Domestic Abuse Bill — House of Commons, 2021-04-15
Topic: Law and Crime
Robert James MacGillivray Neill (Conservative, Centre-right): It is a pleasure to speak in this important debate because this is a very important Bill, it is a good Bill and it significantly improves the law in a number of respects. A number of the amendments made in the other place improve the Bill, too I am particularly pleased to see the creation of the offence of non-fatal strangulation. As right hon. and hon. Members will know, I practised in the criminal courts for some 25 years before coming into this place. There was a gap in the law here. Evidentially it was often very difficult to fit that course of conduct into the existing offence under section 18 of the Offences Against the Person Act 1861 to reflect the gravity of it—the lower offence under section 20 often would not give adequate sentencing powers. Equally it was often difficult to demonstrate that the elements of attempted murder were made out—often it would not be possible to prove that was the case—in the light of what had happened. So the creation of a specific offence to deal with a type of behaviour that is particularly pernicious in abusive relationships—I certainly came across it in my career, as I am sure have many others in this House—is particularly valuable and welcome. I know it is welcomed by practitioners and by judges in these cases, because it now gives us a means of capturing the whole of the conduct that can happen in these types of relationship. So that is very welcome I welcome, too, what the Minister said about revenge porn. The Law Commission’s work is very valuable in this field, but the Government’s commitment to moving swiftly on this is important too, because it is critical that offences are kept up to date with the changing technologies and use of social media in society. So these are very good aspects of the Bill, in addition to the others that have already been mentioned I want to talk briefly about three Lords amendments that the Government are right to resist, although I understand and support, as will most Members, the sentiments behind them. The first is Lords amendment 33, which relates to judicial training. The Minister’s comments on this are right. It is absolutely right that there must be training. A great deal is being done now to improve awareness by judges and sentencers—both judges and magistrates, because we must remember many of these cases will be tried by lay magistrates as well as by professional judges. It is absolutely right that there is up-to-date and comprehensive training in this regard. The Judicial College has done a great deal of work now. As Baroness Butler-Sloss—a former president of the family division and one of the most experienced family judges we have in this country, although she is now retired—pointed out, that has been incorporated specifically both into the initial training and the refresher training that is required for judges and magistrates. The Justice Committee in previous reports in relation to the role of the magistracy has urged that there be a more comprehensive training programme. It is important that the Minister ensures that the Ministry of Justice makes the funding available for those training programmes, whether residential or day courses, to be systematically and comprehensively delivered across the country, and that all magistrates and judges have access to them in a timely fashion However, I do not think we need primary legislation to do that. We certainly should have a practical strategy, but I do not think it is right that that should lie in the hands of the Secretary of State. If I can draw an analogy, later in the proceedings, there is a Government amendment in lieu setting out a strategy for the prosecution of offenders. I think that is properly a strategy that can be owned by Ministers because it relates to what is done by the Executive arms of state such as the prosecution. That is different from what is done by the judicial arm of the state. It does not seem constitutionally proper, despite the good intentions behind the amendment, to enable any Secretary of State to have power to dictate to the independent judiciary how they should set about their training programmes and what they should contain. That is a discrete but significant flaw in the amendment, which is why the House would be right to resist it. The objective can be achieved but without trespassing over the constitutional division between Executive, legislature and judiciary that unfortunately is the inevitable and logical consequence of the amendment. It puts the power in a Minister’s hands when in fact there is a clear willingness by the judiciary to seize the nettle themselves on this. We shall make sure that they have the resources to enable them to seize that nettle, but we should not be dictating to them as to how they do it. That is why the Government are right to resist the amendment Lords amendments 37 and 38 relate to reasonable force as a defence and a further statutory offence in domestic abuse cases. Again, the intention is entirely laudable but, certainly in my experience, it is not necessary to put this into primary legislation. For example, the circumstances that are set out in the two amendments and in the lengthy schedule—I think that is Lords amendment 83, which is attached to one of those— relate to offences where it is already possible under existing criminal law for a defendant to raise the full defence of self-defence, which once raised must then be rebutted by the prosecution, or a partial defence—for example, an offence of duress, which can, under certain circumstances, either be a complete defence to an offence or reduce murder down to manslaughter. Those are already available Since the decision in the Challen case—a case that came too late in terms of justice to the individual concerned but which has now set the law on a much better and more up-to-date footing—there is a recognition that the course of conduct of coercive control can be regarded as a factor that raises the defence of duress in the appropriate case. Therefore, the means of a victim of domestic abuse to bring that before the court is already available and it does not seem necessary to add these clauses to the Bill. It might actually have the effect of limiting, unintentionally, the scope of conduct that can be captured and used by a defendant to assert that they were acting in self-defence The law of self-defence has changed. In fact, I was involved in one of the leading cases in the Court of Appeal, which rightly—albeit I was on the prosecution side—said that the law prior to the case of Bird back in the 1990s was too restrictive in what could be pleaded as self-defence. That is particularly important to a woman, and the defendant in that case was a female. The person she had assaulted in self-defence was, as it turned out, a man. That imbalance was not properly reflected in the law up until the Bird case, but it then was, and therefore the existing common law is on a much sounder footing to deal with this. Therefore, it is not necessary to go down the route set out in Lords amendment 38 The defence of duress is, as I say, already available. Evidence that shows that the defendant had been a victim of domestic abuse is of itself already relevant and admissible to set up the defence of duress, in the same way as it is relevant and admissible where a defence of self-defence is pleaded. So we are in danger of over-engineering a solution that is already there and where the courts have shown themselves willing to reflect changes in social conditions and the pressures that exist Let me end my observations by stating that the attitude of the courts in relation to domestic abuse offences, and to sexual offences more generally as well, is sometimes criticised—sometimes rightly—but I have noticed that the judiciary’s approach has changed vastly over the years I have been involved in criminal law. There is now a much greater understanding of the power imbalance that often exists in relationships and that, very frequently, women are in the more vulnerable position. In both the investigation of offences and their handling in court, far greater sensitivity is now shown to victims and complainants in such cases, and absolutely rightly so It seems to me that the law is able to deal with these matters without the need for further primary legislation. The sentiments behind the three Lords amendments I have spoken about are entirely laudable, but they can be picked up and captured elsewhere. For those reasons, it is proper for the Government to resist them.