to fill a really important gap—for those who perhaps have least voice because they end up in prison.

These amendments are supported by virtually every organisation involved—I do not know any organisation involved in domestic abuse that is not supporting this change. Once you really know about abuse and its ultimate potential consequences, which can often be the death of a woman or a victim of abuse, you know that sometimes the person on the receiving end can take no more and, out of despair and desperation, inflicts violence. We have to understand the context, and what has often been missing in the courts was a full understanding of domestic violence and the context. I know that, even in this House, we learn from each other and from each other’s experience, directly and indirectly, about what is involved and what the long-term impact of domestic abuse can be. It has been in only recent times, for example, that forms of abuse other than violence have been shown to have long-term consequences that can be so damaging to someone’s mental health. That learning has, in turn, to be fed into the law.

The organisations supporting these amendments include Women’s Aid, Rights of Women, Refuge, the Criminal Bar Association and the Centre for Women’s Justice, which has been a very important part of the research-gathering for these amendments. One of the pieces of work has come out of a report recently published by the Centre for Women’s Justice, Women Who Kill: How the State Criminalises Women We Might Otherwise Be Burying. The Victims’ Commissioner supports these changes. The domestic abuse commissioner- designate supports these amendments. Unfortunately, at the moment, the Government do not. Is this about not wanting to be seen in any way to support persons who might be accused of crime, rather than seeing that you are really supporting victims?

The first of the amendments, Amendment 50, has a new statutory defence relating to self-defence and the reasonableness test that applies to it. This amendment would afford justice to women who, after long-term abuse, are unable to avail themselves of self-defence when they are accused of harming their abuser, using force against their abuser or, indeed, killing their abuser. Why does self-defence not work in these circumstances? The reason is that the force used in self-defence must be reasonable, but because of their experience of relentless abuse and their physical disadvantage, women often reach for a weapon. As a result, their action is often deemed disproportionate because, in examining whether something is reasonable, which is an objective test, the question is asked, “Is it proportionate to what was happening to her at the time?”

Of course, it might not seem proportionate if a woman runs to the kitchen drawer, or reaches to the kitchen counter, and picks up a knife, or, as Sally Challen did, reaches for a hammer and causes a fatal blow to her controlling, abusive husband. I even represented a woman who took a rolling pin and hit her husband, causing an injury to his skull that ended in his loss of life. But he had abused her over years and years, and she could not take any more. So, we have to look at the ways in which we can contextualise this form of abuse, and look at why self-defence does not work for women. The research conducted in the report by the Centre for Women’s Justice really lays it out very clearly.

I just raise the comparison that I put before the House originally, when I spoke at Second Reading and then in Committee. I pointed out that there had already been a departure from the normal rules when dealing with a householder. The Government’s response then was to distinguish a householder’s fear if someone trespassed on to their property—an Englishman’s home is his castle—as, not knowing who they may be, they may take a weapon from a drawer and use it fatally, from the position of a victim of domestic violence taking a weapon in her hand.

I suggest that the point was ill made, because no one is suggesting a parallel. A departure has been made from the normal rules, which were made with a different perception in mind, by men of law who had not imagined the circumstances of domestic violence, the long-term abuse, the toll that it takes and the psychological impact it has on someone—the rising fear, the reading of a situation, the complexity referred to by the Minister and the dynamic that is created in these relationships. The point that I was making was that a departure has been made for the circumstances of the householder. If we are prepared to make it there, why are we so reluctant to make it here, particularly when it is going to be made use of by women—rare as these cases are—defending themselves against someone?

We heard today of the Government’s change of heart in their concession that non-fatal strangulation should become a crime, properly recognised by the courts at the right level. I have not worked on a single homicide where such a strangulation has not put people in fear that, one day, it will extinguish their life. That has been part of the histories that they have given to the court about the way in which they have been treated over the years.

The concern here is that self-defence is not working in these cases. The amendment seeks to introduce the test that was introduced for the householder, which is that, instead of being reasonable and proportionate, it would have to be grossly disproportionate to lose the right to draw down self-defence as a rationale or defence for conduct and for seeking an acquittal. For most of these women, because they face a conviction of murder if they fail, those acting for them persuade them to plead guilty of manslaughter. They are driven down another road that will lead to a conviction, but that is not the justice of the situation. They plead guilty to manslaughter, are convicted and end up in prison. That conviction will have consequences for their lives—employment and so much else—when they have been at the receiving end of abuse. That is quite wrong. It is in the hands of the Government to make a difference and I call upon them to reconsider their position.

