moved Amendment No. 27:
After Clause 5, insert the following new clause—
(1) Subsections (2) to (4) apply where a person ("the defendant") is charged in the same proceedings with an offence of murder or manslaughter and with an offence under section 4 in respect of the same death ("the section 4 offence").
(2) Where by virtue of Article 4(4) of the Criminal Evidence (Northern Ireland) Order 1988 (S.I. 1988/1987 (N.I. 20)) a court or jury is permitted, in relation to the section 4 offence, to draw such inferences as appear proper from the defendant's failure to give evidence or refusal to answer a question, the court or jury may also draw such inferences in determining whether he is guilty—
(a) of murder or manslaughter, or
(b) of any other offence of which he could lawfully be convicted on the charge of murder or manslaughter, even if there would otherwise be no case for him to answer in relation to that offence.
(3) Where a magistrates' court is considering under Article 37 of the Magistrates' Courts (Northern Ireland) Order 1981 (S.I.1981/1675 (N.I. 26)) whether to commit the defendant for trial for the offence of murder or manslaughter, if there is sufficient evidence to put him upon trial for the section 4 offence there is deemed to be sufficient evidence to put him upon trial for the offence of murder or manslaughter.
(4) At the defendant's trial the question whether there is a case to answer on the charge of murder or manslaughter is not to be considered before the close of all the evidence (or, if at some earlier time he ceases to be charged with the section 4 offence, before that earlier time).
(5) An offence under section 4 is an offence of homicide for the purposes of the following provisions—
Article 17 of the Criminal Justice (Children) (Northern Ireland) Order 1998 (S.I. 1998/1504 (N.I. 9)) (mode of trial of child for indictable offence);
Article 32 of that Order (power and duty to remit children to youth courts for sentence)."
My Lords, in moving government Amendment No. 27 in the name of my noble friend, I shall also speak to the government amendments grouped with it.
The amendment brings the evidence and procedure for trials for the Clause 4 offence—which your Lordships discussed in detail in the earlier part of the Bill; of causing or allowing the death of a child or vulnerable adult—in Northern Ireland into line with those for England and Wales. I am well aware that your Lordships have debated at length the provisions in the Bill relating to familial homicide. Those measures will address a particular loophole which has been discussed at some length. The Government's view is that the same provision should apply in Northern Ireland.
When my noble friend moved this amendment in Committee, the noble Baroness, Lady Anelay, and the noble Lord, Lord McNally, requested that the amendment was debated but withdrawn to allow for consultations and soundings to take place in Northern Ireland. We hope that there has been sufficient time for that to take place.
Amendment No. 27 provides a procedure in Northern Ireland for dealing with the evidence and procedure in relation to offences under Clause 4. It mirrors what applies in England and Wales with the exception that it does not refer to trial by jury because of the different system that applies in Northern Ireland in relation to the so-called Diplock courts—judge-alone courts—and therefore the possibility that someone may not be tried by a jury for the offence under Clause 4. I beg to move.
My Lords, the noble and learned Lord the Attorney-General is right in two respects. We had a full and productive debate on Clause 5 before the dinner break. I certainly welcome him to the Dispatch Box, not that I wished to see the noble Baroness, Lady Scotland, depart, but I was rather shocked that she might be expected to respond to this debate and to the dinner break business. I am glad that the noble and learned Lord has stepped into the breach.
The noble and learned Lord is also right to say with regard to this amendment that I requested that the Government should not press it in Grand Committee where amendments may be made only with the consent of all noble Lords present. The amendments had been tabled at the deadline for tabling amendments in Grand Committee and I did not consider that I had had sufficient opportunity to consult on them. I confirm that I have contacted colleagues in another place and organisations that represent interests in Northern Ireland. I am aware that there are many concerns in Northern Ireland regarding the issues that we have raised in Clause 5 as they affect England. Therefore, although I shall not object to the amendment being made, as I did not object to the Government's Amendment No. 21 to Clause 5 being made, between now and Third Reading we shall consider very carefully the fuller explanation given by the noble Baroness, Lady Scotland. I still take exception to subsection (2) of the new clause in government Amendment No. 27. However, it ends with the words,
"even if there would otherwise be no case for him to answer in relation to that offence".
moved Amendment No. 28:
After Clause 5, insert the following new clause—
(1) Section 5(1), (2) and (3A) has effect in relation to proceedings before courts-martial with the following adaptations.
(2) A reference to an offence of murder or manslaughter or an offence under section 4 is to be read as a reference to an offence under—
(a) section 70 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18),
(b) section 70 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19), or
(c) section 42 of the Naval Discipline Act 1957 (c. 53), for which the offence referred to in section 5 is the corresponding civil offence (within the meaning of that Act).
(3) A reference to the court or jury is to be read as a reference to the court."
My Lords, this is another government amendment standing in the name of my noble friend Lady Scotland of Asthal. It relates to courts-martial. It is in the same vein as the previous amendment and applies the evidence and procedure provisions in Clause 5 to trials by court-martial.
It is right to remind your Lordships that courts-martial have the power to try persons subject to service law for civilian offences. They do not have jurisdiction to try murder or manslaughter offences committed in the United Kingdom, but they do if the offence occurs outside the United Kingdom. The purpose of the amendment is to ensure that if a court-martial is required to try a case involving a Clause 4 offence, the evidential and procedural provisions of Clause 5 apply to the extent necessary for that trial. I beg to move.
My Lords, I have before the Judicial Committee of the House attacked Section 70 of the Army Act and Section 70 of the Air Force Act; I will not weary noble Lords with that litigation, which is still ongoing. Is it intended that Clause 4 may be tried by court martial if the offence occurs in this country?
My Lords, I shall have to write to the noble Lord about that. I infer that the answer is yes, but I shall write to him and copy that to other noble Lords who have taken part in our debates.
My Lords, that would cause something of an anomaly, because murder and manslaughter would be triable in the ordinary courts in this country. If Clause 4 were to be tried by court martial, it would be very unusual.
My Lords, the noble Lord will be aware that there are arrangements for a concurrent jurisdiction in certain cases, in which particular offences or alleged offences can be tried either under court martial or in the domestic courts when the offence has taken place in the United Kingdom. I am aware of that myself because, on some occasions, it is for me to direct where a trial should take place. I hope that he will forgive me for not being in a position to answer straightaway, but my letter will deal with that issue. Particularly given what has been said—that it would be desirable to see a Clause 4 offence and murder or manslaughter coming together—I understand what lies behind his question.
