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The Lord Chancellor: Amendment No. 12 is fashioned on the basis of the Family Law Act provisions. The position is that of course the court has an inherent jurisdiction to grant an injunction as a remedy in an action for tort, and the court may (and frequently does) express its order in terms which will restrain a person from a general course of conduct while at the same time specifying particular examples of acts which he must not carry out. The court does not need a special statutory power, as proposed in the first limb of

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this amendment, to achieve that. I would be reluctant to include any such special provision which did not add to the general powers which already exist, and which was not intended to demonstrate that the powers exercisable in the particular context should be anything less. I do not believe that it is suggested that the existing powers are too wide.

However, the point I make about the Family Law Act is that the background to the equivalent provision in the Family Law Act was somewhat different. The new legislation was replacing an existing, wholly statutory remedy, not the remedy for tort which is here in question, and the Law Commission (whose recommendations were being implemented) had stressed the need to ensure that the dual capability was preserved in the new legislation setting out the statutory power. We were giving the courts a statutory power and if they were to use it in more than one way, then it was right that the statutory power should be expressed in that way; whereas in this case we are giving the court the statutory tort that is created; the court then has the ordinary powers that it would have in respect of such a tort in addition to other powers that are given. So the ordinary flexibility that the court has in relation to injunctions would apply here.

The second limb of the amendment is not, so far as I am aware, based on domestic violence legislation, but draws attention to the possibility that the defendant against whom the injunction is granted may seek to involve some other person who is not a party to the proceedings and cannot therefore be a subject of the injunctive order. This is using others. The defendant may avoid doing the prohibited act personally, but he may get someone else to do it for him. This is an avoidance well recognised and provided against in the very common wording of injunctions whereby a person is restrained from acting not only personally but also "by" his agents. Although the other person would not of course have been named in the court's order, he would nevertheless be in contempt of court if he knew of the order and aided and abetted the defendant in its breach. Of course, the defendant would also be in breach if he did it not personally but by an agent.

The second limb of the amendment could be taken as a confirmation of the court's power to make an order restraining the defendant from acting either personally or by using an agent. But it could be taken as meaning something more, so that the defendant could be expressly restrained from encouraging some other person to join in, regardless of whether that other person was willing to do so. I doubt therefore whether it is necessary for this part of the amendment either, in view of the basis on which this is now put.

I now turn to Amendment No. 13. It may well be that in a particular case of harassment there is some special reason why it appears necessary to restrain the defendant from particular conduct for a specified period only, perhaps until some other anticipated event has occurred. But that is also true of other cases where injunctions are sought, and the powers of the court are sufficiently wide to cater for such situations. Again, the difference with the Family Law Act is that the Act was providing the actual powers. There was no other basis for them, and

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therefore the powers required to be specified. Where we are basing ourselves on an injunction the ordinary powers that the court has for making an injunction would apply.

Turning to Amendment No. 14, we are certainly wholly in sympathy with the reasons of the noble Lord, Lord Meston, for seeking to give the court jurisdiction to attach the power of arrest to injunctions granted in certain circumstances, indeed to raise a presumption in favour of attaching such power in those circumstances. Courts granting injunctions have no inherent jurisdiction to attach a power of arrest, and can therefore only do so when a statutory jurisdiction has been conferred. That is the case in the Family Law Act. But in this situation we have a power of arrest because the breach of an order is itself an offence and therefore it amounts to an arrestable offence by virtue of subsections (4) and (7) of Clause 3 and the provisions of the Police and Criminal Evidence Act 1984. It is therefore not necessary for the court to consider whether the particular plaintiff or charge would be adequately protected without making special provision to ensure that the defendant can be arrested if he is in breach of the order which has been made against him. The statutory provisions here have that effect automatically.

Those are the main matters that the noble Lord has raised, and I hope that in the light of my responses, he may see that what he is proposing is accomplished sufficiently under the Bill.

Lord Meston: Before I respond, I wonder whether the noble and learned Lord has any views on Amendment No. 24.

The Lord Chancellor: I should have mentioned that. I am sorry. The present position, as the noble Lord said, is that the victim in a criminal matter has no locus himself or herself. We have set up some pilot schemes at present in some areas of the country which allow the prosecution to include the views of victims in the case papers for consideration in relation to sentences.

It would be unwise to anticipate the outcome of those or set up a specific provision for this offence only. But when the results of the pilot schemes are available, we can consider them and consider how to make a general provision for victims. Although this case is important, it is not the only one in which victims' views might be important, particularly in relation to the effect on them of the conduct in question, which is the primary matter here. One would not ask for the victims' views about how the court should exercise its powers except, I suppose, by drawing attention to the effects which various courses of conduct might have on the victims.

I hope that the principle behind Amendment No. 24 will be overtaken by a more general provision in due course when the results of the pilot schemes are available, if the pilot schemes tend to show that that is an exercise which will have beneficial effects sufficient to justify the work involved in doing that.

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8.30 p.m.

Lord Meston: Perhaps I may deal with the last point first. I understand and appreciate what the noble and learned Lord says about a pilot scheme and an increased sensitivity to the views of the victims of crime generally. But surely this Bill is unique, or if it is not it is almost unique, in providing not only that the court shall punish in appropriate ways the criminal who is convicted under Clause 5, but in providing also that there may be a restraining order to protect the victim. I believe that that is unknown in other areas of the criminal law. It is for that reason that I suggest that there is a need in this Bill for specific provision to ensure that the precise requirements of the victim and anybody else relevant to the restraining order should be brought before the court by a proper mechanism rather than in the hope that the police or the prosecution have sufficient up-to-date information as to the wishes of the victim.

I suggest that that is reinforced by the perfectly proper provision in the Bill which allows the person who is the subject of the restraining order to apply for a variation which, again, may well have implications for the victim. There should be a proper channel formally written into the Bill for the victim's wishes to be put before the court. It is for that reason, first and foremost, that I stress the importance of Amendment No. 24.

I revert now to Amendment No. 12. I feel a little disappointment in the noble and learned Lord's response. I understand his point about the inherent jurisdiction of the court, but surely this Bill is designed to provide a new code which deals comprehensively with the problem of harassment. If at all possible, the Bill, on the face of it, should set out as succinctly as possible all the available rights and remedies without leaving the lawyers involved, or the court or those who do not have the advantage of legal representation to work out what powers the inherent jurisdiction may provide in addition to what is set out in the Bill. It seems to me that it would look rather odd that this Bill is not written in the same terms as the Family Law Act.

As regards the injunction restraining the defendant, whether by himself or instructing or encouraging any other person, the noble and learned Lord is right to say that that was conventionally covered by an injunction which referred to the defendant's agents. The phraseology which I have included in the amendment is the more up-to-date, user-friendly jargon in the modern form of injunction. The use of servants and agents, in the time-honoured phrase, is now no longer fashionable, and properly so.

Again, I note what the noble and learned Lord said about the power of arrest. It is not strictly necessary for there to be a power of arrest attached to a civil injunction if the breach is a criminal offence. The purpose of the amendment was not to add something which was not otherwise there. But I suggest that whatever the necessity of the situation, it is desirable that, if at all possible, the victim should have a quick remedy and the same civil court which dealt with the matter should have the ability to deal with any breach almost on the spot, preferably, as I said, before the same judge.

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I shall have to think about how to proceed further with the amendments. But in the meantime, I beg leave to withdraw Amendment No. 12.

Amendment, by leave, withdrawn.

[Amendments Nos. 13 to 15 not moved.]

Clause 3, as amended, agreed to.

Clause 4 [Putting people in fear of violence]:

[Amendments Nos. 16 to 19 not moved.]


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