Baroness Hamwee:

Moved by Baroness Hamwee

18: Clause 37, page 23, line 28, leave out “without reasonable excuse the person fails” and insert “the court is satisfied beyond reasonable doubt that the person has without reasonable excuse failed”Member’s explanatory statementThis amendment applies the criminal standard of proof to a breach of a domestic abuse protection order.

My Lords, this amendment raises the relationship between the civil order and the criminal conviction that can result from a breach of it. I hope that this debate is as constructive as the last one, because my intention is not to divide the House but to get on record the explanation of how a DAPO—a domestic abuse protection order—and the breach of it will work.

The order may be made if the court is satisfied on the balance of probabilities, which is the civil standard of proof, that an individual has been abusive to someone with whom he or she has a personal connection— I find it difficult to use “they” of the singular. It is also a condition that the order is

“necessary and proportionate to protect that person from domestic abuse, or the risk of domestic abuse”.

The civil court can impose requirements and the Bill gives examples, such as non-contact, not going to specified premises and electronic monitoring. If the subject of the order fails to comply with a requirement, without reasonable excuse, it is an offence of which he or she may be convicted. If found guilty, he or she is liable to a fine or imprisonment up to five years.

We debated protection notices and orders in Committee. The Minister, the noble Lord, Lord Wolfson, in a long and helpful reply, said that he agreed with the aims of our amendments and he summarised them correctly as:

“to ensure procedural fairness so that criminal liability and punishment for breach of a DAPO will occur only where the breach is proved to the criminal standard of proof”.

He also said:

“One of the strongest elements of a DAPO is that it is a civil order, made on the civil standard of proof. That means that if a victim is not able to, or chooses not to, seek remedy through the criminal justice system, they can still access protection from the court.”—[Official Report, 1/2/21; cols. 1950-51.]

I wonder whether the Minister can unpack that “not able”—why not? And “chooses not to”—why would we not require that course to be pursued? I understand, as much as someone who has not been in this situation can, the difficulties facing someone going through everything in a court, which is an issue that we will come to later. It is important to enable a victim to pursue both justice and protection, but it is also important to have regard to the rights of an alleged perpetrator, which is about the standard of proof to be attained.

The Minister wrote after the last stage, and I thank him for that, referring to a question that I asked in Committee about the experience of applying the alternative of contempt of court to punish the breach of an order. The letter did not answer that point, and that may be because it is not known how often that route is taken in the case of comparable civil orders. He said—and this is another aspect of my questions—that choosing not to pursue a breach as a criminal matter allowed victims to obtain protection

“based on their individual circumstances.”

Can he amplify on that? How does it come about? Do the police advise victims on their choice? Is there guidance or a code of practice? Does the CPS get involved at this stage?

The primary reason for the amendment is to ask the Minister to repeat, from the Dispatch Box, the clear statement that he made in his letter about standard of proof. He wrote emphasising

“that a breach will not result in an automatic prosecution. … the breach will need to be reported to the police, who will then investigate and refer to prosecutors for a decision on whether to pursue a prosecution. Criminal sanctions will only be imposed following a conviction for the breach offence in the criminal court, which would need to be proved to the criminal standard in the usual way. By this, I mean that the matter will be dealt with by a criminal court which will automatically apply the criminal standard of proof when deciding whether to convict.”

That was reassuring, but it is better to have it on record in the Official Report. Therefore, I beg to move.

First, I thank the noble Baroness, Lady Hamwee, for such clarity in raising some of my concerns. My enthusiasm for the Domestic Abuse Bill is somewhat muted by the worrying trend from the Government more broadly to use civil protection notices and orders to expand the coercive powers of the state, criminalising a greater range of behaviours without the bother of reaching the burden of proof of criminal law.

To be honest, I was surprised that those who usually speak up on civil liberties in this place seemed rather quiet on this, which is why I was glad to see this amendment. I know that the issue of domestic abuse is emotive and sensitive, and that we all want to do what we can to oppose it, but due process is important too, so I warmly welcome this amendment and thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, for raising it.

