Clause
161Commencement Amendments
made: 337, in clause 161, page 113, line 17, leave out
‘85’ and insert
‘86’. Amendment
338, in
clause 161, page 113, line 43, at
end insert— ‘( ) paragraphs
59A to 59C of Schedule 19 (and section 156(1) so far as relating to
those
provisions);’. Amendment
339, in
clause 161, page 113, line 44, after
‘16’, insert ‘, 16A,
16B’. Amendment
340, in
clause 161, page 113, line 44, after
‘17’, insert ‘and 17A’.—(Bridget
Prentice.) Clause
161, as amended, ordered to stand part of the
Bill. Clause
162 ordered to stand part of the Bill.
New
Clause
30Anonymity
in investigations: public interest
immunity ‘Nothing in this
Chapter affects the common law rules as to the withholding of
information on the grounds of public interest
immunity.’.—(Bridget
Prentice.) Brought
up, read the First and Second time, and added to the
Bill.
New
Clause
31Transfer
to Parole Board of certain functions under the Criminal Justice Act
1991 ‘(1) Part 2 of the
Criminal Justice Act 1991 (c. 53) (as it continues to apply to persons
sentenced for offences committed before 4th April 2005) is amended as
follows. (2) In section 35
(power to release long-term prisoners), for subsection (1)
substitute— “(1)
After a long-term prisoner has served one-half of his sentence, the
Secretary of State shall, if recommended to do so by the Board, release
him on licence.” (3) In
section 37 (duration and conditions of
licences)— (a) omit
subsection (5), (b) after that
subsection
insert— “(5A) The
Secretary of State shall not include on release, or subsequently
insert, a condition in the licence of a long-term prisoner to whom
section 35(1) applies, or vary or cancel any such condition, except in
accordance with recommendations of the Board.”,
and (c) omit subsection
(6). (4) The reference in
subsection (2) above to section 35(1) and the reference in subsection
(3)(a) above to section 37(5) each includes a reference to that
provision as modified (for certain long-term prisoners) by the Parole
Board (Transfer of Functions) Order 1998 (S.I.
1998/3218).’.—(Maria
Eagle.) Brought
up, read the First and Second time, and added to the
Bill.
New
Clause
1Coroner
for treasure and assistant coroners for
treasure ‘(1) The Lord
Chancellor may appoint a coroner, to be known as the Coroner for
Treasure. (2) The Chief Coroner
may designate one or more assistant coroners to act as Assistant
Coroners for Treasure. (3) The
Lord Chancellor may by regulations make provision in relation to the
Coroner for Treasure and Assistant Coroners for
Treasure.’.—(Mr.
Bellingham.) Brought
up, and read the First
time. Question
put, That the clause be read a Second
time. The
Committee divided: Ayes 6, Noes
9.
Division
No.
10]
Question
accordingly
negatived.
New Clause
34Orders
under the Protection from Harassment Act
1997 ‘A court sentencing or
otherwise dealing with a person (“the defendant”)
convicted or acquitted of an
offence— (a) of grievous
bodily harm contrary to sections 18 or 20 of the Offences Against the
Person Act 1861; (b) of any
offence contrary to section 21 of the Offences Against the Person Act
1861; (c) of any offence
contrary to sections 22, 23, 24 or 25 of the Offences Against the
Person Act 1861; (d) of actual
bodily harm contrary to section 47 of the Offences Against the Person
Act 1861; (e) of common assault
contrary to section 39 of the Criminal Justice Act 1988;
or (f) of a racially or
religiously aggravated offence contrary to section 29 of the Crime and
Disorder Act 1998 may, as well
as sentencing him or dealing with him in any other way, make an order
under sections 5 or 5A, as appropriate, of the Protection from
Harassment Act 1997.’.—(Mr.
Garnier.) Brought
up, and read the First
time.
Mr.
Garnier: I beg to move, That the clause be read a Second
time. The
new clause, which stands in my name and those of my hon. Friends the
Members for North-West Norfolk and for Rugby and Kenilworth, was suggested to me by a number of Crown
court judges who have had cases in front of them where people have been
convicted of offences of violence, particularly against family members
and often against their wives or female partners; but the court is not
permitted under the current law, even where there has been a conviction
of common assault, actual bodily harm or one of the other offences
listed in the new clause, to order that the defendant or the respondent
be subjected to a restraining order under sections 5 or 5A of the
Protection from Harassment Act 1997. They tell me that it would be a
useful addition to their powers to be able not only to deal with a
defendant under the substantive defence, but to issue an order
restraining them from molesting or otherwise interfering with or
harming the victim. That would be a sensible addition to the Crown
court’s
powers. The
new clause
says: “A
court sentencing or otherwise dealing with a person...convicted or
acquitted of an
offence”. That
wording is used because there may often be evidence insufficient to
convict a defendant on the substantive offence of violence but which
none the less persuades the judge that that person ought to be
injuncted from harassing or molesting or otherwise interfering with the
victim. That is why it
says, “convicted
or acquitted of an
offence” under
the relevant statutes. Based on the representations that I have had
from a number of Crown court judges, I urge the Committee to consider
the good sense of new clause 34.
Bridget
Prentice: I am grateful to the hon. and learned Gentleman
for giving us the opportunity to discuss the 1997 Act, but I hope that
I will be able to convince him with a few short comments that the new
clause is now unnecessary. It is unnecessary because once section 12 of
the Domestic Violence, Crime and Victims Act 2004
is commenced, orders under sections 5 and 5A—the restraining
orders—can be made in respect of any offence where a person is
convicted or acquitted. There is no need to list the particular
offences, as is done in the new
clause. The
new clause would also require section 12 of the 2004 Act to have been
brought into force, but until that is so there is no section 5A of the
1997 Act, so no order could be made under that section in relation to a
person acquitted of an offence. Once section 12 is in force the new
clause is not
needed. Coincidentally,
the Home Secretary yesterday launched the consultation paper,
“Together we can end violence against women and girls”,
in which she announced that section 12 will be implemented from
September. On that basis, I ask the hon. Gentleman to ask leave to
withdraw the new
clause.