My Lords, Amendment No. 29 is a further government amendment. When Clause 6, which relates to the establishment and conduct of homicide reviews, was debated in Committee, a question was raised by the noble and learned Lord, Lord Donaldson. I am sorry that he is not in his place to hear what I wanted to say, but he made an extremely helpful intervention. He pointed out that the clause could prevent such a review taking place before there was a finding of fact that the homicide had taken place as a result of violence, abuse or neglect by a relative, someone with whom the deceased had an intimate personal relationship, or a member of the same household.
The Government believe it important that reviews take place as soon as possible after the deaths so that lessons can be learned and implemented quickly. That is a key reason behind the provision for the reviews. We would not want to prevent such reviews taking place before the conclusion of a criminal trial if appropriate—I emphasise "if appropriate"—but we do not want to prevent reviews taking place where no trial takes place either. Obviously—it is why I emphasised "if appropriate"—it is important that any criminal proceedings are not prejudiced as a result, and the guidance which will be prepared will make that perfectly clear.
The amendment will allow homicide reviews to take place in circumstances where the death has, or appears to have, taken place as a result of violence, abuse or neglect by a relative, someone with whom the deceased had an intimate personal relationship, or a member of the same household. It gives me particular pleasure to have taken this amendment on, as it is very much as a result of the work of my right honourable friend the Solicitor-General—my deputy, Harriet Harman—that such a provision finds its way into the Bill. I beg to move.
moved Amendment No. 30:
After Clause 6, insert the following new clause—
"JUDICIAL DIRECTIONS AND INTEGRATED COURT
Provisions of this Act concerning domestic violence shall be applied according to interim judicial directions given, and such as may be given, pending establishment of an integrated court with civil and criminal preventative and remedial jurisdiction."
My Lords, the noble Lord, Lord Campbell of Alloway, has asked me to move the amendment on his behalf, as he is not able to remain here for personal reasons.
We discussed this issue at length in relation to Clause 1 of the Bill, namely that it is desirable that, if there are to be criminal and civil remedies provided for breaches of non-molestation orders, an integrated court should be established with both civil and criminal preventative and remedial jurisdiction. One of the criticisms of Clause 1 that has been made in the House is that the non-molestation order is made by a civil court and by a civil judge. Making a breach of the order a criminal offence means that the order has effectively to be transferred to a criminal court, decisions have to be taken by the Crown Prosecution Service and the matter is placed in the hands of another judge.
There are pilot schemes in parts of the country where an attempt is being made to integrate civil and criminal jurisdiction, but I am told that they tend to be civil one week and criminal the next. While there are no doubt valuable experiences to be gained in that way, it might be better for an individual case to rest in the hands of one judge, whether he is involved in granting the non-molestation order, the civil remedy or dealing with the case as criminal offence. I beg to move.
My Lords, the intention behind the amendment is somehow to produce the establishment of an integrated court, with both criminal and civil jurisdictions and remedies in domestic violence cases. A similar amendment was debated in Grand Committee on
"look into the possibility of integrated courts to see if they might avoid the problems which now arise".
The Government are working to improve the handling of domestic violence cases in court. My noble friend Lady Scotland said much about the matter on the last occasion and I shall not repeat that. Regarding Clause 1, criminalising breaches of non-molestation orders is already going to ensure that future breaches will usually be heard in a criminal court. That will eliminate one of the problems identified in Lomas v Parle.
In addition, my right honourable friend the Solicitor-General and the President of the Family Division, Dame Elizabeth Butler-Sloss, with the support of the Deputy Chief Justice, have recently established the Family-Criminal Interface Steering Committee. It has been established to take a role over-viewing the co-ordination of current work in England and Wales to improve the connecting points, the interface, between the family and criminal jurisdictions and to identify areas which have not been addressed. The noble Lord, Lord Thomas, was right in saying that there are important issues in the relationship between family, civil and criminal proceedings. It is intended to seek to meet the need identified in relation to child protection, domestic violence and private and public family law issues. Anyone with experience of those areas knows that frequently one or more of them come together in the same family or relationship. There may be an issue about child protection, an issue about domestic violence and issues about family law more generally.
The Steering Committee will look at the existing legal framework, structures and procedures, including the primary and secondary legislation; identify what changes it may be appropriate to introduce to improve these relationships—for example, how easy it is to pass information between one court and another which may be important for another set of proceedings; and to recommend changes to be acted on.
It is likely, or at least possible—this is why I have raised the matter—that the work of the committee will touch further on the idea of integrated courts and how they might work in practice. In addition, as the noble Lord, Lord Thomas, said, a number of specialist domestic violence courts have been up and running for some time. Croydon recently established another such court and is considering how it might develop into a more integrated system. There is more to it than simply that the court will sit one week on civil cases and one week on criminal cases.
In summary, the idea of specialist courts is being developed and their effectiveness is being evaluated. The President of the Family Division—the Government and I are extremely grateful to her—and the Solicitor-General are working with others to improve the relationship between the two jurisdictions. We are working with Croydon to try to develop a fully integrated domestic violence court. Because that work is already being done, we say that the amendment is unnecessary.
However, the amendment is also unclear. While understanding what lies behind it, the establishment of an integrated domestic violence court by primary legislation would require detailed legislative provisions on jurisdiction, judiciary, evidence and timeframe, all of which are lacking in the amendment. Therefore, the amendment as drafted would have no practical impact on the work that is already being undertaken.
For those reasons, I cannot accept the amendment, but I hope that what I have been able to say in addition to what my noble friend said in Committee is of interest and will be supported by those concerned about the issue.
My Lords, I am grateful for that response. I have been sent a paper on the integrated domestic violence courts of New York State. An integrated domestic violence court sounds better than the interface referred to by the noble and learned Lord. It is interesting that the IDV courts in New York State hear criminal cases, such as violation and misdemeanour domestic violence cases and matters involving violations of orders of protection. That issue is very much part of this Bill. They also hear family court cases, such as family offences, custody and visitation disputes and support proceedings; and supreme court cases—specifically, contested matrimonial actions. Under the court model, for a family's case to be eligible there must be at least a domestic violence criminal case and one additional matter in another court.