It is a crucial amendment, because it aims to ensure that a criminal standard of proof is applied to a breach of a domestic abuse order. That is just not clear as the legislation is written. It seems an important protection for justice and the rule of law. The danger of any hybridisation of civil and criminal instruments is that criminal penalties can be given out without satisfying the criminal burden of proof, which means that someone can effectively be found guilty of a crime and labelled as a proven abuser without a legal test or representation. That feels far too subjective in the Bill, as it stands.

Of course, I understand that breaches of orders must have consequences. They are not just a piece of paper; they are not just there for show. The amendment seeks to clarify how the judgment of a “reasonable excuse” for a breach in the legislation, or that it was “beyond reasonable doubt”, is arrived at. It must be the role of the courts, but it is just not clear.

Dispensing with the criminal burden of proof can have some unintended consequences that are not in the interests of the victim either. Some campaigners fear that the police may choose to use breaches of an order as an easier alternative to proving charges for more serious criminal offences, such as assault or criminal damage. A lower threshold may imply that something has been done by the authorities—as it were, ticking a box—but perhaps more should be done. If the police go about choosing an easier tick-box solution, without the nuisance of gathering evidence that can be tested, that is a bad outcome, so we must ensure that order breaches are not used as an alternative to pursing criminal charges where appropriate.

It is also nerve-racking that some breaches of an order may be relatively minor and very far from criminally threatening to anyone, least of all the person the order is protecting. Some fear that alleged victims may be deterred from reporting breaches if that automatically criminalises their partner or their ex-partner, who might perhaps be the parent of their children.

The worry is that those who the Bill seeks to protect are being sidelined in the process and potentially disempowered. Their agency is potentially undermined by decisions taken by the police or third parties who can use breaches of an order to criminalise alleged perpetrators, regardless of what the victim wants or of however minor the breach. If that were to happen, the main loser would ultimately be due process. I therefore support this amendment wholeheartedly and look forward to the Minister clarifying this or reassuring us that this is not a way of avoiding a criminal burden of proof.

My Lords, I want to go one step back and start with domestic abuse prevention notices. These can be given by a relatively junior police officer, despite what the legislation describes as a “senior police officer”—I was a police inspector at the age of 23—on the basis that he has reasonable grounds to believe that P has been abusive towards another person aged 16 or over to whom P is personally connected and reasonably believes that the notice is necessary to protect the person from abuse by P. If P breaches the notice, P can be arrested and must be held in custody before they can be brought before the court. That is a lot of power invested in a relatively junior and potentially inexperienced police officer, with serious consequences for P. A practical alternative might be to seek the authority of a magistrate, in a similar way that the police might seek a search warrant, which can be done at short notice, on a 24/7 basis. Did the Government consider such an alternative?

As my noble friend Lady Hamwee said, domestic abuse prevention orders can be made by a court on application, and must be applied for if P is already subject to a domestic abuse protection notice. The orders are made on the basis that the court is satisfied on the balance of probabilities, the civil standard of proof, that P has been abusive towards a person aged 16 or over to whom P is personally connected and the order is necessary and proportionate to protect that person from domestic abuse, or the risk of domestic abuse, carried out by P.

The order can be made in the absence of P, and it can impose a range of prohibitions and requirements. If P fails, without reasonable excuse, to comply with the order, he commits a criminal offence and can be imprisoned for up to five years. Normally an accused person is convicted of a criminal offence only if the offence is proved beyond reasonable doubt, and while I accept that a breach of the order might be so proved, the basis upon which the order is given is on the balance of probabilities.

When this House debated knife crime prevention orders, we discussed whether the breach of what is effectively a civil order, granted on the balance of probabilities, should result in a criminal offence, rather than a fine or a term of imprisonment for contempt of court without a criminal conviction being recorded against the perpetrator. In that case, the Government claimed that it was the police who said that a criminal sanction was necessary, rather than a civil penalty, in order for perpetrators to take them seriously. What is the Government’s reason this time?

