Clause 10 - restraining orders: England and Wales
Domestic Violence, Crime and Victims Bill [Lords]
10:30 am
Ms Vera Baird (Redcar, Labour)
I have four small points on which I seek reassurance.
First, there is the lacuna pointed out implicitly in the amendments of the hon. Member for Somerton and Frome. There is concern that there may be a gap in time when the victim will not be protected after somebody has been acquitted of a criminal offence and before the evidence on which a restraining order can be considered has been served on him or her to give them an opportunity to deal with it. If the defendant has been convicted, there can be bail pending sentencing that can include the restraint order, so he can be ordered not to go near the defendant. However, if he has been acquitted, his bail term has come to an end and, although I accept entirely the Minister's aim that the material on which the application for a restraint order post-committal will be made ought to be served in the proceedings if possible, there will be times when events have moved on during the course of the trial and issues have been raised in it so that it is not practical to give the defendant adequate notice to be able to deal with all matters straight away, and an adjournment would be inevitable.
The power in new section 5A is to make an order prohibiting the defendant from doing anything if it is considered necessary to do so, and, if it is possible under section 3 of the Protection from Harassment Act 1997 on the way in which evidence can come in on a
civil basis, to bring evidence to justify a temporary injunction. There is also a power to have a temporary injunction under that Act. My guess is that those provisions combine to allow a court before which the restraint order will soon be heard to make a temporary restraining order until the evidence is heard, which will be sufficient to protect the victim from any further assaults or misconduct in the meantime. That is obviously a key to the purpose of this legislation, so I would like to be reassured that I am right about that, or that by some other route, safety would be guaranteed at the point of acquittal.
From the other vantage point, it seems clear that a restraining order can be, for as long as is necessary for the protection of the victim, wide enough to direct that the defendant should do anything necessary. That means that we will have to face the possibility, perhaps frequently, that somebody in a domestic violence case who is acquitted of a criminal offence will be ordered to leave his home under these proceedings. Is that intended? I do not have great concerns about the matter; the alternative is that the complainant would go straight to the civil court for that to happen. However, we have to be ready to face the fact that, on acquittal, somebody may be ordered to leave their home. I want to be sure that that is intended and that I have not understood the matter too widely.
I also seek a reassurance that, on acquittal, when a criminal court is functus officio—it has done its job; the criminal proceedings are at an end—the defendant's legal aid will carry on, so that in what are now purely civil proceedings, criminal legal aid will none the less cover the person in question so that he can continue to be represented.
Lastly, and not altogether frivolously, although with a slight twinkle in my eye for a reason that will become clear, I mention new section 5A(6), which states:
''A person made subject to an order under this section has the same right of appeal against the order as if—
(a) he had been convicted of the offence in question before the court which made the order, and
(b) the order had been made under section 5''.
That means following on a conviction, and it seems to suggest that an appeal against a restraint order at a magistrates court would go to the Crown court. Those acquainted with the Court of Appeal criminal division will be amused to appreciate that it also means that a restraining order in the Crown court would be appealed to the Court of Appeal criminal division. That would be a civil order, heard on the civil standard, and it might involve all manner of family considerations; I wonder whether their lordships know what is coming.