Joint Committee On Human Rights Third Report


2 The Domestic Violence, Crime and Victims Bill

Date introduced to the House of Commons

Date introduced to the House of Lords

Current Bill Number

Previous Reports

1 December 2003

House of Commons 6

None

Background

2.1 The Domestic Violence, Crime and Victims Bill is a Government Bill, introduced to the House of Lords on 1 December 2003. The Minister of State at the Home Office, Baroness Scotland of Asthal, has made a statement under section 19(1)(a) of the Human Rights Act 1998 that the Bill is in her opinion compatible with Convention rights. Explanatory Notes to the Bill have been published.[24] They deal with the Government's view as to the effect of the Bill on Convention rights at paragraph 100, merely noting that the Minister had made a section 19(1)(a) statement. The proposals contained in the Bill follow a number of reports (including two by the Law Commission), consultation papers and White Papers.

2.2 Here, we draw attention to a number of human rights implications of the Bill which we have raised with the Government in a letter from our Chair to the Home Secretary. A copy of the letter is appended to the Report. We expect to report further in due course on the matters which we have raised.

The scheme of the Bill

2.3 The Bill is divided into four Parts, dealing respectively with domestic violence (including offences and evidence relating to non-accidental death within families), criminal procedure (including trial on indictment without juries), treatment of victims of crime, and the usual supplementary matters of amendments, repeals, commencement, extent, short title, etc. We concentrate on the substantive provisions in Parts 1 to 3.

2.4 The main provisions are as follows.

Non-molestation orders

2.5 Clause 1 would insert a new section 42A in the Family Law Act 1996 making it an offence to breach a non-molestation order made under section 45 of that Act.[25] Clause 2 would amend section 62(1)(a) of the 1996 Act to include same-sex couples within the category of "cohabitants" who are entitled to the protection, and subject to the obligations, of that part of the Act. Clause 3 would amend section 62(3) of the 1996 Act to include people who have or have had an intimate relationship with each other of significant duration among the "associated persons" who may be entitled to the protection, and subject to the obligations, of that part of the Act. In our view, these provisions are entirely consistent with Convention rights, and would help to ensure that the protection of the 1996 Act extends to all those who have a family relationship within the meaning of ECHR Article 8 in a manner compatible with the right under ECHR Article 14 to be free of discrimination in the enjoyment of Convention rights.[26]

Harassment: restraining orders

2.6 Clause 8 would amend section 5 of the Protection from Harassment Act 1997 to allow a court to make a restraining order (preventing a person from doing anything described in the order) where a defendant is convicted of any offence, and to entitle anyone named in the order (including anyone intended to be protected by it) to be heard on an application to vary or discharge the order. It would also insert a new section 5A in the 1997 Act to allow a court to make a restraining order when a defendant is acquitted of any offence, if the court considers it necessary to do so to protect a person from harassment by the defendant.[27] These provisions engage the right of the defendant to respect for private life under ECHR Article 8.1, but also serve to protect the Article 8.1 rights of potential victims of harassment. The court would be bound by its obligation under section 6(1) of the Human Right Act 1998 to act in a manner compatible with Convention rights, including Article 8 and the right to a fair hearing under Article 6, when deciding whether to make, vary or discharge an order. In our view, the provisions of clause 8 are likely to be justifiable under ECHR Article 8.2 as being in accordance with the law and necessary in a democratic society for the protection of the rights of others, and the procedure is unlikely to violate Article 6 standards.

Causing or allowing the death of a child or vulnerable adult

2.7 Clause 4 of the Bill would create a new offence of being a person who causes the death of a child or vulnerable adult in the same household or failing to take reasonable steps to protect the victim from a significant risk of serious physical harm resulting from the unlawful act of another member of the household.[28] Clause 6 would allow the Secretary of State to institute a "domestic homicide review" in relation to a death of the kind contemplated in clause 4. In our view, clauses 4 and 6 do not give rise to a significant threat of a violation of any Convention right, and may help to protect the right to life under ECHR Article 2 and interpreted by the European Court of Human Rights and English courts.

2.8 Clause 5 would allow a court or jury, trying someone for murder or manslaughter alongside an offence under clause 4, to draw inferences against the defendant in relation to the charge of murder or manslaughter from his or her failure or refusal to answer a question, even if there is no other evidence against the accused which would amount to a case to answer. In our view, the provisions of clause 5 may give rise to a risk of incompatibility with the right to a fair hearing under ECHR Article 6. We have raised this matter with the Government,[29] and we expect to report further on it in due course.

