PARLIAMENTARY DEBATE
Criminal Justice Bill (Fourth sitting) - 14 December 2023 (Commons/Public Bill Committees)

Sir Graham, I was hoping I might declare an interest at this stage. I am a member of USDAW—the Union of Shop, Distributive and Allied Workers—as is my wife, and the Committee has a witness from USDAW coming later.

Q43 Thank you, Mr Talbot, for your time and expertise today. Given your admirable record in the proceeds of crime field, I am hoping that you might set out for the Committee what you think of proceeds of crime arrangements at the moment, and then, with particular reference to what is in clause 32, which is an attempt to more tightly define the purpose of confiscation under those arrangements, reflect on your view on that as well.

Kennedy Talbot: Yes. Speaking broadly for the moment and without commenting on the Bill—I do not think the Bill would be a vehicle to make all the changes that might be desirable—the key issue is plainly to investigate and to identify criminal proceeds and then to ensure that they are secure. That is the principal problem: by the time the courts get involved, making orders divesting people of assets, in most cases the assets have long gone. That is if the courts actually are engaged.

As you will probably recall from the report in March by the Public Accounts Committee, looking at the investigation of fraud, something like 41% of crime is fraud, yet it is largely not investigated. Of the 900,000 reports that are made to Action Fraud, only 1% result in any kind of judicial proceeding. That, from the broadest perspective, is where the problem lies—ensuring that fraud and other economic crimes are properly investigated and assets are frozen early. That is the best way to ensure that they are confiscated or forfeited.

Q What do you think about the clause 32 provision to try to tighten up the definition? Will that help to give clarity to the courts about what we are seeking with this legislation?

Kennedy Talbot: I think it may be possible to make amendments to the Bill in two respects to deal with the issue that I have just mentioned. One involves restraint orders. I am sure that the Committee is familiar with the power for the court to make restraint orders preventing people who are suspected of crime, and then charged with crime, from dealing with their assets. At the moment, a statutory proposal in the Bill is that the risk of dissipation factor—such risk needs to be established for an order to be made under case law, not under statute —should be specified. The answer, in my view, is to scrap the risk of dissipation, so that it is not a requirement.

In many cases, what prevents prosecutors from applying for restraint orders is that they feel they cannot meet that test. Normally, that is because the case is brought to them some time after an investigation first started. The defendants are often aware that they are being investigated, and the case law more or less establishes that unless you can show that a defendant is on the point of selling his house or moving £100,000 to the UAE or whatever it may be, you cannot get a restraint order. Scrap the risk of dissipation.

Q You said two amendments. That was one.

Kennedy Talbot: That was one. The other is about receivers. Receivers have always been a very useful tool, in particular with economic crime involving businesses, because they enable the court to appoint a court officer, a receiver—normally an insolvency practitioner—to manage, run and control businesses. That was from the time that a restraint order could be made, so from the very beginning of an investigation. As a result of case law that went to the Supreme Court, however—a 2013 case named for the Eastenders Group—management receivers, as they are called, have dried up. The reason for that is that the Supreme Court held that if the management receiver was wrongly appointed in the first place, the prosecutor had to meet the costs. In that case, it was more than £1 million, which had a chilling effect, so prosecutors simply have not applied for receivers at all.

The amendment would be to make receivers’ costs payable out of central funds. There may be a way to ameliorate the problems that one might have with the Treasury. I do not know whether you know about ARIS, the asset recovery incentivisation scheme, but with that up to half of the recoveries are hypothecated back to the investigating and prosecuting authorities, but they must use them within particular accounting periods. The answer, rather than sending it all back, might be to put a portion into a fund that could be used for those special expenses. That would not cost the Treasury a single penny.

Q I wanted to ask about the various forms of suspended account and suspended account schemes, which appear in schedule 5 to the Act to complement the confiscation provisions. Will you comment on them? Is that different from what you have currently? I am not an expert in this area.

Kennedy Talbot: No, neither am I. I am just here for clause 32 and schedule 4, and that is in schedule 5. However, I can say that I acted for a bank in a case in the High Court last year, which was effectively part 5 of the Proceeds of Crime Act 2002 being used to recover all the funds that were in suspended accounts, so it is possible to do it without new law, but I have not looked at the provisions of schedule 5 in any detail to be able to help with that; I am sorry.

Q As a barrister, what do you think the kind of practical benefits of the confiscation measures will be?

Kennedy Talbot: Do you mean as they stand?

In the Bill.

Kennedy Talbot: I think that the good things about the Bill include the statutory process to reach settlements immediately after a defendant is convicted. It is abbreviated to EROC, early resolution of confiscation, where the court can direct the parties to meet and seek to reach a settlement. I think that is a good idea. In my view, it needs some tinkering with, because at the moment the convicted defendant has no incentive to co-operate, and most defendants want to put off for as long as possible the day when their assets are confiscated, as you might expect. Unless we can work in some incentives, I do not think that will work as well as it might.

Q Can you give me an idea of what those incentives might look like?

Kennedy Talbot: It might be difficult for the court to be able to ameliorate the sentence that the defendant might suffer. It may be possible to reduce slightly his confiscation liability—to give a reduction, as one gives a reduction to defendants who plead guilty—but by that stage, when we come to confiscation, most defendants are serving prison sentences, and their prison conditions are the most important thing to them, so prison privileges and categorisation might be the way to incentivise without damaging the public interest and people getting reductions in their sentences unjustifiably.

Q The panel will not be surprised to hear that I want to ask you questions about violence and abuse against retail workers and retail crime. The Bill does not have very much—or is silent—on the matter. Could you tell us about the scale of the challenge at the moment within your industry?

Helen Dickinson: Thank you for the opportunity to come and talk to you today. We are not technical experts on the Bill, but we are happy to talk about the scale of the issue and an amendment that we think could help to address the situation, at least in some instances.

You will hear various bits of data about the impact of violence and abuse on people who work in the retail industry. We compile data. Many businesses, such as the Co-op, have their own data. USDAW has data, as does the charity that looks after many employees who work in retail. All the different sources of data show a significant trend: an uptick in shoplifting, organised crime, and violence and abuse against shop workers and wider retail workers.

For me, there has been a big turning point this year. Businesses such as the Co-op and other frontline convenience stores are often on the receiving end when they ask a customer about age-related sales or something, but it is now many different types of businesses, including clothing, fashion and beauty businesses. It is a much more prevalent issue right across retail, rather than being concentrated on food.

The scale of it is much higher than it was pre-pandemic. The number of incidents of violence and abuse against retail workers has nearly doubled since before the pandemic, from around 450 per day across the country to around 850. I am sure that Paddy and Paul will share some specific statistics from their point of view, but that gives you an idea of the scale. It is an increasingly worrying trend that has a big financial impact on businesses, which we are all paying for in terms of inflation, but most significantly on the people who work in retail, and on customers and their families as well.

Paddy Lillis: Thanks for the invite to the Committee. As part of our Freedom From Fear campaign, we have been surveying our members for 20 years about violence and abuse towards retail staff. The idea that this thing is a victimless crime is far from the truth. Shoplifting has cost £1 billion in the last year—£1 billion for employers for security measures. That is one side of it.

The other side, which I will concentrate on, is the number of incidents of abuse, threats and violence towards retail staff. Do not lose sight of the 3 million retail workers in the UK. They deserve to have the protection of Parliament, the police, the judicial system and ourselves. We have seen an explosion of shoplifting and violence towards staff over the last 12 months. It nearly doubled during the pandemic. The sad part is that these people are working in the community, living in the community and serving the community, and they do not deserve this sort of abuse, but we are seeing an increase. I think 62% of the people we surveyed have been abused—verbally abused. About 56% of them have been threatened and 5% have been assaulted. We had a member who lost his life last August in Andover in a Tesco store, and that is the worst side of it.

We would argue that the Bill is missing a trick here in the sense that it represents an opportunity to include a statutory offence to tackle the violence towards retail staff. It is horrendous when you listen some of the stories, as we have to do every day. It is heartbreaking—from people being spat on, threatened or abused, to being assaulted, having their cars damaged, and being followed at night when leaving their stores. It is just horrendous.

I would say there are three elements to this. We have had the historical issue for many years in terms of drugs and alcohol, with people stealing them. They are probably the most dangerous. On top of that, with the cost of living—I am not condoning this, by the way—people are shoplifting. We have also seen over the last number of years that criminal gangs just see retail as an easy target, because the likelihood of being caught is minimal. If you are caught, the chances are you will probably just get a slap on the wrist. For us, this really is important. We look at the Scottish Bill that came in in 2021. There have been 6,000 additional investigations of retail crime by the police in Scotland, so it does work when there is a specific offence out there.

The other thing I will finish on is this £200 levy, where it is a summary offence—that is, it cannot go to a magistrates court. In reality, the police cannot be bothered—it is not so much that they cannot be bothered, but more because of a resource issue. If they do stop them, it is a fixed penalty notice, and that sends all the wrong signals to the criminal fraternity: “It is probably a fine more than anything else.”

There is an opportunity here, I think, to send a message out from Parliament, from yourselves and from ourselves as employers and trade unions, that this is unacceptable and appalling behaviour, and that we are all on the side of retail workers. Retail workers are in every postcode in the country, and in every constituency in the country, and they do deserve our support.

Paul Gerrard: Thank you for this opportunity. At the Co-op Group, we run 2,500 small-format convenience stores across the country. We have seen a 44% rise in incidents of crime in our stores, a 36% rise in incidents of violence, and a 38% rise in incidents of abuse.

What does that look like? Speaking to some colleagues over the last couple of days, just to get a live sense of that, I heard that a store manager was attacked by a customer “with a knife who went for his throat. Fortunately, the assailant missed my colleague’s throat, but hit him in the collar.” He had to be hospitalised. The individual got a £200 fine. There are two individuals in and around Manchester who are stealing in excess of £180,000-worth of product a year, and by the time they have sold it for a third of the price, they have a pre-tax income of £30,000 each—I am not sure whether they are paying a lot of tax on that. As a former His Majesty’s Revenue and Customs officer, I can guarantee that they are not paying a lot of tax on that. In truth, there is a quite terrifying level of lawlessness out there.

There is another thing worth noting with the current situation. We very much welcome the retail crime action plan, which is a good step forward, but we are a long way away from what it outlines. At present, the police do not turn up to 70% of the incidents that the Co-op reports. We only report serious incidents. We do not report someone nicking a ham sandwich and a can of Coke. We report the serious, prolific offenders, and 70% of the time the police do not turn up. More than that, when we use citizen’s arrest powers to detain the individual offender and call the police to complete the arrest, the police do not turn up on 80% of occasions, which means we have to let them go.

There is desperate need for a reset of society’s view of what happens in shops. If Parliament is going to give responsibility for upholding the law to individual groups—many of these offences are to do with age-related sales—it should give them protection for upholding the laws that it passes.

Q Paddy Lillis talked about the stand-alone offence in Scotland. You were a prominent campaigner for that. What assessment have you made of that, since its inception?

Paul Gerrard: I gave evidence to the Scottish equivalent of this, when Daniel Johnson MSP’s Protection of Workers (Retail and Age-restricted Good and Services) (Scotland) Bill was passed. Our sense is that it resulted in the police in Scotland taking incidents far more seriously. It is quite hard to come by data, but the data that I see tells me that for attendance at the scene when we report incidents, Police Scotland is one of the five best forces in the country.

Paddy referenced this: when a report is made of violence in stores in Scotland, the individual is arrested 60% of the time. England and Wales are nowhere close to that; here, it is penny numbers. I do not pretend that this is empirical, but our sense as a business is that the protection of workers Act in Scotland increased the importance of this for the police, and the police have responded. If we could get to the position of 60% of reported violent offences resulting in an arrest, my colleagues would be very grateful, as would Paddy’s members, and all the members of the British Retail Consortium.

Q One of our witnesses on Tuesday—it has completely escaped my mind which one—said it was very important that retailers did their part of the job too in ensuring that shops were safe environments to work in and not easy to steal from. I want to give Helen and Paul in particular the right to reply on that, because I thought you might want to.

Helen Dickinson: I agree completely with that comment. The reason why over 90 chief executives signed the letter to the Home Secretary from right across different parts of retail was that they are concerned about the fact that they are doing all they can, but feel that there is nothing more they can do. Paddy mentioned some statistics.

How do I describe it? It has two big impacts: one is financial, on the bottom line, how the profit of companies will be impacted unless they do everything that they can to address what could impact their business; and the second impact is on their biggest asset, which is their people, whether that is in absenteeism, morale or motivation to do their job well. Those two motivating factors, from a business leader point of view, mean something to every single business leader that I talk to. Literally, that is probably the thing that comes up most in the chief executive conversations that I have, because they feel that they have done everything that they can and that they are running out of road in terms of things that they could do.

