The World Health Organization in April 2020 reported a 60% rise in emergency calls across Europe by women subjected to violence by their intimate partners, in comparison with the same month in 2019. In the UK, REFUGE’s telephone helpline saw an increase of 77% during June and in July a 54% increase in women needing emergency accommodation during the lockdown period. All signal an additional devastating legacy from COVID-19. The landmark legislation of the Domestic Abuse Bill could not come any sooner.
Even before COVID-19 the consequences of domestic abuse are marked within the criminal justice system – at least 57% of women in prison and under community supervision are victims of domestic abuse (MOJ 2018, Female Offender Strategy) and many have been driven to offend directly as a result of their abuse. Research from screenings at HMP Drake Hall found that 64% of women reported a history indicative of brain injury and for most, this was caused by domestic violence.
The landmark case of Sally Challen has raised public awareness of the impact of coercive control and the Equal Treatment Bench Book is a welcome advance in enhancing understanding. But improved understanding is only one side of the coin, the other is the availability of effective defences for those who are driven to offend.
Duress and self-defence are ill fitting in the prism of domestic abuse. Immediacy of violence is but one facet that highlights this, when the incremental methods of coercive control are considered. The impact of failings to protect are wide ranging, particularly in the lower courts. Examples of offences committed by those who offend as a result of coercive control and domestic abuse include: possession of controlled substance belonging to abusive partner; use of force against an abusive partner or ex-partner; failure to ensure school attendance for fear of meeting abusive partner; and coercion into benefit fraud.
In YS  EWHC 2839, a woman was stopped and arrested after officers noticed a vehicle being driven erratically. YS explained that she had been dragged from her home partially dressed, by her partner, who was in the passenger seat and forced to drive. He threatened to kill her if she didn’t drive, punching her in the ribs and grabbing the steering wheel. It was deemed in the public interest to prosecute YS. Factually she was found credible by the magistrates – namely that she believed if she didn’t drive, then her partner might have killed or seriously injured her. Yet she was still convicted – by the magistrates finding that a reasonable person with the defendant’s beliefs, history of domestic violence, and of her age, in her situation, would not have done what she did. The Divisional Court upheld the conviction, indeed finding magistrates had applied the test too leniently.
The difficulty of the ‘reasonable person’ test is that protection is only afforded by pathologizing victims of domestic abuse with outdated concepts of ‘battered woman syndrome’ or ‘learned helplessness.’ The real reason a victim of domestic abuse offends is the abuse. And the syndrome we seek to scientifically ascribe as being the justification for the offending directly results from the abuse. Yet we are left with syndromization being the key to acquittals for duress.
Proposed new defence
The amendments sought propose a specific defence for victims of domestic abuse. Compulsion and nexus have to exist. The clause would provide:
‘(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 might do 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, or
(b) it is a direct consequence of a person being, or having been, a victim of such abuse.…
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…’
The clause is modelled on the defence provided under the Modern Slavery Act 2015 (MSA 2015), excluding the same offences as listed in Schedule 4 of the MSA 2015.
By adopting a similar framework, protection can be afforded to victims of domestic abuse, as it rightly is to victims of trafficking and exploitation. Such a statutory defence, combined with the application of public interest tests and early case management could have real and early impact in finding a practical solution for individuals who are victims of domestic abuse driven to offend.
The common law defence of self-defence is very difficult to establish in cases of violent resistance by a survivor of domestic abuse against their abusive partner or former partner, where a jury may well conclude that the response was disproportionate without taking account of the long history of abuse.
Proposed new defence
The proposed new self-defence clause would replicate the householder provision (under s 76(5A) of the Criminal Justice and Immigration Act 2008) and would provide equivalent protection to victims of domestic abuse to establish they were acting in self-defence. Such provision already applies to those using force against an intruder in their home.
The new clause would then read as:
‘(5A) In a householder case or a domestic abuse case, the degree of force used by D is not to be regarded as having been reasonable in the circumstances as D believed them to be if it was grossly disproportionate in those circumstances.’
Again, the terminology of domestic abuse would link back to clause 1 of the current Domestic Abuse Bill in relation to:
‘(d) … 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 2020, 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.’
Correcting current failings and anomalies
As the explanatory notes to the Domestic Abuse Bill identify, one of the critical purposes of the Bill is to ‘improve the effectiveness of the justice system in providing protection for victims of domestic abuse…’
Such protection is negated, however, if we fail to ignore the current failings and anomalies in the criminal justice system. A victim of domestic abuse does not stop being a victim the minute they are arrested, or enter the dock as a defendant. It is in stark contrast to the protection afforded by our current legal framework to a householder who can protect themselves in one way against a burglar, yet not when they are a partner abusing them in their home. Or, indeed, an artificial anomaly created when a partner sexually exploited by her boyfriend and is moved around areas to carry out shoplifting can be classified and have a statutory defence available as a victim of trafficking, yet not a specific defence as a victim of domestic abuse.
What we are seeking is to extend the same protection to survivors of domestic abuse who are driven to offend and to end the cycle of victimisation and offending.
These proposals have been developed through the collaborative work of many organisations and individuals – to name but a few: Jenny Earle and Katy Swaine Williams of Prison Reform Trust, Dame Vera Baird QC, Harriet Wistrich, Naima Sakande and Clare Wade QC.
The proposed amendments were tabled by Jess Phillips MP for consideration in the House of Commons and the Bill has now moved on to the House of Lords. As stated by Baroness Helena Kennedy who will be tabling these amendments, ‘Legislative opportunities don’t come around too often. We should seize the moment and align the protections with those given to victims in other legislation.’
Sources of support can be found at: