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Lord Freyberg: My Lords, I thank all noble Lords who have spoken in support of the amendment today and the Minister for her consideration of this matter, whatever her views. I am sorry that she was unable to give a greater commitment than the one she has given from the Dispatch Box about looking at this subject
 
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outside the Bill. This issue has vexed me for some time and, because the Minister was unable to say more than he "might" look at it, I have felt compelled to bring forward the amendment today.

I feel that it is more important to right an injustice than to stick to a rule that was unfair when it was first made and has had an increasingly punitive effect ever since. I have made every effort to frame the amendment in a way that will cost the Government as little as possible. I know that there is a difficulty with costing because no figures are available. The figure of £7 million came to me from the Forces Pension Society, and that is all I can quote today.

In the week before Remembrance Sunday, I should like to remind the House that those affected by this issue are mostly widows of Second World War servicemen who fought for a pensionable length of time—for around two decades—and endured great hardship without being able to provide for their wives in the event of their death, through no fault of their own and in contrast to contemporary colleagues in less arduous positions. I hope the House will grasp this late opportunity to help such a vulnerable group. In those circumstances, I should like to test the opinion of the House.

On Question, Whether the said amendment shall be agreed to?

Their Lordships divided: Contents, 149; Not-Contents, 126.


Division No. 2


CONTENTS

Addington, L.
Allenby of Megiddo, V.
Alton of Liverpool, L.
Anelay of St Johns, B.
Astor, V.
Astor of Hever, L.
Attlee, E.
Beaumont of Whitley, L.
Biffen, L.
Blaker, L.
Blatch, B.
Bledisloe, V.
Bowness, L.
Boyce, L.
Bradshaw, L.
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Burnham, L.
Buscombe, B.
Byford, B.
Carnegy of Lour, B.
Carrington, L.
Chelmsford, Bp.
Clement-Jones, L.
Colville of Culross, V.
Colwyn, L.
Cope of Berkeley, L.
Courtown, E.
Craig of Radley, L. [Teller]
Craigavon, V.
Crathorne, L.
Crickhowell, L.
Darcy de Knayth, B.
Denham, L.
Dixon-Smith, L.
Dundee, E.
Dykes, L.
Eden of Winton, L.
Elliott of Morpeth, L.
Elton, L.
Erroll, E.
Falkner of Margravine, B.
Fearn, L.
Ferrers, E.
Finlay of Llandaff, B.
Flather, B.
Fookes, B.
Forsyth of Drumlean, L.
Fowler, L.
Freeman, L.
Freyberg, L. [Teller]
Garden, L.
Gardner of Parkes, B.
Glentoran, L.
Greengross, B.
Griffiths of Fforestfach, L.
Hamwee, B.
Hayhoe, L.
Higgins, L.
Hodgson of Astley Abbotts, L.
Holme of Cheltenham, L.
Hooper, B.
Hooson, L.
Howe, E.
Howe of Aberavon, L.
Howe of Idlicote, B.
Howell of Guildford, L.
Hunt of Wirral, L.
Jenkin of Roding, L.
Jopling, L.
Kimball, L.
Kingsland, L.
Kirkham, L.
Laidlaw, L.
Laing of Dunphail, L.
Lester of Herne Hill, L.
Linklater of Butterstone, B.
Liverpool, E.
Lucas, L.
McColl of Dulwich, L.
Mackie of Benshie, L.
McNally, L.
Maginnis of Drumglass, L.
Mar, C.
Marlesford, L.
Mayhew of Twysden, L.
Methuen, L.
Michie of Gallanach, B.
Miller of Hendon, B.
Monro of Langholm, L.
Monson, L.
Montrose, D.
Morris of Bolton, B.
Morris of Manchester, L.
Mowbray and Stourton, L.
Murton of Lindisfarne, L.
Noakes, B.
Northbourne, L.
Northover, B.
O'Cathain, B.
Palmer, L.
Peel, E.
Perry of Southwark, B.
Peyton of Yeovil, L.
Plumb, L.
Prashar, B.
Rawlings, B.
Razzall, L.
Redesdale, L.
Rees-Mogg, L.
Renfrew of Kaimsthorn, L.
Renton, L.
Richardson of Calow, B.
Rix, L.
Roberts of Conwy, L.
Rogan, L.
Russell-Johnston, L.
Saltoun of Abernethy, Ly.
Sandberg, L.
Sandwich, E.
Seccombe, B.
Selsdon, L.
Sharman, L.
Sharples, B.
Shaw of Northstead, L.
Shutt of Greetland, L.
Simon of Glaisdale, L.
Skelmersdale, L.
Slim, V.
Smith of Clifton, L.
Soulsby of Swaffham Prior, L.
Steinberg, L.
Stoddart of Swindon, L.
Strange, B.
Swinfen, L.
Tenby, V.
Thomas of Gresford, L.
Tope, L.
Trumpington, B.
Ullswater, V.
Vallance of Tummel, L.
Vincent of Coleshill, L.
Waddington, L.
Wade of Chorlton, L.
Walmsley, B.
Watson of Richmond, L.
Weatherill, L.
Williams of Crosby, B.
Williamson of Horton, L.