The Minister asked about facial recognition, and I know that that is being explored by a lot of people. There have been various announcements about body cameras. People pay money into business improvement districts and regional partnerships. We have the Pegasus Project, which is trying to get better co-ordination across different parts of the police, specifically focused on organised gangs. That is being funded by retail businesses. They are not handing it all back and going, “It’s someone else’s problem.”

That is my answer to whoever it was. I am very happy to put them in front of any retail business, and I am sure they will be given lot of reasons. Paul, I do not know if there is anything you want to add.

Paul Gerrard: The Co-op is one of the businesses that is funding Operation Pegasus. Over the past four or five years, we have spent £200 million on security measures in our stores. That is four times the sector average. If you go into some of our stores, you will see state-of-the-art CCTV, body-worn cameras and headsets. We have increased our guarding budget by almost 60% from pre-covid days. We are constantly investing. We have had a problem with kiosks, where people jump behind the kiosk counter, often armed, terrifying colleagues who are still in the kiosk. We have just invested heavily in new kiosks to stop people from doing that.

Helen is absolutely right: the retail sector takes this really seriously. We consider the first responsibility to be ours, which is why we invest as much as we do to keep colleagues and shops safe, but we are getting to the point with some stores in the Co-op estate and across retail where it is increasingly hard to work out how to run a store that keeps colleagues safe and can make a commercial return. That will mean that shops will close, and we all see what happens when shops close: communities face tough times.

I have heard the police express that idea that we are not doing anything. They have had a similar, less-than-polite response from me when they have said it, because it is patently untrue.

Paddy Lillis: It is 21st-century Britain, and we have retail workers with body cams on—it sounds like a war zone. At the time, we are trying to get things right and get people back into the towns and city centres, but we are helpless. It is a societal problem, something we all need to work towards addressing. We must put the support we need behind retail staff and businesses. I have worked with them. Security measures just last year cost £1 billion, with more and more going in, but somewhere along the line we all pay for that. It is a massive problem that has to be addressed.

Q I am interested in the answer that Helen gave to the Minister about why retail workers should be a special case. I wonder if you would speak a little more about that. My understanding is that attacks on teachers, doctors, leisure staff, pub staff or whatever have not increased in particular in recent times, whereas we have seen this tremendous surge not only in organised crime in shops, but in assaults on retail workers.

The reason why the Government—rightly—responded to proposed changes for emergency workers was that we had seen a huge increase in activity: attacks on vehicles, on people, and everything else associated with that. Helen, would you like to talk a little bit more about that, and just clarify that it is also your understanding that it has soared in the retail sector, whereas some of the other categories that the Minister referred to have, in fact, remained relatively static?

Helen Dickinson: I think Paul summed it up. I cannot comment on behalf of other industries, because I am not close to what might be happening. I engage a lot with my peer group across different sectors, and it does not come up in the same way as it does when engaging with my members.

Paddy Lillis: Retail is an easy target for people. It is an easy way to make money, as Paul outlined earlier. In today’s climate, as I said, there are three areas: the cost of living, addiction to alcohol and drugs, and now the criminal gang element. The retailers rightly told me that this is a golden quarter. It is a golden quarter as well for the criminal gangs, because they are in there robbing the shops under the cover of thousands of people shopping every day.

Paul Gerrard: If you were to ask people who have been in retail for decades, nobody would say they have seen anything like this, even during covid. No one has seen this scale of crime and the—often weaponised —violence and abuse that goes with that. It is out of control. We released CCTV footage earlier this summer, and it is like a riot trying to get into some of our stores, because people are intent on stealing and causing violence and abuse. I do not think anyone in retail—Paddy has been in and around retail for much longer than me—has seen it like this before.

Helen Dickinson: Businesses such as the Co-op—in convenience— have often been at the frontline, because there is that proof of age required when somebody is buying alcohol or cigarettes or whatever else it might be. He is seeing that escalation, but there are other sectors that would never have raised this as an issue now bringing it up as the most significant thing impacting their business. One of my members is a beauty business with only one or two staff members in its stores. It has the same organised gang turning up, week in week out, using abuse and violence to basically get the staff to step back so that they can literally just sweep the whole stock. A business like that is potentially going to shut up shop, because it is not worth it in terms of loss. I do not know if we have quite answered your question.