I turn now to an interesting piece of academic work that was written under the names of Sheehy, Stubbs and Tolmie in 2012. It is about defences against homicide from battered women, as a comparative analysis of laws in Australia, Canada and New Zealand. This House can be persuaded by research from elsewhere, if changes have been made in other common law jurisdictions. It would be good for us to take a lead. When Theresa May introduced this legislation, she spoke of the United Kingdom leading the world in making changes to law that would bring proper justice to anybody facing domestic abuse, particularly women. Seeing whether others have made those changes first is not necessary, but it is helpful to look at research.

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[Lord Parkinson of Whitley Bay (Con)]

My Lords, I am sorry to interrupt the noble Baroness. I appreciate that she has three amendments to introduce—

[Baroness Kennedy of The Shaws (Lab) [V]]

The third one does not count.

[Lord Parkinson of Whitley Bay (Con)]

She has taken 20 minutes to do so already and the House is keen to debate the amendments she is putting forward. If she could do so briefly, it will give noble Lords the opportunity to do just that.

[Baroness Kennedy of The Shaws (Lab) [V]]

I feel that that was unnecessary, but I was coming to my conclusion anyway. There must be a causal link between the threat and the decision of the defendant to break the law, and that is a high bar. I strongly urge the House to support this new statutory defence for women who are compelled to commit crimes so that they can put it before the court where it can be tested and measured evidentially. If it passes the test, she can be acquitted.

Amendment 66 is a list of the offences to which this would not apply because of their gravity. I hope that the Crown does not think that there are two kinds of victims: those who are somehow deserving and those who are undeserving. The end of the road is when women are forced to do things that take them into the criminal ambit because of a history of abuse. I beg to move.

[Lord Randall of Uxbridge (Con) [V]]

My Lords, we have heard a passionate and erudite speech by the noble Baroness, Lady Kennedy of The Shaws. I have attached my name to her Amendment 51 principally because I was struck by the similarity, which is mentioned in the explanatory statement, to what is set out in the Modern Slavery Act 2015, where someone cannot be found guilty of committing a criminal act if they have been subjected to the coercion of modern slavery. I can see the same parallel between that and the domestic abuse situation which has been put so well by the noble Baroness. I therefore say, in the interests of brevity, that the noble Baroness has said it all and I shall support her, certainly on Amendment 51, if she puts it to a vote.

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[The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)]

I have received no requests to speak after the Minister; accordingly, I call the noble Baroness, Lady Kennedy of The Shaws.

[Baroness Kennedy of The Shaws (Lab) [V]]

My Lords, I am of course disappointed but not surprised by the response, as it was indicated that I would not receive the response that some other amendments have. It is regrettable, because all the evidence points towards problems in both these areas. There are women being convicted of crimes where they have clearly been coerced and their abusive partners are forcing them to commit crime. In relation to homicide and, indeed, lesser crimes, self-defence is not available to women because of the “disproportionate” issue. The measure should be just the same as in the intruder case. The distinction that the noble Lord seeks to make between that and the householder is really without merit and not convincing. I am sure he is having to read from a brief and he will know himself.

Anyone who really knows about domestic abuse knows that this is instinctive: when someone snaps, in the end, it is because they cannot take any more. That is why they reach for a weapon; they know that they cannot take on the sort of force that they have experienced in the past. This is a failure of understanding. It is being unable to stand in the shoes of someone in these circumstances.

I do not blame the noble Lord, Lord Wolfson, in any way. It is just that there is a process of learning here, which we have all been on. It may be easier to understand someone nearly being strangled, but harder to understand the moment when, instinctively and in terror, a person who has been abused over a long period suddenly reaches for a weapon in their defence. Not to understand that is regrettable, so I will move both these amendments and test the opinion of the House.