NOT-CONTENTS

Acton, L.
Alli, L.
Amos, B. (Lord President of the Council)
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Barnett, L.
Bassam of Brighton, L.
Bhattacharyya, L.
Billingham, B.
Blackstone, B.
Boothroyd, B.
Borrie, L.
Boston of Faversham, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Christopher, L.
Clark of Windermere, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
David, B.
Davies of Oldham, L. [Teller]
Desai, L.
Dixon, L.
Drayson, L.
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Fyfe of Fairfield, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Giddens, L.
Goudie, B.
Gould of Potternewton, B.
Graham of Edmonton, L.
Griffiths of Burry Port, L.
Grocott, L. [Teller]
Harris of Haringey, L.
Harrison, L.
Hart of Chilton, L.
Haskel, L.
Haworth, L.
Hayman, B.
Henig, B.
Hilton of Eggardon, B.
Hogg of Cumbernauld, L.
Hollis of Heigham, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Jay of Paddington, B.
Jones, L.
Jordan, L.
Judd, L.
Kirkhill, L.
Leitch, L.
Lipsey, L.
Lockwood, B.
McDonagh, B.
McIntosh of Haringey, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
McKenzie of Luton, L.
Mason of Barnsley, L.
Massey of Darwen, B.
Maxton, L.
Merlyn-Rees, L.
Mishcon, L.
Mitchell, L.
Morgan of Drefelin, B.
Morris of Aberavon, L.
Murphy, B.
Parekh, L.
Peston, L.
Pitkeathley, B.
Plant of Highfield, L.
Ponsonby of Shulbrede, L.
Prosser, B.
Prys-Davies, L.
Puttnam, L.
Radice, L.
Randall of St. Budeaux, L.
Rendell of Babergh, B.
Richard, L.
Rooker, L.
Rosser, L.
Rowlands, L.
Royall of Blaisdon, B.
Sainsbury of Turville, L.
Sawyer, L.
Scotland of Asthal, B.
Sewel, L.
Sheldon, L.
Simon, V.
Smith of Leigh, L.
Stone of Blackheath, L.
Symons of Vernham Dean, B.
Taylor of Blackburn, L.
Temple-Morris, L.
Thornton, B.
Tomlinson, L.
Triesman, L.
Truscott, L.
Tunnicliffe, L.
Turnberg, L.
Turner of Camden, B.
Wall of New Barnet, B.
Warner, L.
Wedderburn of Charlton, L.
Whitaker, B.
Whitty, L.
Williams of Elvel, L.
Woolmer of Leeds, L.
Young of Norwood Green, L.


Resolved in the affirmative, and amendment agreed to accordingly.


 
2 Nov 2004 : Column 183
 

Motion, as amended, agreed to.

Domestic Violence, Crime and Victims Bill [HL]

The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, I beg to move that the Commons amendments be now considered.

Moved accordingly, and, on Question, Motion agreed to.

COMMONS AMENDMENTS

[The page and line references are to Bill 83, the Bill as first printed for the Commons.]

COMMONS AMENDMENT

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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