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The Lord Chancellor: Before the noble Lord passes from that point, I think it is fairly plain in Clause 5 of

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the Bill that the restraining order is made as part of the decision consequent on the proceedings. It is a not a separate attendance in order to obtain a restraining order, as I understood the noble Lord to suggest a moment ago.

Lord Thomas of Gresford: I am most grateful to the noble and learned Lord the Lord Chancellor. However, I was not thinking of the making of the restraining order but the offence under Clause 5(5) which deals with the case where the defendant does something which he is prohibited from doing by an order under Clause 5. Further proceedings are envisaged for a breach of the restraining order--not the making of a restraining order--at a subsequent time. My point is that that is one further attendance by the victim in order to say that the restraining order has been breached, similar to the position with the breach of the harassment order which I have suggested in my amendments.

I now move to the very difficult problem of identification. It does not make any difference what procedure is adopted; there will always be a problem in identifying the stalker. The scheme adopted by the Bill is that, if it is not known who the person is, a policeman will arrest a suspect. One way or the other he will find out who is the suspect, presumably by involving the victim. The victim has to provide details of the suspect. I fail to see what difference there is between a complaint to the police of a criminal offence under Clause 2 of the Bill so that the police arrest a suspect and a complaint to a justice whereby the best particulars of the person are provided to the police who effect an arrest or execute an identification order.

I take the point made by my noble friend Lord Russell. If one had an identification order where a stalker had been photographed and forced to give his particulars then in some of the cases one knows about, particularly that to which the noble Lord, Lord McIntosh, referred, there would be a photograph of the suspect on police files before anything worse happened. Further, the making of an identification order, the taking of a photograph and the identification of the individual would instantly put a check on his activities without necessarily turning him into a criminal.

Clause 2 of the Bill creates the offence of harassment, which means that the first step that is taken--at that stage one does not know the identity of the person--is to criminalise the activity. It may be lawful. If it is not lawful he may be arrested for other reasons. He may be standing on a street corner, posting something through a letterbox, sending gifts or making telephone calls. There is nothing illegal about that. But under the Bill that would be turned into an offence and he would be turned into a criminal with a criminal record. I am trying to push back the criminalisation of that conduct by the making of an identification or harassment order and checking that person's activity at an early stage.

I turn to the point made by the noble and learned Lord the Lord Chancellor about the problems in Strasbourg in relation to bind-overs. As I understand the report of the Law Commission and the cases that are going to Strasbourg, the bind-over provisions are unacceptable because the person who is bound over to keep the peace

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or to be of good behaviour does not know what keeping the peace or being of good behaviour entails. The "Strasbourg" problem is that a person is subject to sanctions, which may be criminal sanctions which could send him to prison, although he is simply told that he must be of good behaviour and keep the peace. The distinction between that and what I propose is that a harassment order sets out with particularity what he cannot do. The justice may have a broad complaint from a lady about the way she is being pursued. The justice may look at that complaint and decide that it is too trivial for him to make it the subject of a harassment order, which would be subject to criminal sanctions, but that the lady's second, fourth, fifth and seventh complaints are sufficiently serious for him to make such an order and to say to the offender that he will not do that. That is very different from binding someone over to keep the peace or to be of good behaviour in a broad, generalised way that does not give him any real guidance as to what he should do in the future. The noble and learned Lord the Lord Chancellor is aware that my proposals derive from the historic preventive role of the justice in using the bind-over procedures. But I hope that they develop from that and give the potential offender a guide that tells him exactly what he can do.

The final matter to which I refer is the question of compensation. As my noble friend Lord Meston mentioned to me a moment ago, the tort of harassment is developing. I do not say that it is fully developed but it is developing within the civil courts. In the county court and the High Court damages can be obtained in that way but only by the expenditure of time and money. The noble Lord, Lord McIntosh, was concerned about delay in obtaining remedies. I believe that a magistrates' court that deals with all these matters within the same jurisdiction, and with far greater speed and efficiency than would be obtained within the civil system as it is at present, is the best body to determine the appropriate amount of compensation to award to a person who is the subject of this activity. The alternative is that a lady may give evidence in a magistrates' court under Clause 2 of the Bill and substantiate a criminal offence, but she will not get anything from the magistrates. No compensation will be paid at the end of the day. However, under my proposals she will receive some recompense for her distress and the problems she has suffered.

I will reflect on the various matters that your Lordships have put before me. I hope to return to this matter at a later stage of this Bill. Subject to that, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 2 to 4 not moved.]