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Moved by

[Baroness Kennedy of The Shaws]

51: After Clause 68, insert the following new Clause—
“Defence for victims of domestic abuse who commit an offence
(1) A person is not guilty of an offence if—(a) the person is aged 18 or over when the person does the act which constitutes the offence,(b) the person does that act because the person is compelled to do it,(c) the compulsion is attributable to their being a victim of domestic abuse, and(d) a reasonable person in the same situation as the person and having the person’s relevant characteristics would have no realistic alternative to doing that act.(2) A person may be compelled to do something by another person or by the person’s circumstances.(3) Compulsion is attributable to domestic abuse only if—(a) it is, or is part of, conduct which constitutes domestic abuse as defined in sections 1 and 2 of this Act, including but not limited to conduct which constitutes the offence of controlling or coercive behaviour in an intimate or family relationship as defined in section 76 of the Serious Crime Act 2015 (controlling or coercive behaviour in an intimate or family relationship), or(b) it is a direct consequence of a person being, or having been, a victim of such abuse.(4) A person is not guilty of an offence if—(a) the person is under the age of 18 when the person does the act which constitutes the offence,(b) the person does that act as a direct consequence of the person being, or having been, a victim of domestic abuse as defined at subsection (3)(a) above, and(c) a reasonable person in the same situation as the person and having the person’s relevant characteristics would do that act.(5) For the purposes of this section “relevant characteristics” means age, sex, any physical or mental illness or disability and any experience of domestic abuse.(6) In this section references to an act include an omission.(7) Subsections (1) and (4) do not apply to an offence listed in Schedule (Offences to which the defence for victims of domestic abuse who commit an offence does not apply).(8) The Secretary of State may by regulations amend Schedule (Offences to which the defence for victims of domestic abuse who commit an offence does not apply).(9) The Secretary of State must make arrangements for monitoring of the types of offence for which victims of domestic abuse are prosecuted and use this evidence to inform an annual review of the offences listed in Schedule (Offences to which the defence for victims of domestic abuse who commit an offence does not apply) and any amendment to Schedule (Offences to which the defence for victims of domestic abuse who commit an offence does not apply).”Member’s explanatory statement
This new Clause would provide a statutory defence for survivors of domestic abuse, in some circumstances, who commit an offence. It is closely modelled on section 45 of the Modern Slavery Act 2015.

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Moved by

[Baroness Kennedy of The Shaws]

