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The Lord Chancellor: The theory behind the Bill on this aspect is very much in line with what the noble Lord, Lord Thomas of Gresford, was saying in his introduction of his scheme. The first offence, which this

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amendment deals with, is intended to be of a fairly low order so that basically the police powers of investigation and arrest for that purpose are made available. If the case becomes a serious one, then of course one gets to the higher level.

The noble Lord will recall that not only is there Clause 4. There is also Clause 5 and breach of the restraining order. The point is that the conduct will be pretty precisely defined by the restraining order--that is the way in which we approach the matter--and there will then be a heavier penalty on the lines proposed. The purpose of keeping the first offence summary is to restrict the matter to as low a key as possible, subject to the requirement that the criminal law has to be involved but making sure that if conduct is prescribed as being harassment, then a severe penalty will follow and also, as regards Clause 4, where violence is involved.

In the kind of case which the noble Lord, Lord Meston, envisaged, we anticipate a restraining order being made on a Clause 2 offence and then, if that restraining order is breached, the full force of Clause 5 will come into effect, even if there was no violence in the sense of Clause 4.

Lord Meston: I am grateful that the noble and learned Lord prayed in aid the arguments of my noble friend Lord Thomas of Gresford. I am happy that he did so. I am a little concerned about the adequacy of the penalties to deal even with the lower level of offence particularly when concerned with persistent harassment which is not quite serious enough to amount to a Clause 4 offence. While I understand the argument that the criminal court, whether dealing with a Clause 2 or a Clause 4 offence, may make a restraining order for which there are further penalties if a breach occurs, it may well be that there will be cases in which, with hindsight, the courts regret that they were not able to act more robustly at an earlier stage.

This is a matter which is not to be pressed at this stage, but I shall reconsider it. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 2 agreed to.

Clause 3 [Civil remedy]:

The Lord Chancellor moved Amendment No. 11:

Page 2, line 11, leave out subsection (3).

The noble and learned Lord said: I indicated at Second Reading that I would invite the Committee to remove subsection (3), which would add to the powers of the civil court a power to order a defendant to undergo a course of counselling. What we are all seeking to do in the Bill is to provide the best possible protection for the unfortunate victims of harassment. I would be the first to recognise that some of the people who indulge in this sort of behaviour must be disturbed and might well benefit from outside help--guidance, treatment or counselling--just as someone who falsely accuses another person of harassment might well benefit from similar help. The debates we have had will have served a useful purpose in drawing the attention of

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people involved, either personally or as advisers in these situations, to the help which may be available.

But it is not, and cannot be, the role of the civil court which has found against a defendant, on the balance of probabilities, in effect to impose a sentence on him in addition to whatever order for damages and/or injunction the plaintiff is entitled to. There is no justification for it and there is no machinery for it.

For these reasons, which I have already tried to explain, we have found it necessary to tackle this difficult problem by having both a civil remedy and criminal sanctions. The two jurisdictions remain distinct although we have tried to make it possible to stay in one altogether if one is sufficiently satisfied with what can be achieved under it. It would be wrong to start giving civil courts power to impose sentences on unsuccessful civil litigants. As we have seen, I believe that it would soon prove wholly unworkable if we were to try. Amendment No. 15 in the name of the noble Lord, Lord Meston, grouped with this amendment, duly draws attention to the difficulties involved.

It is only fair to the noble Lord, Lord McIntosh of Haringey, that I say that in the discussions we had in the summer, to which he referred when he modified the Bill to be only a civil Bill, the Bill had a clause in it of this character. At the time I did not object to the clause. I had looked over the whole Bill and had not seen any particular reason to object. He is well entitled to say that I should have thought of this objection earlier. However, having considered the matter as carefully as I can and in the light of the fact that we have criminal proceedings in the Bill as well, I hope that the Committee will feel able to accept this amendment and to remove subsection (3) from the clause. I beg to move.

Lord McIntosh of Haringey: I am grateful to the Lord Chancellor for what he has just said and shall not chide him for not having made earlier the observations that he has just made.

As the Committee knows, subsection (3) was inserted on a vote by my right honourable and honourable friends in another place. I do not think that this is an issue of great principle or one which should delay the passage of the Bill. Indeed, in a letter to Jack Straw, the Home Secretary acknowledged that the motives of the Opposition in tabling what was then Amendment No. 13 were,

    "the best possible ... in an attempt to ensure that stalkers who need counselling receive it".

On reflection, I accept that the provision of the criminal offence, in which punishment could be accompanied or replaced by counselling, deals with the major point. I also accept the Home Secretary's point that civil courts could take into account any voluntary undertakings to undergo counselling given by a defendant and that we do not need subsection (3) to achieve that. Although I acknowledge

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that this is a difficult issue, on balance I accept the assurances which the Lord Chancellor has given and I shall not oppose the amendment.

Lord Meston: My reaction was that subsection (3) had some value although it also contained defects in that it was hard to see how it would be operated by the courts. It was for that reason that I endeavoured to draw attention to those defects in Amendment No. 15. However, in view of what has been said by both the noble and learned Lord the Lord Chancellor and the noble Lord, Lord McIntosh, I shall not press Amendment No. 15 or seek to oppose what is now proposed--namely, the deletion of subsection (3).

Baroness Elles: In view of what has been said by the noble Lord, Lord McIntosh, can my noble and learned friend confirm that, where there is a necessity for counselling, the person concerned will be able to have that counselling--obviously, not under subsection (3) which my noble and learned friend proposes to delete, but under some other provision and under the direction of the police or a judge? Where counselling is required, will the person concerned be able to receive the necessary assistance?

