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Ministers at odds over domestic violence bill

www.guardian.co.uk
Ministers at odds over domestic violence bill

Alan Travis and Lucy Ward
Tuesday December 2, 2003 The Guardian

Legislation introducing the biggest overhaul of the domestic violence laws for 30 years is to be published today with a behind-the-scenes clash between David Blunkett and Harriet Harman unresolved over whether a "provocation" defence should be abolished in such murder cases.

The domestic violence bill will also contain a controversial proposal for a "stay-away" order which courts may impose even when the defendant has been acquitted and which will carry a prison sentence of up to five years.

Ministers will also announce that they intend to introduce a new offence of causing or allowing the death of a child or vulnerable adult. Known as "familial homicide" this will close a loophole in a small number of cases where both parents jointly accused of the murder of their children have escaped justice because they have remained silent or blamed each other.

In one recent case a four-year-old boy was found with 54 wounds on his body, including adult bite marks. His foster parents were sentenced to eight years for child cruelty but could not be charged with murder because the police could not prove who struck the fatal blow.

The dispute between ministers over whether or not to scrap the defence of provocation will be fuelled today by Ms Harman, the solicitor general, when she makes a strong plea to abolish this defence.

In a text released last night Ms Harman admitted she had not yet persuaded all her colleagues to include it in the legislation: "My own view, and this is not as yet government policy, is that the provocation defence should be abolished."

She said she was not happy with the defence which re duced murder to manslaughter as it led to the defendant arguing: "Yes I killed her, but it's not my fault, it's her fault, because she provoked me." Ms Harman said the effect was to blame the victim for her own death.

But Mr Blunkett, the home secretary, is believed to be strongly resisting the move on the grounds that it is also used by women who commit offences after years of abuse by men. "They would have much less legal protection if this was removed," said a Home Office source.

The government has tried to resolve this dispute by asking the Law Commission to undertake a quick inquiry into the issue. It is not only looking at the defence of provocation and diminished responsibility in domestic violence cases.

It is also looking at whether there should be a new "Tony Martin" defence. This would include situations where although the defendant was entitled to use force in self-defence, he killed in circumstances in which a plea of "self-defence" is not available because the use of force was excessive.

In an unusual move the Law Commission is due to report in the spring in time for any amendments to be included in the domestic violence bill before it reaches the statute book.

The Law Society has also raised concerns about the government's plans for restraining or "stay-away" orders which would be used like a yellow card so that the defendant would face prison if he disobeyed it.

Ms Harman said the new stay-away civil order with its criminal penalties if it were breached would be available to magistrates and crown courts even in cases where the defendant had been acquitted on criminal charges.

Janet Paraskeva, the president of the Law Society, said she had strong reservations about the use of a civil order against someone just acquitted of criminal charges.

"We believe that the criminal court should refer the case to the family court for consideration of the issue."

Ms Harman said: "I hope that the fact that we are having a bill on domestic violence -the first legislation in over 30 years - will in itself help to challenge some of the old attitudes. It will make it clear that the state's view is that domestic violence is always unacceptable."