Some of the advantages of such courts set out in the paper I have are, for example, that they are developing procedures for screening domestic violence criminal cases against available databases to determine whether there is an overlapping family or matrimonial case. There is also the provision of specialist counsel. Assigned counsel panels and public defender organisations are all part of that. Furthermore, they have specific provisions for protection of victims and witnesses. The paper states:
"IDV Courts should provide a safe and secure environment in which to adjudicate family related civil and criminal court proceedings".
It states that the following should be addressed: sufficient security personnel; clear and visible signs directing litigants to needed services and waiting areas; safe waiting areas; and planning for court-house safety. Therefore, this is an interesting model which could perhaps be considered by those who are involved in such matters in this country.
My Lords, I thank the noble Lord for allowing me to intervene. I am fairly confident that that model has already been examined. Some of the ideas that people in this country have are based on considering that model and, indeed, models in other countries.
My Lords, I am most grateful, and I am sure that the noble Lord, Lord Campbell, will appreciate that response. For the moment, I beg leave to withdraw the amendment.
moved Amendment No. 31:
Page 5, line 30, at end insert—
"( ) In section 6(3) of the Criminal Law Act 1967 (c. 58) (trial of offences) at the end insert ", save that where the jury find him not guilty of the offence of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861 (c. 100) (assault occasioning bodily harm) or of the offence of racially or religiously aggravated assault occasioning actual bodily harm or common assault contrary to section 29(1) of the Crime and Disorder Act 1998 (c. 37) (racially-aggravated assaults), the jury may find him guilty of the offence of common assault notwithstanding that it is a summary offence by virtue of section 39 of the Criminal Justice Act 1988 (c. 23) (evidence of persons under 14 in committal proceedings)."
My Lords, in Grand Committee I introduced this amendment with a considerable amount of detail, which noble Lords will be pleased to hear I do not intend to repeat verbatim. That introduction appeared at col. GC 233 of the Official Report for
The briefest explanation that I give for the problem this evening is simply that there have been a number of cases where prosecutors and judges have overlooked the necessity of including a specific count of common assault if the jury was to be invited to consider that as an alternative verdict. As a result, convictions for common assault when no specific count was on the indictment have had to be quashed by the Court of Appeal and the defendant has gone scot-free.
In the detail that I entered into on the previous occasion, I recognised that that was not because of any inefficiency, incompetence or ill will by anyone; it is simply that one of those things can happen. I was just trying to resolve that mischief.
I also made it clear that I would certainly not consider pressing the amendment. The reason that I have brought it back is to invite the Government to say whether they have been able to consider my little presents between Grand Committee and Report. I beg to move.
My Lords, I support my noble friend on this amendment. One was always brought up to believe that common assault was not a very serious offence. However, it can be, and when it is committed within a household or a family, in my opinion, it is far more serious. Having searched for the law which should be made relevant to the circumstances of the Bill, I believe that my noble friend's amendment is necessary. I refer, in particular, to its last words, which read,
"the jury may find him guilty of the offence of common assault notwithstanding that it is a summary offence by virtue of section 39 of the Criminal Justice Act".
I believe we must all face up to the fact that assault within a family or household is more difficult to detect, it has a more serious effect and it should be dealt with in the way that this amendment seeks to do.
My Lords, I read what the noble Baroness said in Grand Committee, and the Government's view is that this was a very useful ornament on a Christmas tree. I do not believe that it is right to describe it as a complete Christmas tree in itself, but it is certainly a useful gift on it.
The noble Baroness is right to say that there are some circumstances, although not all circumstances, in which the verdict she would like to see available in certain cases—namely, a verdict of common assault—will simply not be available to a jury because of the way in which the case has come to court. It is not necessary tonight for me to go into the circumstances of where that may happen.
The Government are persuaded by what the noble Baroness said on the last occasion and has repeated tonight that in some cases there may well be advantage in leaving that kind of verdict available to the jury, provided, obviously, that the jury has been properly directed by the judge.
It follows from that that we are well disposed towards the amendment, which I hope the noble Baroness will be glad to hear. However, we are still considering possible amendments or improvements to it including, in particular—I give notice of this now in case anyone wishes to comment on it—the addition of a reference to assault occasioning grievous bodily harm under Section 20 of the 1861 Act. If the noble Baroness and the noble Lord, Lord Renton, who also spoke in the debate, are content, we shall return to this matter at Third Reading.
moved Amendment No. 32:
Page 5, line 34, at end insert—
"( ) In subsection (1) of that section after "an order under this section" insert—
"(a) if the prosecutor asks it to do so, or
(b) if the court thinks it is appropriate to do so"."
( ) After subsection (2) of that section insert—
"(2A) For the purpose of deciding whether to make an order under this section, the court may consider evidence led by the prosecution and the defence.
(2B) It is immaterial whether evidence led in pursuance of subsection (2A) would have been admissible in the proceedings in which the offender was convicted."
( ) After subsection (3) of that section insert—
"(3A) An order under this section takes effect on the day on which it is made, but the court may provide in any such order that such requirements of the order as it may specify shall, during any period when the offender is detained in legal custody, be suspended until his release from that custody.""
My Lords, in moving this amendment, I shall speak also to Amendments Nos. 34 and 39. We now reach Clause 8 which extends the circumstances in which a restraining order can be made under the Protection from Harassment Act 1997 following criminal proceedings. I have tabled my amendments on this clause in four groups.
This particular group, which is strictly a group of probing amendments and would not be pressed, was tabled in response to a thought-provoking letter from Mr Neil Addison, who is a practising barrister and a former senior Crown prosecutor. He is an expert on protection from harassment orders and restraining orders. He strongly supports the proposals in the legislation but believes that they need tidying up if they are to work properly and avoid legal challenges and complicated procedures for police, CPS and the courts.
The issues raised in these amendments have been detailed in a letter which has also been sent to the noble Baroness, Lady Scotland, and Mrs Harriet Harman, the Solicitor-General. I tabled the amendments in this group to give the Government the opportunity to give a considered response to the points he raised and to put such response on the record. I believe that his recommendations merit serious reflection and that the Government have given them serious reflection.