The Lord Chancellor: Subsection (3) provided a power to order a person to undergo counselling. As the noble Lord, Lord McIntosh, said, the Home Secretary made it clear in his letter to Jack Straw that it would be open to the courts to take account of any undertaking to undergo counselling which a party to the litigation may give. Where it is a matter of criminal sanction, the general powers of the criminal court would be available. Conditional orders, for example, could involve a person having counselling and would be within the power of the court to impose if that was thought desirable. My noble friend can be assured that the way in which the matter would proceed would allow counselling to take place, where appropriate.

Lord McIntosh of Haringey: I should like to be clear that I understand this. If, in a civil case, the magistrates think that counselling is the appropriate solution to the problem, would they then proceed to make it a criminal case so as to be able to order counselling?

The Lord Chancellor: I would think that unlikely. The practice in such a case, as in domestic violence cases, would be that if the court were satisfied that counselling was the solution it would decline to make the order but would look to the person in question to agree that he or she should undergo counselling. In practice, the court would say, "We shall not make an order if you are willing to undergo counselling". If there was some real difficulty with that, the criminal course is open. In practice, however, I would expect that if the case started as a civil case, and if the advisers of the person in question thought that counselling would help--or if the county court thought that counselling was the way forward--the court could

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indicate that to the person in question with the sort of persuasion that a court can operate in such circumstances.

On Question, amendment agreed to.

8.15 p.m.

Lord Meston moved Amendment No. 12:

Page 2, line 15, at end insert--
("( ) An injunction granted at any stage of proceedings under this section may be expressed so as to refer to harassment in general, to particular acts of harassment, or to both, and may be expressed so as to restrain any harassment whether by the defendant himself or by the defendant instructing or encouraging any other person.").

The noble Lord said: In moving Amendment No. 12, I should like to speak also to Amendments Nos. 13, 14, 23 and 24. I start with Amendments Nos. 12 and 13, which are designed to bring the Bill into line with the drafting of the Family Law Act 1996, which relates to non-molestation orders. The Bill avoids any inclusive definition of "harassment", recognising that it may take many forms. Section 42(6) of the Family Law Act likewise avoids definition and provides that a non-molestation order may be expressed so as to refer to molestation in general or to particular acts of molestation or to both. I suggest that a similar provision would be of use in this Bill so that, as the noble and learned Lord said earlier, the court is clearly aware that it can tailor the order to the requirements of each particular case.

Secondly, the two amendments provide that the injunction or order may be expressed so as to restrain harassment whether by the defendant or by his instructing or encouraging any other person. It imports the wording now commonly used in non-molestation injunctions. It may be that in the county courts, which are already familiar with that jurisdiction, those words would be used anyway. That may not be so automatic in the High Court or the Crown Court where such orders may be made under the provisions of this Bill.

Again, in arguing for the need for such a provision, I am reinforced by the article to which I have already referred in the Sunday Telegraph of 26th January which reported that stalkers are turning to detective agencies and are hiring private eyes to stay one step ahead of their victims' efforts to shake them off. Experts are now describing that as "stalking by proxy".

Amendment No. 13 emphasises that the injunction can be made at any stage of the proceedings and can be made for a specific period or until further order. That adopts Section 42(7) of the Family Law Act and is echoed by Clause 5(3) of this Bill.

Amendment No. 40 provides that in granting an injunction the court can attach a power of arrest in similar terms to Section 47 of the Family Law Act. At Second Reading, I raised, as did other noble Lords, the unusual interrelationship of criminal and civil sanctions for breach and the fear that some victims could fall between two stools, being unable to get legal aid to pursue a quick application for committal for contempt in the civil field and at the same time being unable to

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get assistance for the prosecution of a criminal offence, each responsible authority relying upon the availability of the remedy in the other field. In response to that, the noble and learned Lord pointed out that a breach was an arrestable offence under the Bill. However, the anxiety remains--in my mind, at least--about what will happen in practice. The remaining uncertainty about which alternative remedy should be available to the victim makes how it will work in practice unclear, at least to me.

Amendment No. 14, in following the Family Law Act providing for a power of arrest, should provide some answer to that problem. The power of arrest provisions in the domestic violence injunction field works well and has indeed been extended under the 1996 Act. When there has been a breach of an injunction with a power of arrest attached, surely it must be better that the first port of call is not the criminal court; in many cases it is plainly much better that the person concerned should be brought back quickly before the same court which imposed the injunction, and quite probably before the same judge. The delay in bringing criminal proceedings, or indeed in bringing formal committal proceedings, may be dangerous and is certainly undesirable. That is not to say that the judge, in dealing with the matter on the power of arrest, cannot act flexibly. Indeed, he may have the ability to adjourn it for other proceedings to be brought. The power of arrest procedure is well tried and tested, and I suggest again that it should be imported into this Bill.

Finally, I refer to Amendment No. 24, which seeks to amend Clause 5. The amendment provides that before making any order under Clause 5--that is a restraining order made by the criminal court, including any order to vary or discharge such an order--the court shall so far as practicable be informed by the prosecution as to the wishes, if any, of the victim of the offence and of any other person mentioned or to be mentioned in the order as to the scope and duration of the order. Of course, in criminal proceedings the victim is not directly a party to the proceedings, unlike the civil arena; but the victim may have specific requirements as to the ambit of the proposed restraining order which are not properly appreciated by the court or indeed by the prosecution. When there is an application to vary, the victim may have precise requirements, such as a new residential address to be covered under the ambit of the order. It is surely right that the court is properly informed of such requirements and of such wishes so that, as the noble and learned Lord the Lord Chancellor said, the order can be properly tailored to the needs of the case. I beg to move.

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