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The Committee consisted of the following Members:Alan Sandall,
Committee Clerk † attended
the Committee Public Bill CommitteeTuesday 9 February 2010(Afternoon)[Sir Nicholas Winterton in the Chair]Crime and Security Bill4
pm
The
Chairman: We resume our important debates. We were on
clause 25. The Minister was actually in the process of sitting down
when I had to adjourn the Committee. I was about to call James
Brokenshire and I call him now.
Clause 25Conditions for and
contents of a domestic violence protection
order Question
(this day) again proposed, That the clause stand part of the
Bill.
James
Brokenshire (Hornchurch) (Con): When we broke for
luncheon, we were in the midst of debating a finer point of law in
relation to the McCann case and the standard of proof that would be
needed in connection with the first condition set out in clause 25(2),
which states:
“The
first condition is that the court is satisfied on the balance of
probabilities that P has been violent towards, or has threatened
violence towards, an associated
person.” We
were debating that measure and what it actually
meant. I
think that the Minister of State indicated that he recognised the
McCann judgment, which applied a sliding scale in terms of the balance
of probabilities, such that in certain circumstances, that balance of
probabilities might be close to the criminal standard and burden of
proof that would be applied. Having said that, from the manner in which
he responded, it is possible that his intention is to be closer to the
purest interpretation of the civil standard—on the balance of
probabilities—which would be the normal test, rather than
seeking to apply the standard that was set out in the McCann judgment.
That judgment obviously said that, where serious issues were at hand
and where certain facts had to be proved, that standard should be
interpreted on a much more significant basis.
I hear what
the Minister says and that, in essence, this is a matter for the
court—it certainly is. However, I assume that those engaged in
the pilot will be told that the normal—if I can describe it like
that—civil standard of proof, that is “the balance of
probabilities” standard, applied rather than the “beyond
all reasonable doubt” standard.
As I said,
this will be a question of testing. I think that I have properly
understood the Minister’s intentions and therefore what guidance
will be provided to those involved in the pilot. Obviously, we will
have to wait and see what challenges subsequently come
through.
I also note
what the Minister of State said about children, and I welcome that
comment. When we consider domestic violence, issues relating to
children are very
relevant, as we have said in our debates on earlier clauses. Clearly, we
will need to look very closely at the implementation of clause 25
through the pilot, to see whether it will operate in the way that the
Minister of State suggested.
Question
put and agreed to.
Clause
25 accordingly ordered to stand part of the
Bill.
James
Brokenshire: On a point of order, Sir Nicholas. Have you
received notification of any additional new clauses or new provisions
in the Bill? It is becoming a fairly regular habit during the
consideration of the Bill. I understand, from an e-mail that I received
at lunchtime, that a letter has been sent relating to new provisions
about control orders. I suppose that that is absolutely fine, in the
context of the time that has now been allowed for the Bill. However, it
seems as if this is turning into the festive season, with so many
things being hung off a Christmas tree Bill. I was wondering whether
you had received any further notification or season’s
greetings from Ministers or otherwise, in relation to any
other new provisions that might be added to the
Bill.
The
Chairman: However important that matter might be, it is
not a point of order. I am prepared to use my discretion, in so far as
if the Minister of State wishes to make any comment at this stage to
facilitate the debates in this Committee, I am very happy that he
should do so. However, if he does not wish to do so, we will move on to
our business. [Interruption.] That is my ruling
and if the Opposition Whip is
unhappy— Mr.
Simon Burns (West Chelmsford) (Con): I just thought that
the Minister might want to say something.
Clause 26Breach
of a domestic violence protection
order Question
proposed, That the clause stand part of the
Bill.
James
Brokenshire: We now move on to clause 26, which relates to
the breach of a domestic violence protection order. Obviously, we have
debated previously the sanctions that might apply in relation to a
domestic violence protection notice, and the distinction relating to
that was drawn in the preceding debates this morning. It is obvious
that if the order is breached, there is a clear contempt of court for
the reasons outlined by the Minister, with the relevant sanctions that
might apply.
Again, in that
context, we see the repetition of the language used in the Bill in
clause 26:
“a person
arrested by virtue of section 25(9) for a breach of a DVPO must be held
in custody and brought before a magistrates’ court within the
period of 24 hours beginning with the time of
arrest”. Remand
will therefore be approached. We need to ensure that breaches of the
orders are properly enforced because, as the Minister will appreciate,
in the context of other sorts of orders introduced by the Government,
enforcement of breaches has not been a notable factor. At times,
breaches appear either to result in no sanction at all or they are not
followed through properly. Sadly, there have been some notable examples
of that with other orders, such as anti-social behaviour
orders.
Therefore, in
the context of clause 26, it would be helpful to understand what
guidance the Minister intends to give. Obviously, I appreciate that he
said he would issue guidance alongside the measure to ensure that
breaches are dealt with appropriately. I respect and understand the
desire that is reflected in the Bill to protect the victim of domestic
violence. The suspected perpetrator should be held in custody and I
understand and respect the Minister’s emphasis on ensuring that
the relevant person is protected.