The main problem appears to be that the proposals as currently worded do not follow the wording for making anti-social behaviour orders on conviction as set out in Section 6 of the Anti-social Behaviour Act 2003. In that Act it was made explicit that the CPS has the power to ask for anti-social behaviour orders on conviction under Section 1C of the Crime and Disorder Act 1998, and has the power to put other evidence before a court in support of such an application whether or not evidence would have been admissible in a proceedings in which the defendant was convicted.
The amendments would therefore amend Section 5 of the 1997 Act so as to mirror the wording of Section 1C of the Crime and Disorder Act 1998 as amended by Section 86 of the Anti-social Behaviour Act 2003 and are designed to ensure consistency between the law and procedures relating to anti-social behaviour orders on conviction and restraining orders on conviction.
The drafting of the other amendment is based on Section 86(6) of the Anti-social Behaviour Act 2003 with amendments to take account of the provisions of Section 5 of the Protection from Harassment Act 1997 and Section 104 of the Sexual Offences Act 2003. The question that has been posed is whether the Government agree that if this is not done, defence lawyers could legitimately be able to object to the CPS applying for restraining orders and would be able to point out that the CPS has not been given the power to make such applications while it has been given the power to apply for anti-social behaviour orders in conviction cases.
The concern is that the potential clearly exists for confusion and legal challenge. The argument is that these concerns could be avoided by incorporating into Section 5 the same wording as is used in Section 1C. The amendments I have tabled propose to do that.
It would then not matter whether the CPS was applying for an anti-social behaviour order on conviction or for a restraining order on conviction. The CPS's power to make the application and the courts' powers to hear evidence would be the same in both cases. I beg to move.
My Lords, I was hoping to put this point before my noble friend sat down. But now that she has sat down I have to make my only allowed speech on Report.
My noble friend referred to Amendment No. 32 as a probing amendment. If I may say so with deep respect, I think that it is of greater value than that. With it are listed Amendments Nos. 34 and 39, each of which would have in my opinion considerable legal and practical value. I hope that the Government will bear in mind the desirability of considering those three amendments—Nos. 32, 34 and 39—because they are relevant and strengthen Clause 8 of the Bill.
I hope that I am not asking too much if I mention to the noble and learned Lord the Attorney-General that it would be of great value if the Government could consider at Third Reading, if they are not prepared to do so this evening, the effect of those three amendments which really strengthen Clause 8.
My Lords, I deal first with Amendment No. 34. It is not the first amendment to which the noble Baroness, Lady Anelay, referred. Its purpose is to give any court sentencing or otherwise dealing with a defendant for breach of a restraining order the power to revoke the original order and replace it with a new order. I am very grateful to the noble Baroness for raising that point. It certainly is one that needs to be considered further. It will be and we will come back to the House on it.
I turn back to the principal point raised, which is Amendment No. 32. The decision under the Protection from Harassment Act 1997 to impose a restraining order on a person convicted of harassment or putting someone in fear of violence is taken by the court in parallel with the sentencing process.
The fact is that at the moment the prosecution often reminds the court that it can make an order, but does not apply for one. It is said that the procedure works well. Certainly the figures indicate that the courts make restraining orders in more than half the cases where a person is convicted under the 1997 Act.
As Clause 8 of the Bill is drafted, the same procedure would apply to courts sentencing someone convicted of any offence or when dealing with someone on acquittal for any offence. So the procedure would apply, and in the latter case both the prosecution and defence would be able to inform the court's decision by leading additional evidence admissible under the civil evidence rules.
The effect of Amendment No. 32 would be to alter the mechanism for making a restraining order on conviction so that it mirrors the procedures for anti-social behaviour orders following conviction. In those cases Section 86 of the Anti-Social Behaviour Act 2003 enables the Crown Prosecution Service to ask the court to make an order and allows the prosecution and defence to lead additional evidence.
Those changes were made in the 2003 Act because experience showed that there was a need to clarify the role of the Crown Prosecution Service in proceedings and to ensure a more consistent procedure across the country. They were also necessary to avoid the problems that arose when some courts refused to hear applications for orders on conviction made by local authorities on the grounds that they had no standing before the courts. I was involved in the decision to make that change. Plainly, a number of issues and considerations flowed from it, including, as always, the question of what may be the implications for the resources of the Crown Prosecution Service.
It has been believed that those problems were specific to anti-social behaviour orders. As I said, the procedures for restraining orders on conviction work well and therefore I doubt that any change is necessary. Certainly it has been believed that making restraining orders available on conviction for any offence will not pose insurmountable problems. Courts are already familiar with the concept of harassment; they made more than 1,500 restraining orders in 2002 and are unlikely to experience significant difficulty appreciating which cases might call for an order. As I made clear at the outset, the CPS is always able to remind the court of its power to make a restraining order.
The Government's view has been that it is not necessary to make that change. However, having regard to the way in which the noble Baroness has pressed the case and the additional observations made by the noble Lord, Lord Renton, it would be churlish of me to say that there is no scope for looking again at the issue. In saying that, I do not want to hold out any promise at all, other than that, as the Minister responsible for the Crown Prosecution Service, I want to look carefully at what has been said. The noble Baroness has already said that she does not intend to press the amendment today. Therefore, I anticipate that she will be content with what I have said.
Amendment No. 39 is consequential; it is necessary to make Amendments Nos. 32 and 35 work. Giving the Crown Prosecution Service a power to apply for a restraining order would require an amendment to the Prosecution of Offences Act to make applying for such orders a formal part of its remit. The amendment would stand or fall with Amendments Nos. 32 and 35. Therefore, there is no need to deal with it separately. It would also give the CPS a formal role in applying for sexual offences prevention orders under the 2003 Act. Again, however, a corresponding amendment to the 2003 Act would be needed to allow the CPS to apply for such an order. That idea was discussed as part of the work on the then Sexual Offences Bill, but, because there was no evidence of any problems with how it works, and as it was felt that the same effect would be achieved by strengthening guidance to prosecutors, such a provision was deemed unnecessary. As the amendment will not be pressed, I need not say anything further.
My Lords, I am very grateful to the noble and learned Lord for the constructive manner in which he has responded to the amendments. His offer to look again at Amendment No. 34, on the issue of revoking and replacing an order, poses a hopeful way forward. I am grateful for his offer to look again also at Amendment No. 32, although I recognise that perhaps that will be at a lower level and he may not be able to come back on it.