Q I think you have—I am quite content with that.

Paul, in your earlier evidence, you talked about the difference that you believe the change has made in Scotland. I think you said that there was a 60% arrest rate. I think it is probably in single figures south of the border. How much of that do you think is due to the law change, and how much is maybe a change in police policy, or the fact that police numbers have increased a little in Scotland?

Paul Gerrard: I am not sure I can talk to the latter point. I would say that in Scotland we see a police force that is taking it more seriously. Maybe they have more officers; I do not know. They take it more seriously. I think Daniel Johnson MSP’s Protection of Workers Act has sharpened minds and given a really strong message that the Scottish Parliament considers an attack against a shopworker to be a particular kind of crime. I said that there is a 60% arrest rate on reported violent incidents. We are absolutely nowhere near that in England, because they are not turning up enough to do that.

Helen Dickinson: The visibility of the tracking means that it prioritises the resource. That then increases the response rate, and it becomes self-fulfilling.

Q Even in England, we saw a huge cut in the number of police officers across the country since 2010. At least we are getting back to a point now where we actually have more police officers again. Do you think that is actually going to make a difference, and might it lead to more activity in shops—the retail world—than it might have done otherwise?

Helen Dickinson: Not without the measurement to be able to prioritise it.

That is helpful, thank you.

You do not have to give evidence!

Q Good afternoon, Clare. Thank you for being here today to give evidence, and for the tremendous work you do in this particular space. We have heard your name crop up time and again because of the work you have done, so we do appreciate that. We have seen a few changes to legislation in relation to the sentencing of those responsible for domestic homicide. How does the Bill do more in that space?

Clare Wade: Clause 24 encapsulates one of the recommendations in the review, building on the secondary legislative proposals to put into law the aggravating factor of killings at the end of a relationship. I have to say that it looks a little odd in the Bill because it is, as it were, stand-alone. The intent behind the policy is to have a coherent legislative policy that addresses all the harms, and addresses the particular harms in these cases. We now have in the secondary legislation the aggravating factor of coercive control as something that has happened in terms of the history of the relationship by a perpetrator towards a victim, and vice versa—it is a mitigating factor as well.

Obviously, these killings nearly always happen within the context or confines of domestic abuse and, in the cases we looked at, we found that there was frequently an escalation in domestic abuse when the victim—in the majority of cases, a woman who is killed by her male partner—wants to leave the relationship. That particular recommendation was made because not only is that a real harm, and that represents the real danger, but the policy underlying the other recommendations is one that places the concept of controlling and coercive behaviour at the forefront of the thinking.

The real harm in terms of coercive control, which the law does not yet recognise, is entrapment. It is not fear, as in being continually afraid, and it is not necessarily physical injury. It is entrapment, which is what prevents people who are being abused from leaving relationships. Putting that into legislation as an aggravating factor that can be taken into account by the courts would make it clear that that is one of the harms, but it would also, I suppose, bring to our consciousness the real harm in domestic abuse.

Of course, we are really only just getting to the stage where we understand what underpins domestic abuse—in my view, it is controlling and coercive behaviour, as I have explained it in the report I wrote.

Q That is very helpful. In our evidence on Tuesday, Nicole Jacobs, the Domestic Abuse Commissioner, spoke of your report. She welcomed the measures that were included in the Bill, but she went on to say that she lamented those recommendations that had been excluded and believed that your package of recommendations should have been taken as a whole. What do you think the Committee needs to add to the Bill to fully recognise the importance of your work and get this right?

Clare Wade: Two things, I suppose. It is important to look at the terms of reference that I was given when I was asked to conduct the review. Two issues presented themselves in terms of problem areas, as it were, in the law as it stands. One of them was an issue that had really precipitated the whole campaign. In our sentencing framework for murder, we have various stages by which we attribute the gravity and seriousness of the offence. One of those involves taking a weapon to the scene of a murder with the intention of using it, and then using it in committing the murder. There is a 25-year starting point in relation to that, whereas most domestic murders—and we found this to be the case in the cases we looked at—have a 15-year starting point.

