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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Some noble Lords will remember that a number of years ago there were debates in this House about the case of a man called Tony Martin, who was convicted of murder. He had shot an intruder at his smallholding. Some young men used to get over the wall and pinch things from his yard. I have no doubt that it drove him to his wits’ end, and eventually, on one occasion, he took out his shotgun and shouted at them. As they scrambled back over the wall with their backs to him, he shot one of them in the back and the young man died.
He was convicted of murder because the test for self-defence is that the response to a threat has to be proportionate. It was argued by the Crown in the case of Martin, at first instance in his trial, that he had acted disproportionately in taking a firearm to a couple of lads who were just clambering over his wall to steal. That was infuriating, anger-making and threatening in itself, but his use of force was excessive.
Eventually, the case went to the Court of Appeal, but there was a great deal of outrage in the press over the fact that a man who was defending his property—a place where he should feel safe—ended up being convicted of murder after his life had been made wretched by those who were stealing from him.
The case gave rise to great public debate, which centred on the question of what you do when an intruder invades your place of safety—your home—and on the special threat that that means to you as a householder, a property owner or someone in your own dwelling. Tony Martin’s appeal was dealt with by way of manslaughter, because his mental state was examined by psychiatrists, who decided that at that time he was suffering from mental illness.
The point at issue became a matter of great political debate and the coalition Government, coming into office, decided to change the law. They decided to create a sort of Tony Martin defence, which was that a householder or property owner should get a substantial margin of appreciation as to what is reasonable self-defence. The idea was that it was different. It was not like someone in a chip shop who gets into an argument with a person who takes out a knife and stabs them. That is totally disproportionate. It is not proper self-defence, and the reasonableness test would say that it was not reasonable. Criminal lawyers in this House will be able to give many an example of people behaving disproportionately. If somebody stands on your toe, you are not entitled to knock them out. It is expected that there should be proportionate behaviour in response to a threat or violence.
I want us to think about a read-across. What do I mean by that? I mean that it is quite wrong that that is available to a householder. I have no objection to the margin on reasonableness being lowered if somebody is protecting themselves in their house. If you wake in the night, hear someone rootling around downstairs and run downstairs taking a cricket bat or iron bar
with you, or if you take a knife from the kitchen and run them through but it turns out that the intruder had no weapon on them and that no one ever threatened you physically but it was just the fact that they were there, that should allow the reasonableness test to be lowered.
What I am saying to the House is this. Think of the situation that has been described to the Committee over the last couple of hours in relation to strangulation, which is so often part of the history of women who fear for their lives because they know that the level of violence being used against them is escalating and a point is coming where they will run to the kitchen drawer and get a knife. That seems disproportionate but, in the context of what has gone before and the fear that they have previously experienced, it is not.
I am asking that there should basically be a read-across and that the same test that is applied in the Tony Martin scenario, where the householder is defending their safe space, should apply to a person who is protecting their place of sanctity—their home, their private relationship, their intimate relationship with their partner—which is being abused in such a way that it leads them to a situation where they fear for their own life and therefore might not be able to measure appropriately the threat at that time. What may seem disproportionate in other circumstances is not disproportionate in the circumstances that we are dealing with in that case. In the family home, for someone who has been under threat and experienced the kind of control that the Committee has heard described so potently in this House, the presumptively safe space of their intimate relationship should give them the same margin of appreciation that operates in the householder situation.
I hope the House will see that, although this affects very few cases and the numbers of women are small—over the long period of my being involved in serious murder trials, I would say that over 30 years I have dealt with maybe 10 or 12 women who have killed abusive partners —self-defence is often not available. It does not work for those women because they are seen as having responded in a way that was more than should have been the situation, because their husband did not have a weapon in his hand. It was the way that they had been abused and treated previously that added to the sense of their life being threatened. I am asking the House to look at that, and I am asking the Government to do that read-across. It is the old-fashioned saying, “What is good for the gander is good for the goose.” Women standing trial for killing an abusive partner face difficulties in invoking self-defence.
This amendment is supported by the domestic abuse commissioner, who is in situ at the moment, the Victims’ Commissioner, women’s NGOs and, it goes without saying, the many organisations that have ever dealt with a case where a woman has killed after years of abuse. That is rare, yes, thank God, but we have to make sure that justice is available to those women too. I beg to move.