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Lord Thomas of Gresford moved Amendment No. 4:
- Page 1, line 9, after "order" insert "or an occupation order"
The noble Lord said: My Lords, noble Lords will remember that in Committee I put forward an alternative to the making of the breach of the civil order, the non- molestation order, a criminal offence. I put forward as an alternative the possibility of strengthening the powers of the civil judge to deal with matters and to the granting of the power of arrest on every non-molestation order so that the police knew where they were, and the setting up of a register, so that in relation to a particular person it would be readily available to the police officer who was called on to enforce the non-molestation order. The Minister gave me a lengthy reply. There was one point in her reply that had considerable merit—that the criminal court has a wider range of penalties to deal with a person who has committed a criminal offence by community orders. I do not need to spell them out. That to my mind was the only advantage.
I have not pursued this line, because there could be an advantage in an extreme situation. The professional bodies, who know what they are talking about, and all colleagues who deal in this field to whom I have spoken regard the civil remedy, the civil application to the judge, when there is a breach of the civil non-molestation order as a far speedier and much more flexible way of dealing with the breach. The matter can be brought before the judge straight away. He has certain powers which would permit him to commit people to prison but also to let them go if the contempt of court were purged.
The purpose of the amendments that I have set down for this stage is to emphasise two points. First, if the breach of a non-molestation order is to be a criminal offence, then logic demands that it should be
a criminal offence to breach an occupation order. The answer that was given by the Minister last time took up one paragraph in Hansard. It did not flesh out any positive reason why an occupation order should be excluded from being made a criminal offence, saying simply that the court could make a non-molestation order as well. I do not think that is a very satisfactory answer.The second point, which was drawn to my attention by a professional body, is that, as drafted, it is possible for the criminal offence to be enforced against the wishes of the complainant. It is a position in which, for example, if the police were called to a house and the breach of a non-molestation order were involved, the police could take over a prosecution and contact the CPS even though the complainant who had obtained the order herself in the first place—because it is the non-molestation order that is being breached—objected to it. So the purpose of Amendment No. 6 is to make sure—and I am sure this was the Government's intention—that criminal proceedings would not be brought against the wishes of the person who obtained the non-molestation order in the first place.
We are told from all sides, and it is a matter of experience, that women who have obtained non-molestation orders in the civil court are reluctant to go to the criminal court. They are reluctant to stand among the people who frequent the criminal courts—among whom, of course, I include myself. They are reluctant to subject themselves, in public, to the sort of cross-examination which could take place in the criminal surroundings. It is much better for a complainant who has taken the initiative, with legal advice, of obtaining a non-molestation order in the first place to have the decision—yea or nay—whether a breach of it is to be regarded as a criminal offence. I hope your Lordships see the logic, fairness and justice of that. I beg to move.
Lord Campbell of Alloway: My Lords, I rise briefly to support Amendment No. 6 for the reasons that have been given.
Lord Borrie: My Lords, purely in relation to Amendment No. 6, I of course recall the arguments of the noble Lord, Lord Thomas of Gresford, in Committee. As the Bill stands, there are two alternative possibilities if a non-molestation order is breached. One is that at the victim's initiative, proceedings are taken in the family court, which is to be preferred for many reasons, as the noble Lord indicated. The alternative—and this has been proposed because there is an arrest power available for the criminal offence—is that a charge is brought under Clause 1. The noble Lord said, quite rightly, that it seems on the face of it to be possible to bring such a charge irrespective of the wishes of the victim, but he did not mention the possibility, which is hardly imaginary, that intimidation may well prevent the victim concerned wishing to bring those proceedings and that the police may well think it appropriate, in the interests of the public and the victim, that the proceedings should none the less be brought. Since a
breach of a non-molestation order would be a criminal offence under this clause and since that alternative procedure would be available, it would be rather odd for what is labelled "a criminal offence" if charges could be brought only if the victim consented, which is what Amendment No. 6 proposes.
Lord Thomas of Gresford: My Lords, perhaps I may briefly interrupt. I know that we are on Report, but the noble Lord raises a point that merits a response. I have of course considered the question of intimidation, but it should be remembered that the victim will already have obtained the civil order and done so in the context of legal advice and assistance. The risk of intimidation is remote, without the person concerned committing another criminal offence for which he could be arrested. Noble Lords should remember that assault, threats and so on can always be treated as criminal offences if the police are satisfied that they have taken place.