Mr.
Garnier: I will withdraw it on the basis that the
Government have at last implemented a clause from a 2004 Act. It is
absurd that we have a Government who spew out headlines saying,
“We are protecting women; we are doing this, that and the
other,” but do absolutely nothing about it. It is no wonder that
Crown court judges have been contacting me to say, “Would you
please table a new clause that provides us with powers under the
Protection from Harassment Act, so that we can use them?” I
would accept criticism if section 12 had come into force in 2004, 2005,
2006, 2007 or 2008 and I had failed to spot that. But it is not in
force and it will not be in force until September.
It is
outrageous that women are being left vulnerable in the absence of the
protection orders and the Home Secretary swans around saying,
“Here is another consultation; we will do something about it by
September.” It really is not good enough. I am sorry to end my
formal deliberations on that point. It just illustrates the way in
which the Government approach the making of legislation. It is not good
enough, but I will ask the Committee not to do whatever it does with
new clause 34. I beg to ask leave to withdraw the
motion. Clause,
by leave,
withdrawn.
New
Clause
38Abolition
of rule in Hollington v.
Hewthorn ‘Notwithstanding any
rule of common law to the contrary, a finding of fact in legal
proceedings before any court or tribunal is admissible as evidence of
the existence of that fact in legal proceedings before any other court
or tribunal.’.—(David
Howarth.) Brought
up, and read the First
time.
David
Howarth: I beg to move, That the clause be read a Second
time. The
new clause was suggested to me by Professor John Spencer, and since his
name has been taken in vain so many times in the Committee, although
not quite as many times as that of David Thomas, I thought it only fair
that it be given an
airing. The
rule in Hollington v. Hewthorn is a nuisance that keeps cropping
up from time to time in the courts and it usually has to be dealt with
in a fairly ad hoc way. Hollington v. Hewthorn was a case in
1943 that purportedly
laid down the rule that a finding of fact by a court
in one case was not admissible in evidence, let alone conclusive proof
of the existence of that fact in another case in which either or both
the parties were different. It is rather extraordinary that this rule
came into existence, but it has caused trouble ever since. I should
stress that the rule says that the previous case is not even admissible
as evidence about the fact. It is nothing to do with proving the fact.
It cannot even be mentioned as
evidence. Section
73 of the Police and Criminal Evidence Act 1984 made a major
exception to the rule by creating a rebuttable presumption that the
person convicted of an offence actually committed it. It did not
abolish the rule; it merely made an exception to it in respect of
convictions imposed by UK courts. At that point it seemed that the
Hollington v. Hewthorn rule would survive as regards foreign
convictions. Then a case called Kordasinski came to the Court of Appeal
and the court managed to get round Hollington v. Hewthorn by
claiming that they had been abolished to some extent by section 99 of
the Criminal Justice Act 2003, and so in that particular case evidence
of a foreign conviction was admitted as evidence of the underlying
facts of that case. Kordasinski was a bit of a strained interpretation,
and the Court of Appeal followed that up with another strained
interpretation on the other issue of whether one could use findings of
fact in civil cases in subsequent criminal
proceedings.
9.15
pm In
a case called Hogart in 2007 this issue arose, where the Court of
Appeal again got around Hollington v. Hewthorn by claiming that in that
particular case it was displaced by section 117 of the Criminal Justice
Act 2003, which is about the hearsay rule, and it was able
to say that the evidence was admissible because it came within the
category of a document. The rule is generally reviled, and whenever the
matter comes up in a new context the Court of Appeal tries to get round
it, but the arguments by which it does that are strained and not
logical. They are simply a means to an end.
Many people
think the simplest thing to do is to abolish the rule formally by
statute. The arguments against doing so are, first, that it is not
necessary because the rule has already been abolished, but the trouble
is that it has not been abolished. Parts of it have been abolished, but
parts of it remain, and it is never entirely clear where it might pop
up next to cause yet more trouble. Secondly, one could say that
although it has not been abolished the courts usually manage to get
round it when it comes up; but that is not always so. In Conlon and
Another v. Simms last year that did not happen, and the rule was
said to prevail. When people manage to get round the rule, they do so
only after going to the Court of Appeal, which is time-consuming and
expensive. The best thing is to avoid difficulty in future, and to
accept the new clause saying that the rule is
abolished.
Maria
Eagle: I agree with some of what the hon. Gentleman says,
but I would have to scurry back to the texts to see whether I agree
with all that he says. I certainly agree that Hollington v.
Hewthorn is a Court of Appeal case from 1943, which established a rule
that previous judgments and verdicts are inadmissible as evidence of a
fact on which they are based, at least as far as proceedings involving
different parties are concerned.
As far as
previous convictions are concerned, the rule was abolished for civil
proceedings by section 11 of the Civil Evidence Act 1968 and for
criminal proceedings by sections 74 and 75 of the Police and Criminal
Evidence Act 1984. Clause 124 and schedule 15 of the Bill extend
section 74 of the 1984 Act to allow previous convictions in other
member states to be admitted for this purpose. I am not entirely
convinced that new clause 38 would not cause at least as many problems
as the hon. Gentleman seeks to avoid, because the wording would take
the provision considerably further and allow any court or tribunal to
accept as a fact anything that has been accepted as a fact in any
previous proceedings, whatever they
were.
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