2.9 Clause 5(4) would provide that the offence of failing to protect a child or vulnerable adult against a threat of unlawful action which causes death would be an offence of homicide for the purposes of deciding the mode of trial and sentence of a child or young person for indictable offences.[30] The result would be that a child or young person charged with, or to be sentenced for, an offence contrary to clause 4 would always be tried and sentenced in the Crown Court rather than a youth court. This would not in itself violate the right to a fair hearing under ECHR Article 6[31] or the right "to be treated in a manner consistent with the promotion of the child's sense of dignity and worth" under Article 40.1 of the Convention on the Rights of the Child, as appropriate measures would be in place to ensure that the defendant receives proper protection in view of the special vulnerability of children in the criminal process.

Arrest for assault

2.10 Clause 7 would make common assault[32] an offence for which a person could be arrested on reasonable suspicion without a warrant in England and Wales and Northern Ireland. It would become an arrestable offence within the meaning of the Police and Criminal Evidence Act 1984 and the Police and Criminal Evidence (Northern Ireland) Order 1989. This engages the right to liberty under ECHR Article 5, but in our view does not give rise to a significant risk of violating the Article as long as the person making the arrest acts in accordance with obligations under the Human Rights Act 1998.

2.11 However, we note that a person may be arrested for an arrestable offence within the meaning of the 1984 Act and the 1989 Order by someone who is not a police officer, and who might therefore not be subject to the obligation under section 6(1) of the Human Rights Act 1998 to act in a manner compatible with Convention rights. This could have the effect of limiting the extent to which a person has an effective remedy for a violation of the right to liberty under ECHR Article 5, although the torts of battery and false imprisonment will usually provide an adequate remedy. We draw this to the attention of each House.

Limiting trial by jury

2.12 Clauses 9 to 12 of the Bill deal with the case of a defendant who faces a large number of counts in an indictment.[33] If it is likely to be impracticable to have all the counts tried by a jury, and it is possible to identify sample counts, and it is in the interests of justice to do so, a Crown Court judge would be allowed to order that only the sample counts would be tried by jury, while the other counts would be tried by judge alone. Clause 11(4) and (5) contains protections for the rights of the defence. In our view, these provisions do not engage any Convention right.

Victims

2.13 Part 3 of the Bill would further regulate the treatment of victims in the criminal justice process.[34] The Secretary of State would be required to issue a code of practice as to the services to be offered to victims (clauses 13 to 15). The Parliamentary Commissioner for Administration would be empowered to investigate complaints, made in writing to a Member of Parliament and referred to the Commissioner, that a person has failed to perform a relevant duty under the code of practice (clause 16 and Schedule 1, amending the Parliamentary Commissioner Act 1967). A new office, that of the Commissioner for Victims and Witnesses, would be established to promote the interests of victims and witnesses, to encourage good practice in their treatment, and to keep the code of practice under review, but without power to intervene in individual cases (clauses 17 to 22 and Schedule 2). There would be a Victim's Advisory Panel, to be consulted by the Secretary of State on appropriate matters (clause 24). The Secretary of State would be empowered to make grants to support measures to assist victims, witnesses and other people affected by offences (clause 15).

2.14 In our view, the provisions of Part 3 of the Bill do not in themselves engage Convention rights. However, we draw the attention of each House to the possibility that the terms of the code of practice, when implemented, may have an effect on the ability of a court to ensure that a defendant has a fair hearing in the determination of a criminal charge, as required by ECHR Article 6. We recommend that any such code should be carefully scrutinized to ensure that their implementation would not interfere with the right to a fair hearing under ECHR Article 6.

Disclosure of information

2.15 Clause 23 would allow a person to disclose private information to anyone bound by the proposed code of practice on victims and witnesses, or to a local probation board, or to the Commissioner for Victims and Witnesses, or to an authority within the remit of the Commissioner, for the purpose of—

a)  complying with the code of practice; or

b)  complying with the duties of local probation boards in relation to victims of certain offences; or

c)  helping the Commissioner to carry out his or her functions.

2.16 Clause 23(7) provides that a person who makes the disclosure would not be taken to breach any restriction on the disclosure of information, however imposed. Clause 23(8) then says: "But nothing in this section authorises the making of a disclosure which contravenes the Data Protection Act 1998 (c. 29)".

