| Previous Section | Index | Home Page |
Mr. Andrew F. Bennett (Denton and Reddish): Will the Minister confirm that the tests in civil courts are not nearly as strict as those in the criminal courts? In fact, injunctions can be granted without the person against whom the injunction is being sought being present in court. Is he confident that, under the procedure in the Bill of using a civil injunction and enforcing it through the criminal courts, the rights of the individual to know exactly what is occurring will be protected?
Mr. Streeter: The hon. Gentleman is right to say that, in a criminal court, the test applied is "beyond all reasonable doubt", whereas in the civil courts it is "the balance of probabilities". One of the main reasons for introducing the civil tort is to gain access to that lesser test, so that more victims or potential victims might be protected. I am confident that the courts will always act in a way that protects the civil liberties of those involved in a case.
To return to the sentence that I was halfway through: by contrast, the provisions that the amendment would delete would enable the police to act promptly and decisively on behalf of the victim, to arrest a defendant who breaches an injunction and to investigate the circumstances of that breach and collect the necessary evidence. A defendant who does not breach the court's order has nothing to fear from those provisions, but deleting them substantially diminishes the protection that we want to give to victims.
Amendment No. 25 attempts to do for Scotland what amendment No. 14 would do for England and Wales, but interdict provides good protection for a victim or potential victim. For example, it can prohibit a stalker from taking a specific action, such as writing to the victim. Interdict is a remedy that is well used and familiar both to the courts and to those who need the protection that it can give. As a matter of course, in considering whether to grant interdict or interim interdict, a Scottish court would take fully into account the interests of the victim or potential victim. There is no need to place any further duty on the court, so, like amendment No. 14, amendment No. 25 is unnecessary.
I ask the hon. Member for Rossendale and Darwen (Ms Anderson) to withdraw her amendment.
Ms Janet Anderson (Rossendale and Darwen):
We have had a useful debate, and it is not our intention to delay the Committee, because we are anxious that the Bill should make speedy progress. When discussing these matters, it is important that we pay particular attention to the interests of victims. Nevertheless, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 3, as amended, ordered to stand part of the Bill.
Clause 4 ordered to stand part of the Bill.
18 Dec 1996 : Column 969
Mr. Bennett:
I beg to move amendment No. 7, in page 3, line 17, leave out
The Chairman of Ways and Means (Mr. Michael Morris):
With this, it will be convenient to discuss amendment No. 8, in page 3, line 22, leave out 'or until further order'.
Mr. Bennett:
I have two questions. Amendment No. 7 seeks to leave out the words:
Amendment No. 8 concerns how long the period should be. Are there not considerable advantages in having specific rather than indefinite periods, and would it not be better to define a period, however long, than to allow the order to run indefinitely?
Mr. Maclean:
Amendment No. 7 would limit to victims of an offence defined in clauses 2 or 4 the protection afforded by a restraining order granted by a criminal court. Under the terms of the Bill, a court has the power to make an order to protect not only the victim, but any other person mentioned in the order. The amendment would prevent a court making an order to protect those, other than the victim, whom the court has reasonable grounds for believing that the stalker might attempt to harass. Most obviously, that would exclude from the scope of such an order the family, other co-habitees or close friends of the victim. I believe that we would all agree that that is unacceptable.
We are aware that some stalkers attempt to broaden their campaign of intimidation against a person by also contacting and approaching those whom the victim holds dear. The courts must have the power to protect such people with the restraining order, and, obviously, the courts must be aware that the person who is being protected is concerned and wants that protection.
I shall now discuss amendment No. 8. Clause 5(3) enables a court to make a restraining order for a specified period or until further notice. Allowing the court to make an order until such time as a further order is made is essential for the occasions when a court is not in a position to know, when it makes the order, how long it needs to be in force to have the desired effect.
It is not difficult to envisage such circumstances. If the stalking is extreme, the victim may need to be protected indefinitely. Allowing the courts to make an open-ended order, which clause 5(4) allows, to be discharged on the application of the prosecution, provides maximum flexibility to the courts to make an order for a period tailored to the circumstances of the case, and it prevents unnecessary hassle for the victim in having to return to the courts to have orders renewed--not that there is great expense involved in returning to renew them, but it is an unnecessary hassle, which could be avoided in some cases.
