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Lord McIntosh of Haringey: The noble Lord will know that I paid great attention to his serious and lengthy speech at Second Reading. In so far as a non-lawyer could follow the argument, I was impressed enough to withdraw my agreement that the Committee stage should take place in the Moses Room in order that we could have the debate that we now have. I would not wish for the noble Lord's amendments not to be considered seriously and, if necessary, at length.

We saw the amendments for the first time on Thursday. I have been able to take some advice on them. The conclusion I have reached is that they do not meet the needs of the Bill; and they certainly would not meet the needs of the case to which the noble Lord referred in closing--the case in Hastings of Billie-Jo Jenkins.

As Members of the Committee may know, last summer I was involved in a marginal way in the development of the thinking on legislation against stalking when I introduced Janet Anderson's Bill in this House as the Stalking (No 2) Bill and, after discussion with and on the advice of the Lord Chancellor, amended it to follow that part of the Family Law Act which was in turn derived from the Family Homes and Domestic Violence Bill. I took the view that the most important point was to establish the civil law position with an offence of breaching an injunction under civil law. But one had to recognise that that did not deal with the problem of the unidentified stalker. For that reason, I follow the logic in this Bill that in addition to the civil law procedures one has to have a more direct criminal route to deal with unidentified stalkers. In that sense I have followed the logic underlying the Bill, having known its ancestry and having understood why various alternative routes were not practicable.

However, the noble Lord, Lord Thomas of Gresford, now proposes a totally different route. He proposes a route which relies on the potential victim, the alleged victim--we cannot say "the victim" without pre-judging the issue--to take all the steps which appear to be necessary to deal with the stalking that is causing harassment. I do not think that the noble Lord would deny that the amendments produce a completely new Bill which applies to England and Wales. Another new Bill would have to be written for Scotland if the amendments were agreed to. If one follows the logic of the noble Lord's Bill, the victim would have to make repeated court appearances. First, the victim would have to seek the additional identification order and, if required, a summons for harassment order application.

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Then, if the person to whom the order relates applies to discharge the identification order and to have the photograph destroyed, the victim (I call him or her that for the sake of simplicity) would have to take responsibility for opposing the application. Then he or she would have to appear on the hearing of a summons for a harassment order, then on a subsequent hearing of any application which the defendant might make to discharge the harassment order, and on the subsequent occasion or occasions when the defendant is alleged to have committed any defence under the harassment order. That is an extraordinarily long drawn out and repetitive procedure in which the victim has to take the initiative on all occasions. Even if that were not the case there is still no immediate sanction for the serious, urgent case.

Let us consider the case of Billie-Jo Jenkins to which the noble Lord referred. We now learn from the evening papers that it is likely that she was stalked for some period of time. In order to stop that, and to stop the stalking reaching the extent of murder, as it did tragically over the weekend, Billie-Jo Jenkins and/or her family would have had to go to the courts, first, for an identification order because they did not know and do not know who the person is. Then the police would have pursued that person and demanded that he be arrested and taken to the police station to have his photograph taken. Then there would have to be a further application for a hearing of the summons for the harassment order. By that time Billie-Jo Jenkins is dead. I cannot see that the noble Lord's procedures deal with the urgent need.

The procedure which the noble Lord proposes in the amendments involves repeated use of court time, repeated and unnecessary use of police time, copious record keeping and repeated legal costs. With the best will in the world, I do not believe that that is a route on which the Committee should embark.

Baroness Elles: Perhaps I may respond briefly to the opening statement by the noble Lord, Lord Thomas of Gresford. One specific aspect is of concern to me. In the amendment, subsection (2) of the new clause states:

    "The justice may, after hearing the evidence of the complainant, make an identification order".

But that must assume that the complainant knew the identity of the person who had been stalking him or her. I do not see how that can work in practice. If the identity is not known, clearly a justice cannot make an identification order which requires a constable to take a photograph of some particular person. From a practical point of view, I simply do not understand how this proposal would work.

7 p.m.

Earl Russell: As the Committee will know, I have tabled a number of amendments which must fall if these amendments are accepted. I should never be more delighted to see amendments of mine fall than in this case.

I shall not rehearse the concerns I had about the original draft. It would mean repeating my Second Reading speech, and I shall not detain the Committee

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with that. But it seems to me that my noble friend, with great elegance, has solved all those difficulties. He has dealt with the problem of defining the offence; the offence is now simply a breach of the harassment order. He has dealt with the risk which existed under the original Bill of convicting an innocent person. Should the harassment order be used against somebody who was not a suitable target for it, it is no skin off one's nose to be restrained from doing what one did not want to do anyway. Also, there is the vital point that the order will not in any way count as a criminal record.

