My Lords, first, I congratulate my noble friend Lady Newlove on bringing forward these amendments, which, as she said, will create a new criminal offence of strangulation and suffocation. A number of tributes have been paid to my noble friend; they are all well deserved and I associate myself and the Government with them. If I may pick up one phrase used by the noble Lord, Lord Blunkett, she has made a real difference and, moreover, in a really important area. I assure him and the House that we listen. I will listen to noble Peers on this and on other matters. We will not always agree but I will always listen.
There have been a number of powerful and brief contributions. The noble Baroness, Lady Jones of Moulsecoomb, was kind enough to thank the Government, which is very welcome. I will seek to make it a more regular occurrence but it is warmly accepted. As the noble Lord, Lord Hunt of Kings Heath, mentioned, and as my noble friend Lady Newlove identified, a number of organisations have worked hard in this area. Their names are on the record and they deserve the credit as well.
I am also personally grateful to the noble Lord, Lord Marks of Henley-on-Thames, for the discussions which he and I have had on this matter, together with the noble Lord, Lord Anderson of Ipswich. They have been extremely useful to me. Perhaps I may also pick out some good discussions I have had with somebody who did not contribute to this debate but has worked hard in this area: the noble Baroness, Lady Bertin. She certainly improved my knowledge of and focus on this matter.
My noble friend Lady Newlove has highlighted to the Government why this new offence was necessary. She has engaged with me and my officials, to whom I should also pay tribute for working at significant speed, together with Professor David Ormerod—I think I can now say Professor David Ormerod CBE. This is not the first time, and will not be the last, that he has contributed significantly to the criminal law of this country. I will take a few moments to explain the architecture of the offence, because it is a new offence.
The key amendment in the group is Amendment 49, which provides for the substantive new offence. Strangulation and suffocation are always dangerous and, subject to the issue of consent, which was raised by a number of noble Lords and which I will come back to, they are wholly unacceptable. Strangulation can not only injure but be used by perpetrators to cause fear or exert control over their victim, as part of an abusive relationship.
Amendment 49, as I have stated, seeks to create a new offence of non-fatal strangulation or suffocation in England and Wales. It applies to behaviour which is currently criminal, so the aim is to improve the ability to prosecute such offences effectively—a point made by a number of noble Lords. The offence is designed to deal with assaults on any person where this affects their ability to breathe, whether by application of force to the neck—that is, strangulation—or by any other act; for example, by suffocation or constriction. The offence applies to all cases where strangulation or suffocation takes place, including those that occur in a domestic abuse situation. To pick up the point made
by the noble Lord, Lord Marks of Henley-on-Thames, this offence is not restricted to domestic abuse situations but it is quite right that it is in this Bill, because it is often found in those situations.
Although such criminal behaviour can currently be captured under the offence of battery or, where more serious harm is caused, via the offence of causing actual bodily harm under the Offences against the Person Act 1861, the Government have been persuaded of the need to distinguish such crimes through a stand-alone offence. Serious offences against the person currently require actual bodily harm, which can make cases of strangulation or suffocation potentially difficult to prosecute. That is because the victim may have no, or limited, signs of injury. The problem can be compounded by the fact that the existing charge of battery, which carries a penalty of six months’ imprisonment, does not enable the seriousness of the offence as experienced by the victim—the terror caused during the assault or the often long-lasting psychological effect of it—to be suitably punished.
Unlike the summary-only offence of battery, the new offence of strangulation or suffocation will not be time-limited if a prosecution does not commence within six months of the offence. But perhaps of greater importance here, as my noble friend Lady Newlove identified, the new offence will expose the defendant to a more serious sentence than the current six months’ imprisonment for battery. That is because the nature of the harm required to qualify for the maximum five-year penalty has been reduced.
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As is the case under the law for other assaults, the new offence will also provide a defence for the perpetrator to show that the victim consented to being strangled. However, and importantly, that defence of consent will not apply if the victim suffers serious harm, including where the perpetrator intended to cause serious harm or was reckless as to causing harm, regardless of the victim’s consent to those acts.
Noble Lords may ask why consent needs to be addressed here at all. The reason is that the law has to strike a balance. On the one hand, it must not interfere with an individual’s Article 8 ECHR rights to respect for their private life; we also do not want to criminalise low-risk consensual activity. But, on the other hand, we must ensure that any activity which causes serious harm is punished. We have sought to strike that balance in a manner which reflects the current law of the land. That was established by your Lordships’ House in its previous judicial function, which some of us still remember, in its decision in 1993 in the case of R v Brown.
If I can summarise a very long decision in one sentence, it would be this: where a victim consents to an act that amounts to no more than a battery, the consent of the victim can be a valid defence for the perpetrator. Subsection (3) of proposed new Section 75A, however, also gives effect to the other aspect of R v Brown in that a person ordinarily cannot consent to having serious harm inflicted upon them. This is linked to Clause 65 of the Bill, which lists the three assault offences for which, to cite R v Brown, consent to serious harm for sexual gratification is not a defence. That, of course, ties into the point made by the noble
Baroness, Lady Burt, when she said that this is nothing about love. Importantly, exceptions that are recognised separately under the common law in relation to sports and other activities will not be affected and will also apply here. In such cases, where serious harm is caused the courts will consider this offence inapplicable where an existing public policy exemption applies.
The extraterritoriality point was raised by a number of contributors. A new Section 75B is to be inserted into the Serious Crime Act 2015, providing extraterritorial jurisdiction for the offence created by new Section 75A. It will mean that where the offence of strangulation or suffocation is committed outside the United Kingdom by a UK national or a person habitually resident in England or Wales, they can be prosecuted for the offence in England and Wales as if they had committed the offence in England and Wales.
Finally, given that the creation of a new offence of strangulation or suffocation is being achieved here, a number of consequential changes are required, including a new schedule and a change to the Long Title. These are set out in Amendments 19, 89, 95, 98, 100, 101 and 106. The amendments in the new schedule add this new offence to existing lists of mainly violent offences which trigger special consequences; for example, at paragraph 12(3) of the schedule it becomes a violent offence for which an extended sentence of imprisonment is available.
The noble Baroness, Lady Meacher, who has also put her name to Amendment 49, asked about training. In short, whenever there is a new offence, the police and CPS consider training for that new offence. Such training is a matter for them but I am sure that all those involved in the criminal justice system will be alive to the point that she made.
I hope it is not impertinent to say, as a recent arrival in your Lordships’ House, that I respectfully endorse the comment made by the noble Baroness, Lady Wilcox of Newport, who also put her name to Amendment 49. She said that the amendment—and, if I may say, the work that has led up to it—has shown the House at its best. As a new Minister, it has been a pleasure to work with everybody involved in this matter. I am very conscious that I am taking some of the credit for work done by other Ministers, including my predecessors.
To conclude, it is important when considering the creation of any new criminal offence that the offence is proportionate, and that it allows for more prosecutions to brought and convictions secured. As I stated in Committee, there were several difficult legal and technical issues which needed to be considered, particularly matters such as consent and the application of existing public policy exceptions, including those that exist for sports.
The Government are happy to agree that the amendments now address those points while ensuring that crimes of strangulation or suffocation can be prosecuted, with the perpetrators of such crimes more readily brought to justice. I therefore join my noble friend in commending these amendments to the House.