66: After Schedule 2, insert the following new Schedule—
“OFFENCES TO WHICH THE DEFENCE FOR VICTIMS OF DOMESTIC ABUSE WHO COMMIT AN OFFENCE DOES NOT APPLYCommon law offences
1 False imprisonment.2 Kidnapping.3 Manslaughter.4 Murder.5 Perverting the course of justice.6 Piracy.Offences against the Person Act 1861
7 An offence under any of the following provisions of the Offences Against the Person Act 1861—(a) section 4 (soliciting murder);(b) section 16 (threats to kill);(c) section 18 (wounding with intent to cause grievous bodily harm);(d) section 20 (malicious wounding);(e) section 21 (attempting to choke, suffocate or strangle in order to commit or assist in committing an indictable offence);(f) section 22 (using drugs etc to commit or assist in the committing of an indictable offence);(g) section 23 (maliciously administering poison etc so as to endanger life or inflict grievous bodily harm);(h) section 27 (abandoning children);(i) section 28 (causing bodily injury by explosives);(j) section 29 (using explosives with intent to do grievous bodily harm);(k) section 30 (placing explosives with intent to do bodily injury);(l) section 31 (setting spring guns etc with intent to do grievous bodily harm);(m) section 32 (endangering safety of railway passengers);(n) section 35 (injuring persons by furious driving);(o) section 37 (assaulting officer preserving wreck);(p) section 38 (assault with intent to resist arrest).Explosive Substances Act 1883
8 An offence under any of the following provisions of the Explosive Substances Act 1883—(a) section 2 (causing explosion likely to endanger life or property);(b) section 3 (attempt to cause explosion, or making or keeping explosive with intent to endanger life or property);(c) section 4 (making or possession of explosives under suspicious circumstances).Infant Life (Preservation) Act 1929
9 An offence under section 1 of the Infant Life (Preservation) Act 1929 (child destruction).Children and Young Persons Act 1933
10 An offence under section 1 of the Children and Young Persons Act 1933 (cruelty to children).Public Order Act 1936
11 An offence under section 2 of the Public Order Act 1936 (control etc of quasi-military organisation).Infanticide Act 1938
12 An offence under section 1 of the Infanticide Act 1938 (infanticide). Firearms Act 1968
13 An offence under any of the following provisions of the Firearms Act 1968—(a) section 5 (possession of prohibited firearms);(b) section 16 (possession of firearm with intent to endanger life);(c) section 16A (possession of firearm with intent to cause fear of violence);(d) section 17(1) (use of firearm to resist arrest);(e) section 17(2) (possession of firearm at time of committing or being arrested for specified offence);(f) section 18 (carrying firearm with criminal intent).Theft Act 1968
14 An offence under any of the following provisions of the Theft Act 1968—(a) section 8 (robbery or assault with intent to rob);(b) section 9 (burglary), where the offence is committed with intent to inflict grievous bodily harm on a person, or to do unlawful damage to a building or anything in it;(c) section 10 (aggravated burglary);(d) section 12A (aggravated vehicle-taking), where the offence involves an accident which causes the death of any person;(e) section 21 (blackmail).Criminal Damage Act 1971
15 The following offences under the Criminal Damage Act 1971—(a) an offence of arson under section 1;(b) an offence under section 1(2) (destroying or damaging property) other than an offence of arson.Immigration Act 1971
16 An offence under section 25 of the Immigration Act 1971 (assisting unlawful immigration to member state).Customs and Excise Management Act 1979
17 An offence under section 170 of the Customs and Excise Management Act 1979 (penalty for fraudulent evasion of duty etc) in relation to goods prohibited to be imported under section 42 of the Customs Consolidation Act 1876 (indecent or obscene articles).Taking of Hostages Act 1982
18 An offence under section 1 of the Taking of Hostages Act 1982 (hostage-taking).Aviation Security Act 1982
19 An offence under any of the following provisions of the Aviation Security Act 1982—(a) section 1 (hijacking);(b) section 2 (destroying, damaging or endangering safety of aircraft);(c) section 3 (other acts endangering or likely to endanger safety of aircraft);(d) section 4 (offences in relation to certain dangerous articles).Mental Health Act 1983
20 An offence under section 127 of the Mental Health Act 1983 (ill-treatment of patients).Child Abduction Act 1984
21 An offence under any of the following provisions of the Child Abduction Act 1984—(a) section 1 (abduction of child by parent etc);(b) section 2 (abduction of child by other persons).Public Order Act 1986
22 An offence under any of the following provisions of the Public Order Act 1986— (a) section 1 (riot);(b) section 2 (violent disorder).Criminal Justice Act 1988
23 An offence under section 134 of the Criminal Justice Act 1988 (torture).Road Traffic Act 1988
24 An offence under any of the following provisions of the Road Traffic Act 1988—(a) section 1 (causing death by dangerous driving);(b) section 3A (causing death by careless driving when under the influence of drink or drugs).Aviation and Maritime Security Act 1990
25 An offence under any of the following provisions of the Aviation and Maritime Security Act 1990—(a) section 1 (endangering safety at aerodromes);(b) section 9 (hijacking of ships);(c) section 10 (seizing or exercising control of fixed platforms);(d) section 11 (destroying fixed platforms or endangering their safety);(e) section 12 (other acts endangering or likely to endanger safe navigation);(f) section 13 (offences involving threats).Channel Tunnel (Security) Order 1994 (S.I. 1994/570)
26 An offence under Part 2 of the Channel Tunnel (Security) Order 1994 (SI 1994/570) (offences relating to Channel Tunnel trains and the tunnel system).Protection from Harassment Act 1997
27 An offence under any of the following provisions of the Protection from Harassment Act 1997—(a) section 4 (putting people in fear of violence);(b) section 4A (stalking involving fear of violence or serious alarm or distress).Crime and Disorder Act 1998