I exercised my mind very greatly before Second Reading to try to find a way in which, in dealing with conduct that is not otherwise unlawful, we could sort the innocent sheep from the guilty goats. My noble friend has found that way. He has made them self-selecting. I see very little risk under the amendment of any conviction of the innocent. That is vitally important.

The noble Baroness, Lady Elles, raises a serious difficulty. However, it must be a serious difficulty in the way of proceeding by any route against this conduct. There must always be a problem in identifying a person until you can point at him or her. I imagine that the only way in which that could be done--as must be true under the existing Bill quite as much as under my noble friend's procedure--is that a constable would have to be around with a camera and take a photograph when the person appeared. The victim--or as the noble Lord, Lord McIntosh of Haringey, said, the "alleged" victim--indicates that is the person who is concerning him or her. I do not see how else it could be done. However, I do not see that the difficulty is any worse under my noble friend's procedure than it was under the existing Bill, because the person must be identified whatever procedure is used.

The noble Lord, Lord McIntosh of Haringey, mentioned the Billie-Jo Jenkins case. There, the procedure of the identification order would have been absolutely right. It could well have saved life. She appeared to have been aware for quite some time that someone was following her and could have got a constable or somebody at the school to identify him. It has even been suggested, although I do not put too much weight on suggestions in the press, that such a photograph might have led to the identification of the criminal in several other crimes. So an identification order in this case might have done a great deal.

I take the point made by the noble Lord, Lord McIntosh of Haringey, about the need for the victim to make an appearance. But after all, if the offence is being defined--as under my noble friend's amendment it is, and as I believe it should be--in terms of distress caused to the victim, only the victim (or alleged victim) can say that that distress has been experienced. It is a necessary part of the procedure. I do not see how you can get out of it.

In these cases, and very much more so in rape cases, it is a gross hardship to the victim to have to go through the procedure that is necessary for justice to be done. The problem is that, in justice, one must have regard to the interests of both parties. I do not see how that

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hardship can be avoided if we are to try to get the matter right. It is a regrettable feature of a serious attempt to get at the truth. All good things have some sad part admixed with them. That that is true of my noble friend's amendment simply means that it is in the real world and is grappling with real problems. I very much hope that the Committee will see fit to agree to it.

The Lord Chancellor: My Lords, there is no doubt that the problem with which the Bill deals is a real problem. That is accepted on all sides. Indeed, references made this evening suggest as much. It is also an urgent problem. There is evidence that these are matters that do take place and this House and another place have a responsibility to deal with them. The Bill presently before your Lordships has been developed from the practice in relation to domestic violence cases whereby an order may be tailored to the precise circumstances of the case and then criminal penalties follow.

The difficulty about that approach is the fundamental one that it may not be known who the offending person is. A great number of different techniques are used in stalking; in many of them the identity of the person doing the stalking is not disclosed.

The noble Lord, Lord Thomas of Gresford, was kind enough to discuss his scheme with me before he invented the order in the first amendment proposed. I noted him as saying in his introduction to the amendment that a constable would approach the person once an identification order was made and say: "A complaint has been made against you. Come along to the police station so that I may have the right to photograph you so that matters can continue". The noble Lord pointed to the fact that that can happen in relation to the breathalyser. A person may not have committed an offence, but, if he declines to take a breathalyser test, he commits an offence in respect of which he may be arrested. It applies also to the football hooligan where there is a suspicion that he committed a crime.

The point is that the complainer in most of these cases will not be able to say who the subject of the complaint is. So there is no question of a constable being able to say, "A complaint has been made against you". The precise point is that he does not know. I have concluded that the only reason criminal procedures are required is in order that that matter should be overcome, because a constable does have power to arrest somebody in respect of a reasonable suspicion that he or she has committed an arrestable offence.

It is fundamental that we get this matter right. So far as I can see, the new clause in Amendment No. 1 does not attempt to deal with it at all. I cannot understand how it is supposed to work in practice. I entirely share the difficulty expressed by my noble friend Lady Elles in that respect. The amendment treats the order made by a magistrate on first application as if, miraculously, it had the effect of identifying the person whom the complainer cannot identify. Where does that sudden light come from to identify the person in question? It does not give the policeman any power of investigation or anything of that sort. The policeman is merely supposed to arrest the person who is the subject of the

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order, unidentified, and then bring him or her to a police station to be photographed. That is the fundamental point; the amendment simply does not work.