I
ask the Minister to ensure that the 24-hour period stated here is
sufficient. It would appear that, again, we may have a remand hearing
and a substantive hearing thereafter. The court may wish to apply other
conditions where a domestic violence protection order has been
breached. Obviously, the clause states that if someone breaches an
order they have to be arrested and come before the court. If the matter
is not disposed of, that person may be remanded. Does the court have
discretion to impose other conditions or to modify in some sense the
domestic violence protection order following a
breach? Obviously,
the immediate sanction and protection is arrest, but technically the
matter is a contempt of court, which is punishable by a fine or by
being sent to prison. In the context of these sorts of orders, is there
any discretion or is it appropriate that, for example, conditions are
made more restrictive or reviewed? Should things be considered in that
way? Alternatively, is it the case that once the DVPO for the 14 to
28-day period has been granted, with all the relevant restrictions
contained in it, it is simply maintained and followed up according to
its terms, and that the person concerned is punished in the
way I have outlined for contempt of
court? We
come back to the issue of the victim and the support mechanisms that
are in place. From the debate this morning, I am clear that, at that
stage, a caseworker would be engaged—whether an independent
domestic violence adviser or not—so some support mechanism would
be in place. Clearly, if there has been a breach, one would like to
think that additional protection might be offered because, as we know
with domestic violence, there can be further breaches and further
violence. What will be the role of the multi-agency risk assessment
conference in such circumstances? The MARAC is intended to bring
together a number of agencies and organisations to identify victims of
domestic violence. In effect, it combines the police, probation and
social services, the voluntary sector and various other agencies in
local government. Those are the groups that are most likely to be
represented. They will bring together information to help identify high
risk and to allow a co-ordinated
response. As
the Minister said that the MARAC was intended to cover serious cases
rather than something used as a matter of course in cases of domestic
violence. Therefore, one assumes that if a domestic violence protection
order was breached, the MARAC might provide a co-ordinated response.
Other factors may well be relevant to ensure that the needs of the
victim have been properly considered and attended to, putting to one
side the policing issue. There may be other welfare or safety concerns
that require something broader than a law enforcement response. For
example, the health service may be involved—it may be
particularly
relevant. The
Government have pushed forward with MARACs and IDVAs. How does the
Minister intend the structure to operate in respect of breaches? Will a
MARAC be
triggered on the issuance of a DVPN, on the ordering of a DVPO, or on a
breach? Would that be determined on a case-by-case basis, or does the
Minister intend that there should be some kind of protocol in place,
through guidance, to state that where a MARAC exists and a DVPO has
been breached, the intention is that the MARAC becomes involved? It
would be helpful to understand the protocols that he
envisages. As
the Minister knows, in some cases, MARACs meet only every few weeks
because it is difficult to get all the partner agencies together. If
MARACs are intended to be the mechanism, does he expect to issue some
kind of protocol for a more urgent response to deal with an emergency
situation where there is clearly a risk? For example, someone with a
DVPO is arrested and has a court hearing, and the court decides to
release rather than remand in custody. If there is a serious risk of
violence or a serious threat to the associated person, some kind of
mechanism will need to be in place to protect
them. It
would be helpful to understand how clause 26 is intended to operate.
What support services would respond, not simply to deal with the law
enforcement aspect of the order and the breach thereof, but to ensure
that the victim is properly catered for and that serious risks are
properly
addressed? 4.15
pm
The
Minister for Policing, Crime and Counter-Terrorism (Mr.
David Hanson): Let us cut to the chase. The purpose of the
clause is to ensure that a deterrent is in place to stop people
breaking the DVPOs that we discussed earlier today. They will need to
know that if they are the subject of a DVPO and they breach it, they
will be remanded for 24 hours and subject to the court’s meeting
which, if it were Christmas eve, could be two or three days later. They
will be remanded in custody until such time as the court is in
session. When
the court is in session, the penalty that could be given for a breach
of a DVPO is clear—I have set it out on the Floor of the House
and today in Committee. Under section 63 of the Magistrates’
Courts Act 1980, the court may impose a fine of up to £5,000 or
a custodial sentence for a period not exceeding two months. If somebody
who receives such an order knows that if they breach it they will face
serious consequences such as the loss of liberty or serious financial
limitations, that is a strong deterrent. That is important and it is
the nub of the clause.
The hon.
Member for Hornchurch asked whether the court could modify the
conditions of a DVPO following its breach. The court cannot modify the
order following such a breach; that is not necessary, given that we
have a maximum 28-day DVPO. If the court wishes to deal with such
issues, it can in theory impose further orders at a later date, and
continue to intervene in that way. The hon. Gentleman also raised an
important point about support for the victim. The purpose of the Bill
is to protect victims and ensure that perpetrators are brought to
justice and removed from the premises to ensure the protection of the
victim. If a person breaches that order, they will face serious
consequences. If
DVPOs are successful—as I believe they will be, following the
pilot—we want to ensure that caseworkers provide necessary
support for victims of domestic violence to help them take steps to
protect themselves, understand
the risks and come to terms with the challenges that they face. For that
reason, in February 2008, we rolled out multi-agency risk assessment
conferences—MARACs—across the country to protect those
victims who face the highest risk. Furthermore, £7.8 million of
Government money was put behind that roll-out to provide independent
domestic violence advisers to support victims in dealing with the
consequences of the fracturing of their domestic
relationships.
We have more
than 700 domestic violence advisers in place across England and Wales,
and MARACs are in place in 200 local areas. We have helped and
supported 29,000 victims of domestic violence since February 2008, and
as far as I am concerned, that is crucial to ensuring that the whole
system works. It is about giving respite to the victim at a time of
great stress in their lives, by removing the perpetrator and imposing
severe penalties if the perpetrator returns to the home, while at the
same time providing help and support. I hope that that helps to clarify
the objectives for the hon. Gentleman, and that he will support the
clause in its entirety.
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