As we discussed then, Parliament changed a similar regime introduced under the Crime and Disorder Act 1998 and the Anti-social Behaviour Act 2003, whereby breach of the civil order resulted in the criminalisation of many young people with no previous convictions for breach of an anti-social behaviour order or ASBO. Parliament replaced ASBOs with anti-social behaviour injunctions and community protection notices—a purely civil process—by means of the Anti-social Behaviour, Crime and Policing Act 2014.

On the basis of hearsay, potentially a malicious allegation, someone could be given a domestic abuse protection order, breach of which may result in a criminal conviction and a term of imprisonment. Can the Minister please explain why it is necessary for a criminal record to be created when there is a breach of the civil domestic abuse prevention order when it is not necessary in relation to anti-social behaviour injunctions and community protection notices?

My Lords, I am speaking to this amendment on the basis that the noble Baroness, Lady Hamwee, said that she will not be moving it to a vote, and that what she is seeking is, essentially, for the Minister to read into the record the contents of the letter the noble Baroness received, in which the Minister explained the nature of the process when people breach the DAPO.

I thought I would address a couple of the points made by the noble Baroness, Lady Fox, when she opened her contribution, in her typically provocative way, by saying she feared that the state was expanding its coercive powers. In some ways, the situation is more extreme than she or the noble Lord, Lord Paddick, said.

I remind the House that I sit as a magistrate in family and criminal cases; in particular, I sit on domestic abuse-related criminal cases. In domestic abuse criminal cases, if we find a perpetrator not guilty, we still occasionally give them what is now called a restraining order. We do that because although the necessary standard of proof has not been met, the alleged victim is clearly vulnerable, so we put a restraining order in place in any event. In the family court, we use non-molestation orders.

The purpose of the DAPO is to supersede restraining orders and non-molestation orders, but we very frequently put non-molestation orders in place without the alleged perpetrator present. The alleged perpetrator will be told of it and given an opportunity to come to court and argue against the imposition of a non-molestation order, but the reason the process is as I have described is to protect the woman, as it is usually. I understand that the purpose of the DAPN and the DAPO is to supersede the arrangements we have in place.

I understand the points the noble Lord, Lord Paddick, made about the appropriateness of these sorts of orders when compared to ASBOs and community protection notices. They are points he has made before and they are interesting. Nevertheless, as I said in my opening, I see that the purpose of this short debate is for the Minister to put on the record the contents of the letter he has written to the noble Baroness, Lady Hamwee, to make crystal clear the standard of proof that would be necessary to get a conviction for breaching these orders.

My Lords, as I indicated in Committee, I agree with the general aim of the amendment, which is to ensure that criminal liability and punishment for a breach of a DAPO should occur only if the breach is proved to the criminal standard of proof. I heard from the noble Baroness, Lady Hamwee, and a number of other contributors to this short debate that the essential purpose of the amendment is for me to repeat from the Dispatch Box what I set out in a letter. I will aim to do just that.

I therefore make two main points. First, a breach of a DAPO is a criminal offence. As with all criminal offences, this will require the police to investigate the case and refer it to prosecutors, who will decide whether to pursue a prosecution. Secondly, the fact that a breach of a DAPO is a criminal offence means that, as with all criminal offences, the criminal standard of proof will apply automatically when the court is dealing with the case. A criminal conviction cannot be entered, or criminal sanctions imposed, unless and until the criminal standard of proof has been met.

The criminal standard of proof applies, therefore, when we are dealing with a breach of a DAPO. It does not apply when we are dealing with the making a DAPO. When we look at whether a DAPO should be made, the civil standard of proof applies—that is, the balance of probabilities. But in order to impose criminal sanctions for its breach, the criminal standard of proof will apply—that is, beyond reasonable doubt. I hope that has set out the position clearly and unambiguously.

Picking up on the point made by the noble Baroness, Lady Fox of Buckley, “beyond reasonable doubt” is the standard of proof; “without reasonable excuse” is an element of the offence, which would have to be proved to that standard. That is the difference between the two phrases.

