Clause 8 - Common assault to be an arrestable offence

Domestic Violence, Crime and Victims Bill [Lords] – in a Public Bill Committee at 3:45 pm on 24th June 2004.

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Question proposed, That the clause stand part of the Bill.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

The Constitutional Affairs Minister will see that amendment No.3 would leave out clause 8. I tabled it to alert him that I was going to raise some general issues about the clause. I reassure him that I am not seeking to have the clause deleted. However, one or two matters trouble me, and I would be interested in his views on them.

When I was first doing the job of Conservative criminal justice spokesman, I got the crime statistics for the period from 1942 to the present day, which make depressing reading. For instance, 685 robberies were reported in England and Wales in 1942, and the tally last year was 108,000. One could go on to look at the other figures. One thing that struck me most forcefully was the number of times in 1942—indeed, right through the 1940s; the figures do not change very much—when common assaults were reported to the police. I recollect that in 1942, the grand total was 39. The figure for a short time ago runs to several thousands per annum.

Oddly enough, I suspect that that statistic is slightly misleading. I am satisfied that there were more than 39 assaults in 1942. However, they were not reported, because a common assault, unaccompanied by battery, may be the sign that somebody is suffering at the hands of a violent partner; equally, it may amount to an issue of such utter innocuousness as ought not to trouble the police. Indeed, it is possible to assault

somebody by merely threatening them with violence, without so much as laying a finger on them.

I know the intention behind clause 8: to enable a situation to arise, particularly in the context of domestic violence, in which the police, provided that they are satisfied that there has been a common assault, can arrest a defendant. I am sympathetic to that. None the less, we have to consider what some of the perhaps unintended knock-on consequences of clause 8 might be. First, because common assault without battery would be an arrestable offence, there might be a greater inclination among those who wish to make false allegations to do so, in the knowledge that, although they could not show a reddened cheek or bruised arm, they might nevertheless interfere with someone's liberty, at least for a short period, through an allegation of the utmost frivolity—and being arrested is not a pleasant experience.

I foresee another problem: making common assault without battery an arrestable offence will mean that citizens can arrest other people who commit it. Once it gets abroad that that is one of the consequences that Parliament has brought about, there may well be further examples of people seeking to detain others for an offence that might be thought to be utterly trivial because no battery has taken place. That could cause problems.

I speak with a voice of, slight experience—I was involved in making a citizen's arrest in the not-too-distant past. The police are somewhat ambivalent about ordinary citizens getting involved in the administration of law and order, and although I hope I did not overstep the mark in any way—it was not suggested to me that I had—and the offence committed by the person concerned was undoubtedly arrestable, if somebody is acting in a way that amounts to nothing more than a common assault, I am conscious that it may be undesirable to encourage busybodies or passers-by to seek to arrest them.

I wonder whether the Government took that issue fully into account when deciding to make common assault an arrestable offence. The truth is that it has not been an arrestable offence in the past, and I suspect that there are very good reasons for that. As the Minister knows, if a police officer sees a person committing a breach of the peace they can arrest that person, and a breach of the peace may amount to no more than an assault in any event. I would be grateful to hear the Minister's views on that. Does he think that there is any risk of unintended consequences from what I otherwise understand to be a perfectly laudable aim?

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs) 4:00 pm, 24th June 2004

Let me first add my support to the Solicitor-General's remarks about it being a pleasure to serve under your chairmanship, Mr. Benton. I wish I had watched the ''Ground Force'' programme last night. I will have to see if I can get a transcript from the annals of the House of Commons Library; I am sure that one is held there for posterity.

We are now moving on to part 2 of the Bill, which deals with criminal procedure. As the hon. Member for Beaconsfield (Mr. Grieve) suggested, clause 8 adds common assault to the list of arrestable offences in England, Wales and Northern Ireland. Like him, I asked some questions when I was being briefed about this matter, although I did not search the statistics as far back as he did. I gather that according to the British crime survey common assault accounts for about 61 per cent. of assaults, although it does not account for the same proportion of prosecutions for violent offences.

We have addressed the issue because the police's powers of arrest are complicated, and they can be particularly difficult to apply in cases of domestic violence. However, there is also a wider application that needs to be addressed outwith domestic violence. It might help if I give a bit of background. Currently, the Police and Criminal Evidence Act 1984 gives a police officer general powers to arrest if there is evidence that a common assault has occurred and that the officer has

''reasonable grounds for believing an arrest is necessary to prevent the relevant person . . . causing physical injury to himself or another person.''

In other words, that power of arrest relates to a possible future assault, rather than to the common assault that has taken place. Section 39 of the Criminal Justice Act 1988 makes common assault a summary offence—it can be dealt with in the magistrates court.

It is not unusual for the alleged offender to have left the scene by the time the police have arrived, and the victim may not be visibly injured. Common assault covers a range of actions from threats of violence through striking and battering to unlawful imprisonment. The police might feel that they need to take some action but might not be sure how to proceed. If they do not believe that an arrest is necessary under PACE because although an assault has taken place the alleged offender has left the scene, the police must obtain an arrest warrant in order to proceed with an arrest.

Some have questioned whether the clause is necessary because of existing general powers of arrest. However, those do not always provide a power of arrest in common assault cases. The Government believe that we must get our priorities right. Offences that are currently arrestable include disturbance of wild birds and possession of certain wild animals and plants under the Wildlife and Countryside Act 1981. I am sure that we all agree that it is important that we give police the same powers to help victims of domestic violence or common assault as they have in cases of damage done to wild animals or plants.