Clause 1 [Prohibition of harassment]:

Earl Russell moved Amendment No. 5:


Page 1, leave out lines 8 and 9 and insert--
("(b) which he knows lacks, or has no good cause to believe enjoys, the consent of the other person.").

The noble Earl said: When listening to my noble friend speaking of the difficulty of understanding the meaning of being bound over to keep the peace, I was

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reminded of the bizarre story of a man who bit a piece out of another man's nose and was bound over to keep the peace.

I rise to move Amendment No. 5 with great regret. I hope that we have not heard the last of my noble friend's attempts to amend the Bill. I believe that there is room for a good deal of further discussion on that. It is with regret that I rise to move the forlorn hope. Like my noble friend, I was concerned about the risks involved in criminalising conduct which otherwise, taken piecemeal, might be innocent. That is why I have never been happy about the refusal to define the offence in this Bill. If an offence is not defined how can one prove oneself to be innocent of it?

In moving Amendment No. 5 I should like to speak also to Amendments Nos. 16 to 18 and 28. They are inter-connected amendments and all end at the same point. Amendment No. 5 seeks to replace what I have always found to be the least practical words in the Bill. Clause 1(1)(b) refers to a course of conduct that a person knows or ought to know amounts to harassment of the other. If we do nothing else with this Bill we should get rid of the words "ought to know". They are thoroughly unsatisfactory and have a hortatory quality that is more appropriate to the pulpit than the law.

I have thought a great deal about the problem of defining the offence. To my mind, the essence of the offence is that it is conduct that does not enjoy consent, and that is why it is wrong. The problem with a simple definition in terms of consent is that the offender regularly believes that he enjoys consent when he does not. Amendment No. 5 seeks to prohibit a course of conduct which the person,


    "knows lacks, or has no good cause to believe enjoys, the consent of the other person".

If he thinks that he enjoyed consent, he will have to say so. In many of the cases about which we have heard, it would be a prosecuting counsel's dream to cross-examine the man on why he believed that he enjoyed consent. If he has any good reason for believing it, he can say so.

Amendments Nos. 16 to 18 take the same principles into Clause 4, where there is an immediate fear of violence. I have been worried throughout about the use of the "reasonable man" test in the Bill. It seems to me that in sexual matters in particular, standards of what is "reasonable" vary so incredibly widely these days that they are rather difficult to use. In Clause 4, I attempt to offer a double test:


    "either the conduct was such as to cause a reasonable person to fear violence would be used against him; or ... he wilfully continued the course of conduct knowing the other did not consent to it".

The "or" deals with cases such as that of somebody who had previously been a victim of rape. Such people might well fear in cases where other people might not fear. The mere fact that the person does not consent to the conduct, if that is made sufficiently clear to the offending person, ought in civilised society to be a sufficient reason to desist. I hope that that might be something practical for the courts to attempt.

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Amendment No. 28 adds to the list of lawful statutory defences the argument:


    "that the other consented to the conduct in question".

Again, that defence may be advanced in cases in which it does not belong. But in those cases prosecuting counsel could easily deal with it by cross-examination. It will apply to cases in which there was some good reason to believe that there was consent and where perhaps the charge has been brought as a result of a sudden tiff, as too sadly often happens.

I hope that these amendments might bring some precision to a Bill which I believe needs it, if justice is to be done. I beg to move.

7.30 p.m.

Lord McIntosh of Haringey: As always in these matters, I speak with the utmost diffidence. However, it does not seem to me that the noble Earl's speech relates to his amendment. His speech was concerned with the difficulty of defining the concept or the word "harassment", and yet his amendment leaves the word "harassment" in Clause 1(1)(a) of the Bill and simply adds an alternative phrase for subsection (1)(b).

It is entirely plausible and reasonable--I should not use the word "reasonable" as it is a lawyer's word and has a specific meaning which I probably do not understand--to suggest that lack of consent is or could be a constituent part of harassment. He still leaves the word "harassment" in the Bill and simply adds lack of consent as one consideration in a definition. I had always understood that an extensive definition is difficult because, if something is not in a definition then what is excluded is affected by it. There is a Latin phrase to that effect. But in this case, the noble Earl makes only the first step toward a definition, while leaving the word "harassment" in the Bill. I do not feel that that is an appropriate way to approach the matter.

I was convinced last summer by the noble and learned Lord the Lord Chancellor when he said that molestation--at that time it was the concept of molestation--benefited from not being defined as it was originally in Janet Anderson's Bill because of the risk that genuinely molesting behaviour would be allowed as it was excluded from the list. I fear that the same argument applies even more strongly to the noble Earl's current amendment.


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