It has been made clear to me that the reason that restraining orders have worked without controversy so far, while the anti-social behaviour orders on conviction encounter some technical difficulties, is that, until now, restraining orders have been made on conviction for only two very precise offences. The proposal to open them up to a much broader range is the reason that the concern was raised with me about the matters that form the basis for the amendments. I am grateful to the noble and learned Lord and look forward to seeing how Amendment No. 34 might blossom in the future. I beg leave to withdraw the amendment.
My Lords, in moving Amendment No. 33 I speak to Amendment No. 36, and my noble friend Lady Thomas of Walliswood will speak to Amendment No. 38B.
My amendments deal with the power for a person to be heard on the making of an order under the Protection from Harassment Act 1997. Clause 8(2) provides that a person may be heard on the variation, termination, or discharge of an order, but not on the actual making of the order. That seems to be something of an anomaly. It may well be that the victim is in court at the time when the court is seeking to exercise its power under the Protection from Harassment Act 1997. When we discussed the matter in Committee, the Minister suggested that prosecuting counsel may have a role in discussing the situation with the victim and in presenting her views to the court. That is not satisfactory. If that person has a right to be heard at later stages involving the order, surely they must have a right to be heard when the order is made in the first place.
The amendment relating to subsection (3) is to insert the words,
"arising out of domestic violence".
One of the problems with this Bill is that the Government have consistently refused to define domestic violence in any satisfactory way. We have tried in a number of ways, and my noble friend Lady Thomas of Walliswood will again seek to put in a variation of what she had previously advanced in Committee. Domestic violence is what this Bill is about. It is curious to have it called Domestic Violence, Crime and Victims Bill, without anyone having a clear idea how far domestic violence extends; who may be parties to domestic violence; who may not be; what type of conduct is regarded as domestic violence and whether it covers psychological harm. All sorts of things come into the proposition.
As subsection (3) is drafted, the court may make an order prohibiting the defendant from doing anything described in the order—absolutely anything—providing they are acquitted of an offence. That could be anything—it could be a driving offence. It does not need to have any connection with the purposes of this Bill at all. That is far too wide. The proper way of proceeding under this Bill is to confine it within the limits of the Bill itself, which is essentially to protect victims of domestic violence. For that reason, we propose this amendment. I beg to move.
My Lords, I rise to speak to Amendment no. 38B. The purpose of this amendment is twofold. First, it amends the Protection from Harassment Act 1997 as amended by this Bill, and makes special provision for the handling of restraining orders in cases where the defendant has been acquitted or convicted of an offence arising out of domestic violence. Secondly, it provides a definition of domestic violence. We are greatly indebted to the Solicitors' Family Law Association, among many others, for its assistance in drafting this amendment. As the noble Lord will know, there is a strong demand outside this House for a definition of domestic violence to be included in this Bill.
Clause 8(3) amends the 1997 Act to ensure that courts may make restraining orders to prevent a defendant from further harassing the victim, not only when the defendant has been convicted, but also when he or she has been acquitted. Our amendment makes further provision for dealing with restraining orders imposed on convicted or acquitted defendants when the offence in question arises out of domestic violence. It proposes that in such cases the order should be temporary; that the further proceedings should be adjourned to the family proceedings court or county court; and that the person or persons for whose benefit the restraining order has been made may then be heard at the adjourned hearing, have the benefit of specialist legal assistance and present any evidence which would be admissible in proceedings under Section 3 of the 1997 Act. Section 3 deals with civil remedies for breach of Section 1 of the Act, which prohibits harassment.
The effect of the amendment is to ensure that the question of whether or not a restraining order should be made would be dealt with by a court properly trained and qualified to consider the implications of any such order on all aspects of family proceedings, and to include any issues over contact with children, any housing issues, and so forth. That is why the hearing should take place either in the family proceedings court before a properly constituted family Bench or in the county court before a district judge trained and qualified to deal with family issues. Of course, the criminal court would still be able to make a temporary order of a short duration until such time as the matter could be fully considered by a family court.
Turning briefly to the definition of domestic violence in subsections (3), (4), (5) and (6) of the amendment, I shall not rehearse the whole argument in favour of such an amendment in the way that I did in Grand Committee. First, I hope that noble Lords agree that the way in which these subsections are written clearly does not describe a crime as such, but rather the particular nature of certain behaviour, which indicates that domestic violence is, as it were, the setting for the crime that has been committed.
Secondly, the phrase at the beginning of subsection (4), which states:
"Domestic violence may include, but is not restricted to", is directed at the anxieties expressed by the Minister and others that any definition will be too restrictive.
Thirdly, the characteristics of domestic violence are more comprehensive than in the previous definition presented in Grand Committee. In particular, subsection (4)(e) of the amendment refers to,
"unwarranted restriction of or interference with access to money", and so forth. That responds to concerns expressed by the noble Baroness, Lady Anelay, in Grand Committee. The aspects of domestic violence described in subsection (4)(d), (e) and (f) of the amendment, taken together, go a long way towards expressing the power play that is so characteristic of a domestic abuser's treatment of his victim.
Finally, the particular aspects of domestic violence listed in subsection (4)(e) and (f) of the amendment are exercised by a person towards the cohabitant, relevant child or associated person such as defined in Section 62 of the Family Law Act 1996—possibly, that should now include the words,
"as amended by this Act"— and may be single or repeated acts. Subsections (5) and (6) repeat our earlier item on the position of defendant and victim where a child has been called or enabled to witness the abuse of the victim. I hope that this amendment will prove more acceptable to the Minister than our previous effort.
My Lords, I welcome the opportunity that has been given to us by the noble Lord, Lord Thomas of Gresford, and the noble Baroness, Lady Thomas of Walliswood, to return to this debate, which, primarily for me, is about the definition of domestic violence. First, I must refer to Amendment No. 33 moved by the noble Lord, Lord Thomas of Gresford. It goes down an avenue where I cannot follow him because it would confine the operation of Clause 5 to a relatively narrow band of offences. That is primarily because I am unsure how, ultimately, it would be workable, but also because I am not following the same line of approach in Clause 1 either. On that basis, I am trying to be as consistent as I can.
With regard to Amendment No. 38B, I am very grateful to the noble Baroness, Lady Thomas, for taking on board some of the questions that I posed in Grand Committee and for taking such care in the way in which she has developed her amendment. I, too, would like to thank the Solicitors' Family Law Association for its careful and helpful briefing. I hope that she will forgive me for saying that I am so pleased to see that she has addressed my point about financial abuse in her amendment. At the same time, however, I have more questions to ask, although I do not want to be difficult.