One of the problems identified was: why was there that disparity between people who have taken a knife to the scene and been convicted for doing that, and people who may not have taken a weapon to the scene but have reached out and used a weapon? We found that the real harms in the way in which those offences are committed were nothing to do with taking a knife to the scene—that really was a red herring. The real harms that were being identified by secondary victims—the mothers of the women who had been killed—were things such as overkill. One of the things that struck me when I looked at the cases was something that Julie Devey said, which was: why is it that you can take a knife to the scene, stab somebody once in a single stab wound and face a starting point of 25 years for your minimum term, and you can stab somebody 79 times in their own kitchen with a knife and face a starting point of 15 years?

I was able to discern that one of the harms was something that we have called overkill, which has now been accepted as something that should be legislated on by the Government. However, I concluded on the overall package that the whole issue of taking a knife to the scene, the 25-year starting point and the disparity was a complete red herring, and that the issue of taking a knife to the scene will inevitably lead to anomalies—for example, you might have a man who kills his ex-partner, takes a weapon to the scene and is therefore eligible for a 25-year starting point, but in real terms of culpability it is no different to killing her in the home. The real issue was something else—other sorts of harms that pertained to these murders.

Therefore, the whole 25-year starting point should be disapplied when we are dealing with domestic murders. Nothing is lost by that. That has obviously been rejected, and there is now a further consultation on having a 25-year starting point or a higher starting point, but it is completely otiose in my view if you take into account the real harms that we have successfully identified and that the Government have taken on board. You will reach the same result in coming to the sentence, but you will reach it by identifying the real harms. That is one thing that I would say probably needs to be looked at again.

The other thing is strangulation. We looked at the killings in our sample—and obviously the literature, frontline responders and everything else—and strangulation is a gendered form of killing, in the sense that in all but one of the cases that we looked at in our sample, it was used as a method of killing a female, usually by an abusive male, within a context and a history of controlling and coercive behaviour. So I recommended that strangulation ought to be an aggravating factor, and that has been rejected. The argument, as I understand it, is that it places too much emphasis on the mode of killing, but it does that for a reason because it is a gendered form of killing.

The corollary is that the use of a weapon, which is not a statutory aggravating factor but is often seen as an aggravating factor, should in my view not be an aggravating factor necessarily. Women who kill men who abuse them always use a weapon, because it is not possible for them to commit a murder without doing so. So those two factors concern me. I am with Nicole on that.

Q That is pretty comprehensive. Can I ask you about clauses 23 and 24 and the aggravating factors in relation to grooming and the end of a relationship? Do those clauses go far enough?

Clare Wade: I will speak to clause 24 first, if I may. I think it probably does go far enough in terms of that point because it says “connected with” the end of the relationship, and that is sufficiently comprehensive. In terms of grooming, on the face of it, yes, I suppose. I am not sure if there is a definition. I am always perplexed by the lack of a legal definition of grooming. Even in the cases that I do, we all have an understanding of what it is, but I am not sure it is properly defined. I did not see anything, but I might have missed it. When we ask victims, “What do you understand by grooming?”, for example in the cases that we do, they say, “Somebody pretending to be your friend, but not being your friend and using you for sex.” It is not defined anywhere and it is such an important concept.

In many of the sexual offences, particularly historical sexual offences, grooming is now taken into account in directions to juries about consent. They are asked to consider whether consent was true consent, given the background of grooming. It is a massively important concept. It is floating around, but maybe not sufficiently nailed down—I don’t know. But yes—on the face of it, yes.

Q Clause 30 addresses assessing and managing the risks posed by the coercive behaviour of offenders. It refers to an “intimate or family relationship”. Do you think the wording of that clause is clear enough? We were just talking about clarity around grooming, and I agree with you there. Is the wording of clause 30 and the reference to “intimate or family relationship” too wide? Or do you think it is okay?

Clare Wade: I would have to consider it further, but I suspect it is probably all right. We are talking about the management of risk factors within that context. I imagine it is probably all right, as you are talking about convicted persons.

Q I am particularly interested in the “intimate relationship”, because that can take many different forms.

Clare Wade: “Intimate relationship”, certainly in the work that I do, would mean partner/ex-partner. I will turn that round—do you think that is too narrow?

Q Fair enough.

Clare Wade: I think it is probably right if we look at some of the definitions elsewhere, certainly in terms of the controlling and coercive behaviour that it brings into the management.