Lord Carlisle of Bucklow: My Lords, in Committee, I briefly supported the noble Lord, Lord Thomas, in his wider amendment, as it then was, which would have retained a breach of a non-molestation order as a civil, rather than a criminal, offence. I still believe that his original proposal was right. The compromise that he now proposes meets at least one of the objections to turning it into a crime. I pointed out in Committee, as did the noble Lord, that there may well be cases where a complainant wishes to take the other party back to the court because of a breach of a non-molestation order, but does not wish that person to be landed with a criminal record as a result. That would be avoided by the noble Lord's proposal that the matter should go to a criminal court only at the wishes of the person who is alleging the breach. Although I appreciate the concern of the noble Lord, Lord Borrie, about the possibility of intimidation being used to prevent that person wishing to make it a crime, I repeat what has already been said. The only reason for the non-molestation order being in place is that the party concerned has already been to the court and obtained such an order. Having taken that action, it is difficult to think, provided that they are limiting themselves to a civil breach of that order, that they are in any way likely to be intimidated from returning to the court. They are less likely to be intimidated than they were when they made the application for the original order. I still think that the noble Lord, Lord Thomas, is right.
5.45 p.m.
Lord McNally: My Lords, with so much of what in other circumstances would be expensive legal opinion flying around, I tread with great trepidation. However, I thought I might share with the Minister in particular and the House in general what might be called hearsay evidence. A week or so ago, I was invited to a lunch where I found myself in the company of a number of very distinguished judges. One of them took me to one side and said that he had been following the domestic violence Bill very closely and reading the Hansard
reports of the Committee stage. He said that he wanted me to tell the noble Lord, Lord Thomas of Gresford, that he had got it absolutely right about keeping such matters out of the criminal realm and in the civil. I immediately took credit for the line that we were taking. It was interesting that an experienced judge in this area felt that he should tell me with such enthusiasm that my noble friend was on the right track.
Baroness Anelay of St Johns: My Lords, the noble Lord, Lord Thomas of Gresford, has directed our attention back to one of the most intractable problems at the beginning of the Bill. He does so, rightly, to test the Government's proposal to introduce a new criminal offence, saying to us that there is another recourse—that one can make the civil procedure work better. The noble Lord, Lord McNally, has just referred to an eminent member of the judiciary who has taken an interest in the Bill and who has, with great courtesy, ensured that all noble Lords who have taken part in proceedings have the benefit of his opinion. I know that his opinion has gone more widely than that, too.
I made the point when we discussed the matter in Grand Committee that when I first saw the provision I looked very carefully at all the submissions that had been made to noble Lords before Second Reading, and subsequently. It was very clear that there was a divide in opinion about Clause 1 between those who have eminent experience in the legal practice in applying civil orders as against those organisations that represent women—and, sadly, it tends to be mostly women—who are at risk from domestic violence. In that I, of course, include their families who are with them.
I had great sympathy with the noble Lord, Lord Thomas of Gresford, when, in Grand Committee, he suggested that we should make what we have work better, so that we had that protection. I listened very carefully to the huge weight of material that we have received from outside organisations, which have said that their experience is that, simply, that did not work and that they did not have confidence in it working in the future. However, the noble Lord, Lord Thomas, is absolutely right in pointing to the fact that women do not like going to criminal courts on what they consider to be domestic matters. The response to that from those who represent victims has been to say that they know that has been the case in the past but that we need to make a shift, so that we really do protect women in the future; and that the only way to do that is by having a criminal offence.
I start from the same position as my noble friends Lord Campbell of Alloway and Lord Carlisle of Bucklow. I am very reticent about introducing new criminal offences. However, in this case, I am still listening. I have given a commitment to organisations that I have met since Grand Committee, some of them for the second time and some for the first time. They include the Children's Rights Consortium, Women's Aid, Refuge and Victim Support. I have given them the commitment that I will not take any action from the
Front Bench that will in any way reduce the protection that may be given to women. At this stage I have to say that I believe that the Government are making a very difficult decision, but one that I cannot yet oppose. Although I am prepared to give them the benefit of the doubt, I am still listening.The overall attitude that I have had from other organisations has been that, whatever the Government do, they must deliver better safety. That is what they really want. I have heard from lawyers repeatedly throughout our discussions behind the scenes on the Bill that they have done the absolute utmost to protect people who have been at risk and have suffered from domestic violence. They have talked to them and taken them through cases, but ultimately one of the greatest frustrations is that that particular client may see fit in the end to withdraw. That is often because of the very point made by the noble Lord, Lord Borrie, that even if there has been no intimidation, they fear intimidation.
I know that I have made a circular argument, but it is to illustrate the fact that I appreciate as much as anybody else that the issue is intractable. The Government are seeking a way out, and are trying to cut the Gordian knot and say, "Let's put the past behind us and try something new". In their consultation, they had a very heavy response in favour of the measures. At that stage, I did not have much of a response against the Government. I have concerns about this provision on the basis given by my noble friend Lord Carlisle of Bucklow today and, at greater length, in Grand Committee and I endorse all that my noble friend Lord Campbell of Alloway said at greater length in Grand Committee. He quite rightly kept his remarks brief today.
So I am still listening but whatever I, as a Front-Bencher, ultimately agree to on the Bill, it has to have the fundamental tenet that if things have not worked in the past, whatever happens in the future there must be better protection. This will not be the only solution in Clause 1, nor in the rest of the Bill, but we are still looking for the answer.
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