In terms of the impact of clause 8 on domestic violence cases, the purpose of the clause is to provide the police with a simple way to ensure that the alleged offender is removed from the scene of the incident and their immediate return prevented where the alleged assailant is not in breach of other orders placed on them under either the Family Law Act 1996 or the Protection from Harassment Act 1997.

Although our focus is on tackling domestic violence, we acknowledge that the clause will have a wider application and be of benefit to police when dealing with situations of public disorder or assaults that have taken place in conditions that would not be considered domestic violence and the police have the same difficulties identifying whether their general powers of arrest apply. The hon. Member for Beaconsfield raised an important point when he expressed concern about frivolous arrests or false allegations being made. It is important to stress that, although we are giving the police additional powers, they will still need to exercise their usual discretion as to whether to arrest someone.

The hon. Gentleman also asked about the ability of citizens to intervene in such circumstances. Perhaps he will elucidate at a later date, as I would be interested to hear the circumstances of the case in which he was involved. I have not read about that incident in any newspapers, but I hope that the action that he took was successful. I am told that citizens will theoretically have power of arrest if someone has committed an offence or is in the act of committing it, although that power is less wide than that of the police. The same applies to all arrestable offences, for example theft, so there is in the clause no change that would alter the role of the citizen in such circumstances. However, I think that it will help in general and make sure that there is clarity about the powers of the police to arrest.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

I apologise for coming to the Committee late. I was dealing with Northern Ireland business in Room 14.

I ask the Minister to focus his attention on Northern Ireland, as we are heading into the parading or marching season. Perhaps the Minister would like to come over and witness it first hand. He would see that tempers get frayed in those circumstances. The potential application of clause 8 is very wide and it might aggravate the situation considerably. Has the Minister consulted the Northern Ireland Human Rights Commission about the implications of the Bill for enhancing community relations? What impact does the Human Rights Commission think that the measure might have on Northern Ireland at a sensitive time?

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

I do not know about the specific organisation that the hon. Lady mentioned, but in a wider human rights context, we considered the clause and signed it as compliant with the Human Rights Act 1998. The Joint Committee on Human Rights has also considered it. I will inquire whether we liaised with the Northern Ireland Human Rights Commission and write to her to let her know. In any event, it would not necessarily change our view that it is right to clarify and make sure that there is simplicity in police rules.

The police will, of course, be able to use their discretion. The clause simply makes it clear that where an allegation of common assault is made, there is no longer a need for a proven threat of further assault occurring before an arrest can be made. The police have the discretion to make the arrest for an allegation of common assault. That will be widely welcomed,

particularly by those who are alleging such assault and who have maybe been quite confused in the past when the police have expressed doubt about whether they could intervene at the time.

Photo of Sylvia Hermon Sylvia Hermon Shadow Spokesperson (Women), Shadow Spokesperson (Trade and Industry), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Home Affairs)

To assist the Minister, let me point out that the Northern Ireland Human Rights Commission was set up under the Belfast agreement, which was introduced by his Government and was approved in referendums in Northern Ireland and in the Republic of Ireland. The commission is a statutory body that has a high status in Northern Ireland. It is charged with examining the adequacy of the law and ensuring that it is compatible with our human rights obligations, particularly given the sensitive circumstances in Northern Ireland. I urge the Minister to act post-haste after this Committee or at least when he next has the opportunity. The Northern Ireland Human Rights Commission is a substantive body and it should have been consulted on this legislation.

Photo of Chris Leslie Chris Leslie Parliamentary Under-Secretary (Department for Constitutional Affairs)

It may well have been consulted but I do not have the full list of consultees to hand. Although I am sure that we do not consult every human rights body on every potential change of legislation, if it has been deemed relevant by Northern Ireland Office colleagues or relevant, I am sure that the commission would have the opportunity to consult or to speak to colleagues in such organisations. I will write to the hon. Lady and I think that that is the best suggestion that I can make.

That aside, there seems to be consensus about the value of the clause and I hope that it can stand part of the Bill.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I am grateful to the Minister for his comments. As I said at the outset, I understood the purpose behind the measure.

I hope that the Minister will think about the law of unintended consequences, because we live in a rights-based society and we know that the police are deluged with allegations of a trivial nature. That is one of the reasons why they have great difficulty performing some of their central law enforcement functions. I cannot help thinking that this measure may contribute towards that.

Leaving aside the fantasy world that we may move into—for example, cases of pupils arresting their teachers who have grabbed them by the arm when they have been misbehaving—the mind starts to boggle when one considers the number of occasions in the course of day when someone might make an allegation that they have been assaulted by another person. The reason why the offence that we are discussing was never an arrestable one was precisely because of that. The Government, by making it an arrestable offence, may well open the floodgates, but then again it may well be that 99 per cent. of the population will never discover what Parliament has done in this clause and the Government will be able to breathe a sigh of relief.

Question put and agreed to.

Clause 8 ordered to stand part of the Bill.

Clause 9 ordered to stand part of the Bill.

Further consideration adjourned.—[Mr. Heppell]

Adjourned accordingly at thirteen minutes past Four o'clock till Tuesday 29 June at ten minutes past Nine o'clock.