I refer first to the fact that the case is to be transferred to the family court of the County Court. If that is the case, who will be the parties to the proceedings to ensure that they actually take place? The CPS would be out of the picture by then because the case would no longer be in the criminal court. The CPS would instigate the proceedings in the criminal court, so how would this work? Would an order be made for the alleged victim to bring the proceedings, or would it be another witness in the case? I am not sure how that would be dealt with.
What would be the position regarding funding for legal representation? I think that the answer to that question would be a resounding "yes" from the noble Baroness because we may well be in complete agreement on this matter. However, does she agree that it is important for both the victim and the alleged defendant to have access to properly funded legal advice?
So far as concerns legal advice, I note that subsection (3) states that the,
"person . . . for whose benefit the temporary order has been made shall be entitled to be . . . represented by a family lawyer at the adjourned hearing".
Here I am trying to think of the proper lordly language to use. I am interested to know how that would be defined because I am not clear that, in the professional sense, there is such a thing as a "family lawyer". Perhaps the noble Baroness can explain that further. I wonder how such lawyers would be defined as a class.
I note also that subsection (6) would absolve the alleged victim from all blame with regard to abuse that has been caused to a child. I understand the reasons why the noble Baroness has put this forward. The very fact that I looked at these issues in Clause 4 when I pressed an earlier amendment tonight—I wanted to address the problem of those who are themselves the subject of domestic abuse and how they should be treated within the context of that clause—is relevant. I said earlier that one cannot be absolved entirely from blame because one has suffered from domestic abuse. However, it is something to be taken into account when judging whether one has taken a reasonable course of action. Here the noble Baroness has gone one stage further in seeking completely to absolve them. That is where I find it difficult to follow her.
This amendment makes an admirable attempt to take our debate on the definitions of domestic violence further and I hope that the Government will be able to take up the challenge posed by the noble Baroness on how we shall deal with it.
I think that it is right too that the definition proposed by the noble Baroness should refer to children. The Home Office definition excludes children, which I find intriguing. There may be a good reason for that, but it would be interesting to find out what it is. On the other hand, I notice that the Crown Prosecution Service does include children in its amendment. We have had the benefit of the noble and learned Lord, Lord Goldsmith, for the past hour or so. He has disappeared just as he was about to get a plaudit. I shall not add any subtext to that which could be misconstrued. The plaudit is that the website of the Crown Prosecution Service is remarkably good and clear. So many government websites appear to want everything with bells on, so much so that they collapse and you cannot get to the information. The search engines are dreadful. The Crown Prosecution Service website keeps it simple and is most effective.
Also effective is the CPS definition. It states that the definition it adopts when applying its policy on dealing with cases of domestic violence is:
"Any criminal offence arising out of physical, sexual, psychological, emotional or financial abuse by one person against a current or former partner in a close relationship, or against a current or former family member".
That is an admirable starting point, but it seems odd that the Home Office and the CPS should apply different definitions. I wonder whether the Government propose to resolve that difference.
My Lords, I always have great respect for amendments moved by the noble Lord, Lord Thomas of Gresford, and I warmly support Amendments Nos. 33 and 36. But I am a bit mystified by the need for Amendment No. 38B, which goes very far.
Subsection (4)(b) states that:
"Domestic violence may include, but is not restricted to—
(b) intimidation, harassment or stalking". I have never known human beings go in for stalking each other—they go in for stalking animals; that is a well known activity—but it may be that my ignorance has misled me.
Quite frankly, in my opinion, some of the restraining activities mentioned in Amendment No. 38B go a little far. I very much hope that the noble Baroness, Lady Thomas of Walliswood, although she may wish to modify the amendment and bring it back at Third Reading, will not press it today.
My Lords, I am disappointed but I do not think that I would be in order if I responded to the comments that have been made.
My Lords, as regards the definition, the noble Baroness will know that our position is that it is not something that we would seek to put into the Bill. I have made it clear on other occasions that the Domestic Violence Ministerial Working Group is considering a working definition for all practitioners and others who participate in this field. We are looking for a comprehensive definition which will be acceptable to all. I cannot comment on all the differences but I should inform the noble Baroness that others operate on definitions different from the Home Office and the CPS. It is important that we get a clear definition so that we are all singing from the same hymn sheet.
As I said when we discussed this topic in Committee, the Government's intention when drafting subsection (2) of Clause 8 was to deal with one of the issues raised in responses to the Safety and Justice consultation paper and the need for victims to be kept informed when an application is made to vary or terminate a restraining order that is protecting them. At present, the first the victim may know of the order's variation or termination is when the respondent turns up on the doorstep. The intention of Amendment No. 33, tabled by the noble Lords, Lord Thomas of Gresford and Lord McNally, is to extend the right to be heard when the court first makes a restraining order.
I can understand why the noble Lords suggest that that would be appropriate but the effect would be to overturn the existing procedures under the Protection from Harassment Act 1997, where the court makes its decision in parallel with the sentencing process on the basis of the evidence it has already heard. Not only is the defendant present and legally represented, but the person protected by the order will almost invariably be in court for the proceedings. CPS lawyers see it as their duty as officers of the court to make known the victim's views on a restraining order, and the responses to Safety and Justice revealed no dissatisfaction with these arrangements.
Similar considerations apply in the case of our proposals for restraining orders on acquittal, where both the prosecution and the defence will be able to lead additional evidence, an issue to which we referred earlier in our deliberations. Under those circumstances the Government do not believe that a separate statutory right to be heard is necessary. In addition, it is possible that giving defendants as well as victims a right to be heard on the making of an order will lead to adjournments that may well delay the protection that orders provide.
Finally, the text of the amendment still appears to be missing the "and" that would be necessary to make sense of the revised Section 4A that the amendment proposes.
I turn now to Amendment No. 36. When we last discussed this amendment the noble Lord, Lord Thomas of Gresford, expressed surprise that the proposals for restraining orders on acquittal extend to defendants acquitted of any offence. The Government have always been clear that this is the case. I believe that I said as much at Second Reading. I reassure your Lordships that the Government share the noble Lord's determination to ensure that restraining orders are made only to maximise protection for victims, while in no way undermining the status of acquittal. I would be very alarmed indeed if they were doing any such thing.