Mr. Bennett:
I beg to ask leave to withdraw the amendment.
18 Dec 1996 : Column 970
Amendment, by leave, withdrawn.
Mr. George Howarth (Knowsley, North):
On a point of order, Mr. Morris. Following last night's debate, certain issues have been left up in the air and we shall hear more when the Bill goes to the House of Lords. In view of that, it would not be sensible to discuss amendment No. 15, so I do not intend to move it.
Clause 5 ordered to stand part of the Bill.
Mrs. Helen Liddell (Monklands, East):
I beg to move amendment No. 27, in page 7, leave out line 10 and insert--
The purpose of the amendment is to create a separate criminal offence in Scotland, although I regret to say that the Secretary of State for Scotland has said that he views it as a wrecking amendment. That is not our intention at all. We view it as an opportunity to correct some of the shortcomings which have become apparent in Scottish law and which will become even more obvious if the Bill receives Royal Assent and is implemented in England and Wales.
The subject matter of the debate has been gone over extensively in recent weeks in the House, when my hon. Friends the Members for Dumbarton (Mr. McFall) and for Glasgow, Maryhill (Mrs. Fyfe) have made broadly similar points in relation to the Crime and Punishment (Scotland) Bill. I agree with what the hon. Member for Christchurch (Mrs. Maddock) said last night about the Government stretching the good will of Members of this House to the very limit. We have co-operated to the best of our ability to get the legislation on the statute book as quickly as possible, so it is regrettable that Scottish Office Ministers did not see fit to consult the Opposition on the aspects of the Bill that relate to Scots law. There are nevertheless a number of alterations that we would want to make to the Bill.
The situation in Scotland will be measurably different from that in England and Wales following enactment of the legislation. I should like to draw attention to the great success of my hon. Friend the Member for Rossendale and Darwen (Ms Anderson), whose persistent efforts have ensured that this legislation is before the Committee
18 Dec 1996 : Column 971
Much has been made of the fact that the Scottish common law breach of the peace offence is supposedly sufficient to cover the crime of stalking or harassment. It is my contention--and that of a number of the victims of stalking--that that law is not in itself sufficient to deal with the problems created by such harassment. There is a tinge of complacency in the attitude of the Government and of some members of the legal profession when it comes to how the law on breach of the peace can operate in Scotland, and to the penalties that can be handed down as a result.
I stress that it is only because the official Opposition have done all in our power to get the Bill through as quickly as possible that we have managed to come thus far in less than 24 hours; it remains a matter of regret that the Bill's provisions will do little to change the law in Scotland. The Law Society of Scotland has written to the Minister responsible for home affairs and health at the Scottish Office, to say that it has considered the measure
Not being a lawyer myself, I have taken advice from, among others, the university of Strathclyde department of law. I was interested in comments by Professor Alan Miller, a visiting professor at the university of Strathclyde and also the chairman of the Scottish Council for Civil Liberties. Professor Miller is of the view that, in so far as the Bill covers harassment, it does not add to existing remedies already available in Scots law, and he makes the important point--I ask the Committee to reflect on it seriously--that the Bill probably would not be used by practitioners, who would continue to seek interdicts.
I hope that the Minister will respond to Professor Miller's further point that, if the law were used, it would certainly have resource implications for a diminishing civil legal aid budget. The nature of the legislation is to seek civil redress for the person who has been subjected to harassment. The dictum from Dicey that justice is open to all, like the Ritz, applies as much in Scotland as it does south of the border. Those who have resources can take court action: those who do not have resources need to apply for legal aid. We already know that there is what could be described as a crisis in civil legal aid in Scotland. It is the view of the Law Society and of Professor Alan Miller that the Bill would not substantially alter the law in Scotland, and the Bill could also lull people into a false sense of security.