Q That is helpful; thank you. This is perhaps not your bag, but clauses 11 and 12 address the offence of encouraging and assisting serious self-harm by a victim. Would you hazard a comment on whether those clauses are fit for purpose?

Clare Wade: I was thinking about that in terms of some of the scenarios that present themselves in domestic abuse situations. As I recall, the mens rea for that is intentional, which means that it is not too broad. However, off the cuff, I would say that it certainly fits in with some of the cases that we see that result in the suicide of people who are trapped in relationships that they cannot escape—for whatever reason: whether a combination of mental health factors or entrapment. Therefore, I would probably support that. I do not know whether it needs to be narrowed down or not, but certainly, for more remote relationships, it is an important legislative provision.

Okay, fair enough.

Q I just want to say that I thought that your review was absolutely excellent, and it has contributed in a really profound way to the way we talk about these issues in Government. Following the passage of the Domestic Abuse Act 2021, it has been probably the most critical piece of work that has been produced for the benefit of Ministers. I reread it before you came, and I was just so impressed by how comprehensive and detailed it was.

We all know that you are, of course, supportive of the clause 24 provision, which mirrors what you recommended, but I wanted to ask you about some of the things that you have just said. You said in your report that you found that coercive control underpins all domestic abuse. I think that you also made reference to the fact that there is now a consultation happening on minimum sentences in two regards. The first is in relation to whether any killing—any domestic homicide, to use your language—where there has been coercive control should attract a minimum sentence. I think that that goes a bit wider than anything that you put in your review. I will ask you about that first, and then I will go on to the second part.

Clare Wade: My view about setting minimum sentences in stone is quite strong. I am actually not a fan of minimum terms and starting points because I think that it takes away quite a lot of judicial discretion. Even though they are only starting points, we often get stuck with them. There is an argument that schedule 21 is probably not fit for purpose. As I say in the paper, it is frozen in 2003 and it comes with the problem that there is always this issue of, “Do we add another starting point in?” I think that the 25-year minimum terms has done nothing but cause problems.

Q Please correct me if I am wrong, but am I right in saying that that was a response to the Ben Kinsella case in 2008?

Clare Wade: Yes, it was.

Q I worked a bit with Carole Gould; I think that you referred to her when you gave the example of her daughter’s case. Would you also agree that, in a way, it served to obfuscate what we would wish to say about some of these killings, because it creates this artificial distinction with what I think are more like gang-related crimes?

Clare Wade: Yes, that is one of the problems, I think. There are two issues. First, it creates legal anomalies anyway, because once you delineate a starting point for something like that, you have all sorts of problems about, “When is it taking something to the scene?” and you then have laws saying that taking a knife to the doorstep is taking it to the scene but taking a knife to another room is not taking it to the scene. That just reduces confidence in the law, I think; it just causes anomalies.

Secondly, as it stands, it does not fit with the other sorts of categories of harm within schedule 21 because, as I say in the report, it does not consider the vulnerability of the victim. It has one harm at purpose. That has caused all sorts of issues in terms of an obvious disparity, and we identified that disparity in the review. There is a disparity of six and a half years on average.

So it causes problems, and yes, you are absolutely right: it obfuscates the real issues because, by looking at the cases that we have looked at, looking at the literature and looking at our experience and the experiences of frontline responders and so forth, we know that the real issues are about what is now being identified as overkill or gratuitous excessive violence. The real issues are about, “Why do we not have a proper forensic approach to domestic abuse?” We do not have that. The whole idea of placing controlling and coercive behaviour and the model that I have identified at the forefront of the thinking is to achieve a proper forensic approach. We will not have this woolly attitude and people saying, “That’s not proper abuse,” and basing stuff on myths and so forth.

Q I will not use up all the time. I could ask you a lot of questions, but I will ask you a couple on what you were saying about strangulation. You will recall that one area of your report, your conclusions at paragraphs 8.2 and 8.3, was about the “rough sex” manslaughter issue. You looked at more than 100 cases relevant to that, and you were dealing with the starting point. There were two issues really. There was the culpability categorisation that the judge had found in those cases. Am I right in saying that you thought a starting point was appropriate for cases of that nature?

Clare Wade: First of all, there were only two cases in the actual sample that came within the “rough sex” category: gross negligence manslaughter and unlawful act manslaughter. In one of those cases, culpability was levelled at category C, so around the middle, and in the other at category B, so higher culpability.