2.17 In our view, this form of drafting could make it possible for a person to make a disclosure which violates the right to respect for private and family life, the home and correspondence under ECHR Article 8. By allowing any disclosure despite any restriction (however imposed), subject only to the express exception of disclosures which would contravene the Data Protection Act 1998, the combined effect of clause 23(7) and (8) seems to us to be that the Bill limits the duty of public authorities under section 6(1) of the Human Rights Act 1998 to act in a manner compatible with Convention rights.

2.18 We are very concerned about this provision of Clause 23. In the past, the Government has declined to include in Bills provisions expressly making powers of public authorities subject to the duty to act in a manner compatible with Convention rights under section 6 of the Human Rights Act 1998. The Government has in these cases argued that identifying that duty expressly would tend to imply that the duty is not to apply when it is not expressly mentioned. Here, we have the reverse effect: by expressly preserving duties under the Data Protection Act 1998 while excluding all other duties of non-disclosure, clause 23(7) and (8) of the Bill seem to exclude the applicability of duties of non-disclosure arising under the Human Rights Act 1998. We have already expressed our concern in the case of clause 10 of the Asylum and Immigration (Treatment of Claimants, etc.) Bill.##eb##[35] We draw to the attention of each House our deep concern about the provisions of clause 23 of the Domestic Violence, Crime and Victims Bill which could restrict the operation of the Human Rights Act 1998 and set a dangerous precedent.

2.19 On the other hand, with regard to the substantive effect of clause 23 on human rights, we consider that the Data Protection Act 1998 is likely to be able to provide any necessary protection for the right to respect for private life, etc., under ECHR Article 8.1, because—

a)  all recorded personal information is subject to the regime of the Data Protection Act 1998;

b)  unlike the Human Right Act 1998, the Data Protection Act 1998 applies directly to bodies which are not public authorities as well as those which are; and

c)  the exemptions in the Data Protection Act 1998 from compliance with the data protection principles in relation to criminal investigations and prosecutions would probably not apply to the disclosure of information for the incidental purposes covered by clause 23.


24   HL Bill 6-EN Back

25   See the White Paper, Justice for All Cm 5563 (2002), and the Government's consultation paper, Safety and Justice: the Government's Proposals on Domestic Violence Cm 5847, 2003. Back

26   We note that in Lomas v. Parle, The Times, 13 January 2004, CA, the Court of Appeal drew attention to the deficiencies of a divided court system in which the legal treatment of domestic violence is divided between different courts. The Court called for a unified court, with expertise in both civil and family law, to deal with such cases, and suggested that the Domestic Violence, Crime and Victims Bill might be a suitable vehicle for the creation of such a court. In the meantime, the Court laid down mandatory guidelines for court procedures in domestic violence cases involving criminal law, family law and civil law. In particular, the Court gave guidance on the relationship between orders under the Family Law Act 1996 and the Protection from Harassment Act 1997, and between sentences in criminal cases and penalties for breaching orders made under those Acts. Back

27   See Safety and Justice, n. 25 above. Back

28   See Law Commission No. 279, Children: Their Non-accidental Death or Serious Injury (Criminal Trials) (2003), Law Commission No. 282, Children: Their Non-accidental Death or Serious Injury (Criminal Trials) (2003), and NSPCC, Which of you did it? (2003). Back

29   See Appendix 2. Back

30   Magistrates' Courts Act 1980, ss. 24 and 25; Crime and Disorder Act 1998, s. 51A; Powers of Criminal Courts (Sentencing) Act 2000, s. 8. Back

31   See T. and V. v. United Kingdom Apps Nos 24724/94 and 24888/94, judgment of 16 Dec. 1999, Eur. Ct. HR. Back

32   That is words or acts putting a reasonable person in fear of suffering immediate and unlawful physical touching, and physical touching of a person without his or her consent, without any bodily harm. Back

33   See Law Commission, Law Com No. 277, The Effective Prosecution of Multiple Offending (2002). Back

34   See the Government's 2001 consultation paper on the review of the Victim's Charter; Justice for All (n. 25 above), pp. 48-49; the Government's policy leaflet A Better Deal for Victims and Witnesses presented to the Library of each House in November 2002, and the national strategy for victims and witnesses published on 22 July 2003. Back

35   Paragraphs 27-28. Back


 
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