We have also to bear it in mind that one important aspect of the legislation, which has been mentioned by right hon. and hon. Members, is its deterrent impact. Many of the people who commit harassment or stalking do not believe that they are doing anything wrong. Some of them are psychologically disordered, but some think that they are doing nothing more than pursuing a vigorous courtship. The distress that they can cause to their victims is considerable and it needs to be made clear to people, by making it a separate offence, that stalking or harassment is an unacceptable form of behaviour. If that were done, it would be of enormous assistance to the police and the
18 Dec 1996 : Column 972
I notice that the Government have drawn attention to the fact that, in Scotland, a specific statutory right to be free of harassment has been created. That right looks nice on paper, but it is the view of the eminent Scottish lawyer Alastair Bonnington, who is a lecturer in criminal procedure, that it is
Scottish Members will be aware of two significant cases that have appeared before the Scottish courts recently. One relates to Ms Louise Durie, who lives in the Ayrshire village of Waterside and was, for nine months, vigorously pursued by her next-door neighbour. She suffered appalling harassment, as did her partner. The harassment was even made worse when charges were made against Mr. Pickering, who was the harasser, and he was released on bail and returned home to pursue his harassment. Louise Durie's experience was recounted extensively in the Scottish press. She came to believe that Scottish law--and, indeed, English law--should be changed immediately to make stalking a specific criminal offence with heavy penalties, in order to deter those who would make others suffer in the way that she had suffered. Ms Durie said that, although she had been through "months of hell", it appeared that the man involved faced only a short gaol term.
Ms Durie drew attention to the need for her tormentor to undergo a course of counselling--which he did not undertake--as a result of his offences. She recognised that he was in need of some psychological assistance. Ms Durie made a very important point in relation to the Secretary of State for Scotland, who she said
Mrs. von Zugbach's ordeal began in 1992 when she rejected an approach from a man she had just met. Shortly after that, in the normal course of such matters, she was bombarded with flowers and threats. It reached the point where she was receiving 100-page letters. She fled to Germany with her husband. While they were in Germany,
18 Dec 1996 : Column 973
Like many Scots, I am proud of the nature of the Scottish legal system. However, there is a danger of making breach of the peace a catch-all offence, which is too diverse and lacking in specifics. Similar arguments were advanced when hon. Members discussed the need to introduce vandalism legislation and, as a consequence, it was declared a separate offence.
'or any other person mentioned in the order'.
"or any other person mentioned in the order".
Will that person have to consent to being included in the order?
'(1) Sections 1 and 2 extend to England and Wales and Scotland
(1A) Sections 3 to 7 extend to England and Wales only'.
"and notes that the Scottish clauses effectively restate, in modern terminology, the existing law which offers protection from harassment by way of assault."
It is important that we look further than the existing law in seeking to protect the victims of harassment in Scotland.
"about as worthwhile as giving a woman a right not to be raped. It is no more than the expression of a pious hope that such conduct will cease."
It is important to give those who are victims of harassment and stalking a clear message that goes beyond a pious hope that such behaviour will end.
"cannot begin to imagine the living hell which victims go through. If he could, then legislation would be through in a flash."
It is often assumed that women are the only victims of stalking and harassment. However, another very important case in Scotland concerns a couple: Professor Reggie von Zugbach and his wife Susanna. They were the victims of a disturbed academic who was jealous of their marriage. In a letter to the von Zugbachs, he wrote:
"God has allowed you to go into this marriage with one purpose . . . namely to break you, because there is no other way."
The perpetrator was arrested in connection with the offences and charged with breach of the peace, but, when a file was returned from the procurator fiscal, it was marked "no further action". As a result of his experiences, Professor von Zugbach--who is an author, a former Army major and a lecturer in management studies at Paisley university--is campaigning for a change in the law governing stalking. If I describe some of the incidents that he suffered, I think that hon. Members will understand why.
"I used to agree that the breach of the peace laws were sufficient to deal with the problem, but now I realise this is not true".
A major problem with breach of the peace law relates to the nature of the sentences passed. In many cases, severe custodial sentences are required not only as a deterrence but in order to stop someone who will not take no for an answer. However, of the breach of the peace cases that have appeared before Scottish courts in recent years, only 6 per cent. led to custodial sentences. Only two cases appeared before the High Court--the most solemn court, where more significant sentences may be handed down. It is unfortunate that those who suffer harassment and stalking cannot take comfort from the knowledge that their perpetrator will receive a severe sentence.
| Next Section
| Index | Home Page |