It is precisely for that reason that the clause is drafted so that a court can impose restraining orders on acquittal only,
"if it considers it necessary to do so to protect a person from harassment by the defendant".
We believe that this first safeguard fulfils the noble Lord's intention of restricting the availability of restraining orders to a specific category of cases, many of which will be domestic violence cases. I understand the noble Lord's resistance to anything that would depart from that.
So when in Committee the noble Lord, Lord Thomas, suggested that the clause would allow a court to impose a restraining order on someone acquitted of a road traffic offence, he was correct up to a point, but only in cases where the court had heard evidence that pointed to a need to protect a person from harassment. Regrettably, the noble Lord probably knows better than anyone that there are road traffic incidents which end up as road rage incidents. The parties get very exercised with each other, very aggressive, and it may be appropriate, in a given case, for some protective order to be made.
In their response to Safety and Justice, many domestic violence organisations stressed that many offences, including, for example, criminal damage, can be part of a campaign of harassment. Limiting the availability of restraining orders on acquittal in the way suggested by the amendment would create a lottery of protection and might even encourage certain types of harassment on the grounds that an acquittal could not result in a restraining order. It would also deny protection to other categories of victims, such as victims of stalking but not domestic violence. We mentioned this evening the difficulty presented by stalking. The Government do not believe that such victims are any less deserving of protection.
The amendment raises two further difficulties. First, although it would limit the availability of restraining orders on acquittal to cases,
"arising out of domestic violence", it fails to define such cases. I note that Amendment No. 38B includes a definition of domestic violence, and I shall deal with that in the context of that amendment specifically, although I think I have already alluded to what my answer is.
The second difficulty stems from trying to tie restraining orders to the offence of which the defendant has been acquitted—in other words, to the offence that the defendant has been found not to have committed. The Government's proposals are designed to avoid this; they allow the court to draw on the evidence of the defendant's conduct that emerges during the trial. To relate the restraining order to the specific offence of which the defendant had been cleared, as Amendment No. 36 does, would undermine the status of the acquittal.
Amendment No. 38B, tabled by the noble Baroness, Lady Thomas of Walliswood, is similar to several we discussed in Committee which sought to make restraining orders on acquittal temporary in nature and then remit them to the family court for further consideration. The present amendment goes further in that it covers both restraining orders on conviction or acquittal for an offence arising out of domestic violence. It would make such orders temporary and remit them to the family proceedings court or the county court. If I may respectfully say so, the noble Baroness, Lady Anelay, asked some very telling questions in relation to how that would work.
The person for whose benefit the temporary order was made would then be entitled to be heard and represented by a family lawyer and lead any evidence that would be advisable under Section 3 of the Protection from Harassment Act 1997, which provides a civil route for protection against harassment. Of course, there are family lawyers who are members of the Solicitors Family Law Association or the Family Law Bar Association, but given the generic term "family law", it would be rather unfair to restrict access. Others who had become specialist in areas of crime would feel slighted or excluded, and I know that that is not the noble Baroness's intent.
The objections that I set out in Committee remain and are, if anything, stronger now that the amendment includes restraining orders on conviction. My principal objections are that restraining orders made on conviction have always covered a wide range of cases, some involving domestic violence, others not. The orders are made in parallel with the sentencing process following a criminal conviction, and are designed to provide protection from harassment, rather than deal with a range of family law matters. The courts have found no difficulty in operating this scheme. Indeed, the stalking cases came specifically out of stranger harassment, which was not capable of being identified in any other way. I cannot see what extra protection is offered to victims or defendants by treating domestic violence cases differently, as the amendment proposes, and remitting those cases to a family court when the question of protection from harassment has already been dealt with by the criminal court.
Similarly, I cannot see the justification for remitting restraining orders made on acquittal in domestic violence cases to the family court. The restraining order will have been made following evidence heard in the criminal case which leads the court to conclude that it is necessary to make an order to protect the victim from harassment, even though the criminal case ends in an acquittal. That is a matter that the criminal court can properly consider and decide. It does not raise issues that are the unique preserve of the family courts, although many cases may fall within that ambit. Rather, it raises issues of protection from harassment, with which the criminal courts have been dealing successfully since the Protection from Harassment Act 1997.
Amendment No. 38B also includes a definition of domestic violence as a way of filtering out those cases that should be remitted to the family court. We have had several debates on the question of a definition of domestic violence, and the amendment demonstrates many of the problems of a definition. It is relatively easy to find a way of defining the relationship between the parties—by reference to the associated person criteria in the Family Law Act 1996, for example, as the amendment proposes. Much more difficult is defining the violence element. The definition leaves the court to determine when an offence has arisen out of domestic violence and offers no guidance on which offences are included.
Furthermore, there are some elements where it is difficult to see what kind of offence could arise from the circumstances listed—for example, unwarranted interference with personal items or restriction of access to potential sources of support. Overall, the amendments would damage the way in which the 1997 Act currently works, offer no real additional protection for victims of defendants alike, and leave the courts with an unworkable definition of domestic violence. The whole import of what we are trying to do is to allow continuity and protection—protection for future action when the court will have the opportunity to hear all the evidence and take the necessary steps. From the information that we have and from the letters that have been written, it is clear that there are cases in our courts today that would benefit from these provisions. I understand why the noble Baroness and the noble Lord are concerned about this matter, but I hope that I have been able to go some way towards reassuring them that their anxiety is not perhaps entirely well founded.
"the defendant from doing anything".
The defendant has been acquitted, so by definition he is not guilty of that with which he was charged and we can regard him as an innocent person. The court may prohibit him from doing anything in order to protect any person—not a witness or a complainant, but any person—and the offence of which he has been acquitted may relate to anything. It is the widest power imaginable. At the moment, all we are doing is trying to find some way in which this wide power can be put within reasonable bounds. The only qualification, the only way in which it is limited, is that the court must consider it necessary to protect a person from harassment by the defendant. It may not be on evidence that has been produced in that case because there may be evidence at a later stage. It may be for any reason. I shall continue to look at this subsection to see if there is some acceptable way in which we can limit it to a degree.