28 An offence under any of the following provisions of the Crime and Disorder Act 1998 —(a) section 29 (racially or religiously aggravated assaults);(b) section 31(1)(a) or (b) (racially or religiously aggravated offences under section 4 or 4A of the Public Order Act 1986).Terrorism Act 2000
29 An offence under any of the following provisions of the Terrorism Act 2000—(a) section 54 (weapons training);(b) section 56 (directing terrorist organisation);(c) section 57 (possession of article for terrorist purposes);(d) section 59 (inciting terrorism overseas).International Criminal Court Act 2001
30 An offence under any of the following provisions of the International Criminal Court Act 2001—(a) section 51 (genocide, crimes against humanity and war crimes);(b) section 52 (ancillary conduct).Anti-terrorism, Crime and Security Act 2001
31 An offence under any of the following provisions of the Anti-terrorism, Crime and Security Act 2001—(a) section 47 (use of nuclear weapons);(b) section 50 (assisting or inducing certain weapons-related acts overseas);(c) section 113 (use of noxious substance or thing to cause harm or intimidate). Female Genital Mutilation Act 2003
32 An offence under any of the following provisions of the Female Genital Mutilation Act 2003—(a) section 1 (female genital mutilation);(b) section 2 (assisting a girl to mutilate her own genitalia);(c) section 3 (assisting a non-UK person to mutilate overseas a girl’s genitalia).Sexual Offences Act 2003
33 An offence under any of the following provisions of the Sexual Offences Act 2003—(a) section 1 (rape);(b) section 2 (assault by penetration);(c) section 3 (sexual assault);(d) section 4 (causing person to engage in sexual activity without consent);(e) section 5 (rape of child under 13);(f) section 6 (assault of child under 13 by penetration);(g) section 7 (sexual assault of child under 13);(h) section 8 (causing or inciting child under 13 to engage in sexual activity);(i) section 9 (sexual activity with a child);(j) section 10 (causing or inciting a child to engage in sexual activity);(k) section 13 (child sex offences committed by children or young persons);(l) section 14 (arranging or facilitating commission of child sex offence);(m) section 15 (meeting a child following sexual grooming);(n) section 16 (abuse of position of trust: sexual activity with a child);(o) section 17 (abuse of position of trust: causing or inciting a child to engage in sexual activity);(p) section 18 (abuse of position of trust: sexual activity in presence of child);(q) section 19 (abuse of position of trust: causing a child to watch a sexual act);(r) section 25 (sexual activity with a child family member);(s) section 26 (inciting a child family member to engage in sexual activity);(t) section 30 (sexual activity with a person with a mental disorder impeding choice);(u) section 31 (causing or inciting a person with a mental disorder impeding choice to engage in sexual activity);(v) section 32 (engaging in sexual activity in the presence of a person with a mental disorder impeding choice);(w) section 33 (causing a person with a mental disorder impeding choice to watch a sexual act);(x) section 34 (inducement, threat or deception to procure sexual activity with a person with a mental disorder);(y) section 35 (causing a person with a mental disorder to engage in or agree to engage in sexual activity by inducement, threat or deception);(z) section 36 (engaging in sexual activity in the presence, procured by inducement, threat or deception, of a person with a mental disorder);(aa) section 37 (causing a person with a mental disorder to watch a sexual act by inducement, threat or deception); (ab) section 38 (care workers: sexual activity with a person with a mental disorder);(ac) section 39 (care workers: causing or inciting sexual activity);(ad) section 40 (care workers: sexual activity in the presence of a person with a mental disorder);(ae) section 41 (care workers: causing a person with a mental disorder to watch a sexual act);(af) section 47 (paying for sexual services of a child);(ag) section 48 (causing or inciting child prostitution or pornography);(ah) section 49 (controlling a child prostitute or a child involved in pornography);(ai) section 50 (arranging or facilitating child prostitution or pornography);(aj) section 61 (administering a substance with intent);(ak) section 62 (committing offence with intent to commit sexual offence);(al) section 63 (trespass with intent to commit sexual offence);(am) section 64 (sex with an adult relative: penetration);(an) section 65 (sex with an adult relative: consenting to penetration);(ao) section 66 (exposure);(ap) section 67 (voyeurism);(aq) section 70 (sexual penetration of a corpse).Domestic Violence, Crime and Victims Act 2004
34 An offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing a child or vulnerable adult to die or suffer serious physical harm).Terrorism Act 2006
35 An offence under any of the following provisions of the Terrorism Act 2006—(a) section 5 (preparation of terrorist acts);(b) section 6 (training for terrorism);(c) section 9 (making or possession of radioactive device or material);(d) section 10 (use of radioactive device or material for terrorist purposes);(e) section 11 (terrorist threats relating to radioactive devices etc).Modern Slavery Act 2015
36 An offence under any of the following provisions of the Modern Slavery Act 2015—(a) section 1 (slavery, servitude and forced or compulsory labour);(b) section 2 (human trafficking).Ancillary offences
37_(1) An offence of attempting or conspiring to commit an offence listed in this Schedule.(2) An offence committed by aiding, abetting, counselling or procuring an offence listed in this Schedule.(3) An offence under Part 2 of the Serious Crime Act 2007 (encouraging or assisting) where the offence (or one of the offences) which the person in question intends or believes would be committed is an offence listed in this Schedule.”