We have taken this approach to the DAPO because we want to send a clear message to perpetrators that breach of an order is a serious matter and will be acted on. As I stated in Committee and during my engagement with the noble Baroness and others since, this approach is similar to other civil protective orders that carry criminal liability for breach, such as the non-molestation order, stalking protection order and knife crime prevention order. The approach is therefore consistent with our existing legal framework.

The noble Baroness, Lady Hamwee, asked why some victims may not want to go for criminal sanctions. That might not be their preference for a number of reasons. First, they may be concerned about the possible consequences for their partner or ex-partner and would not want them criminalised for a breach or, indeed, if the point of the question was, “Why isn’t the original order criminal?”

Fundamentally, the proposed orders are intended to be preventive and not punitive. They will enable courts to impose positive requirements which can help to achieve long-term sustainable behaviour change and challenge perpetrators to address their abusive behaviour. For example, the perpetrator might be required to attend a behaviour change programme or an alcohol or substance misuse programme, or undergo a mental health assessment. That may help those victims who wish to maintain a relationship with their partner or family member but want the abuse to stop. It is a strength of the DAPO that it is such a flexible remedy.

The noble Baroness, Lady Hamwee, raised contempt of court. If a victim wanted a breach of an order other than one made in a magistrates’ court to be dealt with as a civil contempt of court, they could make a committal application to the court, including for an arrest warrant, if necessary. In those circumstances, the court has the power to remand the perpetrator on bail or in custody. We would expect that victims’ views would be considered, together with other questions of public interest, when deciding which sanction for breach is appropriate.

On her point about the guidance, the noble Baroness, Lady Hamwee, will recall that in Clause 48 there is a provision for guidance to the police, and in Clause 73 there is provision for guidance to others, including victims.

This is one of the strengths of the DAPO when compared to other existing orders used in these cases, such as the domestic violence protection order. The responses to our consultation highlighted that the absence of a criminal sanction following breach of the DVPO limits the effectiveness of that order. We have therefore ensured that non-compliance with a DAPO is met with the appropriate consequences. In that regard, I reiterate a point I made in Committee: in its report, the Joint Committee did not raise issues with using the civil standard of proof for making a DAPO when examining the draft Bill.

As the noble Lord, Lord Ponsonby, noted, the noble Lord, Lord Paddick, raised on a number of occasions that we are making a move from civil standard to criminal standard when breached. With respect, I have set out the Government’s position in response to that on a number of occasions. We are satisfied that the system we have in the Bill is appropriate. There is nothing in the point, I would respectfully say, that there is something wrong with criminal sanctions on breach for an order made on the balance of probabilities. They are two conceptually distinct questions First, what is the standard for the order to be made? Secondly, what do you have to prove for criminal sanctions when there is a breach of that order?

As for the question on going to the magistrates’ court, one of the strengths of this order is that it can be issued quickly in response to a crisis incident, as with the existing domestic violence protection order. As the noble Lord, Lord Ponsonby of Shulbrede, said, ultimately, we are dealing with the question of protection for victims.

I hope that my explanations on the standard of proof in this short debate, alongside the explanations I provided in Committee and my subsequent discussions with noble Lords, have been helpful. I hope that what I have said today has been clear and unambiguous. I therefore respectfully invite the noble Baroness to withdraw her amendment.

My Lords, I think my noble friend Lord Paddick’s question about the underlying architecture, if that is the right phrase, still stands, but I will not pursue it now. I am grateful to the Minister for all he said about the application of the provisions. I did not make myself as clear as I should have done about what he explained as someone not wanting to go for criminal prosecution. That was not quite my point, which was about inability and due process, which is a term we would do well to keep in mind—due process for both parties.

The Minister has been very clear in his explanation of the standard. I am conscious of how much business the House has to get through today, so I will not prolong this. I beg leave to withdraw the amendment.

Amendment 18 withdrawn.

We now come to the group beginning with Amendment 19. I point out to the House that Amendment 98 should also be considered in this group. It was left out inadvertently.