As for the explanation relating to domestic violence, my noble friend's amendment, I am interested that the Home Office is working on a definition of domestic violence. Is it not possible to use that as a definition, without giving it statutory force? Is it not possible simply to say that in the Bill domestic violence means what the Home Office at some stage says it means, whether by judicial decision or whatever? Can we not use domestic violence in the Bill as shorthand for something that can be flushed out by the Home Office when it has come to its conclusions?
My Lords, perhaps I should explain that we have had the benefit—a real benefit—of having an inter-ministerial group on domestic violence. Many departments that are affected, or that participate in this matter, are able to contribute, for instance, the Office of the Deputy Prime Minister, the Department of Health, the Department for Education and Skills and the Crown Prosecution Service, represented by the Solicitor General. Virtually every department is represented on the working group that is trying to craft a working definition. It will not be the Home Office definition or any department's definition. It will be one working definition that we can share with all the practitioners in the field who are trying to work in partnership. It brings home how difficult it is to nail down a definition, to put it in stone, because it changes as our understanding of domestic violence changes.
I thought it important for the House to know that we understand the necessity for clarity because we are asking practitioners across departments to work together from the same "hymn sheet", so that they understand what they are collectively trying to do. I understand the noble Lord's invitation to share once we have settled on something but, having listened to the debate, I am strongly of the view that it is not appropriate to have even an agreed definition in the Bill because it may very soon become obsolete or need amendment.
My Lords, I am very grateful for that even fuller explanation. It ought to be possible to use a definition like that as shorthand at some stage. Perhaps that is for the future. For the moment, I beg leave to withdraw the amendment.
My Lords, in moving Amendment No. 37, I should explain that for the same reason as I did not move Amendment No. 35, I shall withdraw Amendment No. 38 before the next sitting and I shall not bring Amendments Nos. 32 and 34 back at Third Reading. All of these were primarily based on a particular approach to drafting in relation to other legalisation. I am content to follow the indications given by the noble and learned Lord the Attorney-General that the Government will consider these matters. I accept that there was no undertaking but that it is a possibility that amendments will be introduced, if not in this House at Third Reading, then perhaps in another place. Therefore, before the next sitting, Amendment No. 38 will be withdrawn.
But Amendment No. 37 has a different provenance. It is something to which I referred in Grand Committee. We are still with Clause 8. There has certainly been opposition to the clause's proposals for the power to have a restraining order even where there has been an acquittal, on the basis that it is wrong to impose sanctions on a person who has been cleared of criminal charges. I carefully considered all the representations we received, and I determined that we would be prepared to accept the measures in subsection (3), but with some amendment. I made it clear in Grand Committee that I thought that one such necessary amendment was to make it clear on the face of the Bill that the civil standard of proof is required to be met before a restraining order could be imposed on an acquitted person in the very wide circumstances of this new power, as the noble Lord, Lord Thomas of Gresford, explained in speaking to the previous group of amendments.
When I moved this amendment in Grand Committee the Minister said, at col. 250 of the Official Report, that it is unusual in legislation to define the standard of proof that the court should adopt in making its decision. I have considered further, and I think that it is necessary to make it clear in this case where we are introducing a very broad measure that has courted some controversy.
I was even more convinced of that after the noble Baroness's response in Grand Committee, because she said that there are cases where the court will have to apply a higher version of the civil standard in deciding whether past conduct is proved, depending on the nature and severity of the conduct alleged. The reason why it worried me is that it means that the Government's drafting does not give certainty of application of this new measure. It will be left to the court to decide which standard of the civil proof should be decided from case to case. I had hoped to make clearer on the face of the Bill that the ordinary civil standard should be applied. That is the reason behind my amendment. It would at least introduce the requirement that facts be proved. I beg to move.
My Lords, I warmly support this amendment; I think it is a rather important one. The "balance of probabilities" is not a phrase normally used in criminal law. Here, however, we are dealing with restraining orders on acquittal, and therefore a different concept and burden of proof is necessary. I hope that the noble Baroness, Lady Scotland, will regard the amendment with sympathy.
My Lords, I think that I should make it clear that what I was describing in Committee is the ordinary civil standard of proof, on the balance of probabilities. The amount of evidence that one has to produce to satisfy that balance of probabilities will differ in accordance with the gravity of the assertion that one wishes to establish. So it is the ordinary standard—not a new standard, but the ordinary civil standard.
I will not weary your Lordships by repeating verbatim my remarks on that occasion, but it might be useful if I repeated the main points. Before I do so, I should like to pick up on a point made in Grand Committee by the noble Lord, Lord Thomas of Gresford, that he had misunderstood the scope of the clause. I hope that we have always been clear about the scope of Clause 8.
The Explanatory Notes say that a restraining order may be made on conviction or acquittal for any offence, where the court considers it necessary to do so to protect the victim from harassment. Although this is a Bill dealing with domestic violence, it covers other issues. Clause 8 sits in Part 2, which deals with criminal procedure, not Part 1, which deals with domestic violence. Restraining orders under the Protection from Harassment Act 1997 are civil orders, using the civil standard of proof. The criminal courts are used to making such orders and using the relevant standard of proof. There is, therefore, no need to spell this out on the face of the Bill.
Also, by specifying the standard of proof, the courts would not have the flexibility they need. There are cases where, as I say, even though the court is making a civil order, it might need to apply a higher version of the civil standard in deciding whether past conduct is proved, depending on the nature and severity of the conduct alleged. I am sorry if I in any way disconcerted the noble Baroness or she came away with the view that I was saying that I was departing in any way from that civil standard. The amendment would make the flexibility that is inherent in the civil standard more difficult to achieve. I do not believe that the amendment would clarify the clause.
I hope that I have been able to explain why the noble Baroness need not be anxious about the matter. I hope that for the reasons I have set out she understands why I cannot accept the amendment.
I assure the noble Baroness that she does not disconcert me. In Grand Committee I understood her remarks in a different way from how she intended. However, I certainly understand the explanation that she gave today. As regards the amendment being unnecessary, the noble Baroness will be aware that I accepted the full ramifications of Clause 8 with some discomfort. I made it clear that I thought there ought to be at least some rather modest clarity on the face of the Bill. I was grateful to the noble Baroness for making clear at the briefing meeting before Grand Committee that there would be a requirement for a civil standard of proof in this matter for someone who has been acquitted of a criminal offence. However, in this instance I consider that it is important as a matter of principle to make it clear that clarity is needed. I wish to test the opinion of the House.