I said that those cases should always involve higher culpability, because the risks of some of the behaviour, in particular with strangulation—while that was not apparent in the cases that we looked at—are high. At the moment, the law distinguishes between “obvious” and “high”, and my view is that this is just a legal nicety when you are talking about strangling or choking somebody. All the experts will say—

Q It is automatically high risk, and it is not understood that way by judges.

Clare Wade: No, it is not. The court is always constrained in terms of section 36 applications and referrals. They are always constrained by what evidence was before the sentencing court. There was found to be this distinction between “obvious” and “high”, and I am not sure that can exist.

My view is that we need to look at everything, and look at society as a victim. We need to dismantle the cultural scaffolding that goes with some of this offending, if we are really going to tackle domestic homicide. There is such a resonance with other harms. Even the harm of overkill, which is about obliterating women’s bodies because of anger and the motivation to kill and so forth, is apparent in strangulation. It was very important to look at that.

Q I want to ask you one final question. The Ministry of Justice has written to the Sentencing Council about the culpability issue we have just been discussing. The Sentencing Council’s reply was that these cases should always be viewed as high culpability, but we know that they are not always. Are you able to comment on that? I would say that it is a source of tension at the moment.

Clare Wade: It is a source of tension. The Sentencing Council has also said that the cases are decided on their own facts. I would agree that a real tension is there. In only one of the cases that we looked at did the sentencing judge find that it was high culpability.

Q There are a number where they are viewed in the category below: category C.

Clare Wade: Yes, there was another one that was category C—given that there were two cases, 50% of them were category C.

The review is probably the first document that brings into consideration the current thinking of academics, campaigners, specialists and doctors. There has been a lot of research done, for example, by Dr Cath White on strangulation. It brings it all into play, and we are trying to have a coherent approach. The beauty—if I can call it that—of using the coercive control model, is that it gives us that. As I said before, ultimately we want a proper forensic approach to domestic abuse in criminal law.

My view is that that approach is lacking at the moment, and that is why we struggle. That is why there is seeming injustice, for example, when a minority of women kill their abusive partners. They do not always get justice, as some of the research shows. Only by having that proper forensic approach across the board will we be able to change things. That is important.

The other point is that the Sentencing Council is conducting its own review—I have not seen all the cases it looked at—and what applies to that applies to my review as well: sentencing comments in themselves are an imperfect way of measuring everything that underpins these cases.

Q Especially as the victim cannot give evidence.

Clare Wade: The victim cannot give evidence. If you are looking at sentencing comments, you are not looking at the evidence in the case. Take the two cases with which we started the review, those of Ellie Gould and, in particular, Poppy Devey Waterhouse—the review was initiated by the campaign on those cases. I was able to look at the prosecution case files and see that some of the factors we were able to identify in looking at the evidence were apparent in those cases.

In one of the cases, there was some stalking; in both cases, the killing happened at the end of the relationship where the victim wanted to leave the relationship; there was a little bit of violence. We found those factors, but they were not necessarily apparent from the sentencing remarks—one had to look at the papers through the coercive control prism to be able to identify them. Looking only at sentencing remarks is an imperfect way of looking at all these cases. That is why I welcome the Law Commission looking at the issue of defences.

Q I was grateful that you were able to comment on the issues around self-harm. The Bill also covers policing. Do you have a view on the way the Bill treats police-perpetrated domestic abuse issues, the specified offences in relation to gross misconduct, and the requirement of vetting? It may not be your bag.

Clare Wade: I would obviously welcome that. We have had some very high-profile cases where police officers have committed dreadful offences. Public confidence, particularly the confidence of women, needs to be restored in policing, so I would welcome that transparency.

I suppose there is an underlying cohesion in some of what we say. For example, one of the questions that we wanted to answer in the review is how domestic homicides sit and fit with misogynistic killings of women generally. I hope that by identifying the real harms and placing them at the forefront of the law, we are able to show that. That goes back to some of the things we were saying a moment ago, namely that strangulation is a particular harm. It is pertinent to domestic killings, as we identified in the review, but it is also something that happens in other misogynistic killings of women. It is important to not just be able to isolate domestic killings of women, but have a policy that encompasses the misogyny that underpins some of the awful offences we have seen in the last few years.

That is very helpful—thank you.