The noble Lord had some criticisms of the Bill. I do not know whether I need to deal with them in any great detail. For example, he said that there is no defence to the criminal charge in respect of a breach of the injunction. So far as I can see, in his criminal offence there is no defence to a breach of the order that the magistrate has made.

The second point in that regard is that the magistrate's order would need to have some sort of jurisdiction. The nature of that jurisdiction is completely undefined. That is one of the problems that exists in relation to the present power to bind over, one of the reasons why the Law Commission suggested in their report that it should be abandoned and why it is under attack in Strasbourg. If a person refuses to be bound over, he or she is subject to penalty; if there is no definition of what it is that a person is bound over to do, there is a serious erosion of civil rights. The proposal is imaginative but I believe that it is not one that would work effectively.

The noble Lord seeks to keep all harassment proceedings in one court but at the expense of having damages claims in the magistrates' court, whereas almost universally in consultation it was thought that that matter should not be in the magistrates' court.

The reason why the Government's Bill contains parallel jurisdictions is that it is built on existing practice but deals with the point that a victim would not necessarily know the source of the course of conduct in question. The idea that just cause is itself sufficient without further definition to avoid legal argument would, I believe, be belied by the noble Lord's experience. I do not believe that that phrase is any more immune from the ingenuity of our colleagues in the legal profession than is the phrase that we have used in the present Bill.

There are no specific defences in the noble Lord's proposals for the good reason that there is no specific basis on which the order can be made. That is the inherently unjust and difficult foundation on which his proposals rest.

Those concerned with the matter of stalking point out that harassment can occur without the victim ever seeing the person carrying out the behaviour and having no opportunity to see the person. Sometimes the person eventually discloses himself or herself but it may go on for some time without that happening. I can, if necessary, give a number of examples of that but it may be that your Lordships would prefer to accept it without my doing so.

If the noble Lord's proposals were proceeded with, the police would require to be given powers which they do not have at present in order to deal with this, powers which rest on either evidence of, or reasonable suspicion of, the commission of a criminal offence. Here the police are invoked for the purpose of giving help to one party in what is essentially a civil dispute. It is the fundamental point that I have made which is my main difficulty with what the noble Lord is proposing, subject

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to the point that it is highly doubtful whether the bind-over provisions on which his submissions are founded will survive. It is difficult to say, but they are under substantial attack at present and the Law Commission took the view that they should be taken out of our law.

That is as much as I can offer your Lordships at the moment except to say that this is a completely new scheme. We consulted on a scheme. It would have been a little easier for me to ascertain the practical outworking of the proposals if I had had an opportunity, for example, to consult with the police authorities and similar bodies about how this proposal might work. If we are to reach a solution to the problem now, I believe that the proposals outlined in the Bill are the way forward--without prejudice, of course, to consideration of other amendments put forward by noble Lords.

I would invite the noble Lord, in the light of what I have said, to reconsider his proposals.

7.15 p.m.

Lord Thomas of Gresford: Perhaps I may deal with some of the points that have been raised; first with those raised by the noble Lord, Lord McIntosh of Haringey.

There is no difference between the number of attendances required by a complainant under my proposals and under the proposals contained in the Bill. In the Bill as drafted it is necessary for a victim to make a complaint. The complaint would be made to the police because the complainant, the victim, would be saying to the police that a criminal offence of harassment had been committed and she would therefore attend at a police station to outline her case. Under my proposals the only difference is that she attends before a justice--not that she is faced by the stalker for an identification order to be made but that she attends personally and explains to the justice what it is that is concerning her. If there were then to be criminal proceedings under Clause 2 of the Bill, she would presumably be the main witness for the prosecution and would therefore inevitably be drawn into those criminal proceedings.

If she were to pursue an injunction as a civil remedy, the civil proceedings would have to be served upon the person who was causing the problem and under the Bill there would then be an attendance before a judge for an injunction to be granted. If the offence was committed under Clause 3(4), the offender having committed the offence of breaching the injunction, the lady would be back in court to prove that.

The position is similar with Clauses 4 and 5. Clause 5, which deals with the restraining order made after the first set of proceedings, envisages a further offence and a further attendance of the victim before the court.

I very much regret the fact that people have to go to court to give evidence in sensitive cases which may cause them a great deal of distress. My point is that no more attendances are required before a court in the presence of a stalker under the clauses which I have drafted than under the clauses set out in the Bill.

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