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Baroness Scotland of Asthal: My Lords, I agree with the comments made by the noble Baroness, Lady Anelay. I have had the privilege—and I do see it as a privilege—of representing women who had been subject to domestic violence since I started at the Bar in 1977, which is quite some time ago. All I have to say to the noble Lords, Lord Thomas of Gresford and Lord Carlisle, is that I wish it were so in relation to intimidation. I regret to tell your Lordships that in my experience dealing with these cases at the Bar, it was not so.
One must understand the nature of domestic violence. Many women will be brave for a while, sometimes brave for a moment, and in that moment they are able to withstand the pressure of the violence to which they are subject. However, that courage can wane. There are huge issues that women in this position have to look at: the risks to their families, to their friends, to their children. Sometimes, their resolve buckles. The people who make them buckle are usually the abusers. I wish that once a woman has
the courage to stand up and say "No", she always has the courage to maintain that position. The tragedy is that these women often do not. That is why those who represent vulnerable women in these situations say that we must cut this knot. On occasion, particularly if police go to the door and they see a women who has been badly battered and she has evidence of abuse, it must be proper for proper protection to be attempted.If we look at the history of many of those abusers who go on to kill, they have had relationship after relationship where the abuse of the women with whom they have been engaged has become more and more severe. Many of those women who do not want to go to court, who withdraw, end up in a situation more dangerous than before. It is a very important issue. I reiterate what the noble Baroness, Lady Anelay, said; those who deal with these matters have strongly said to the Government that this is what they want and need. They wish that when the police come to the door they are able to arrest the person and take him away, even if that is to cause respite thereafter.
I also reiterate what my noble friend Lord Borrie said. There are still two routes. In order to address this situation, which I believe the amendment seeks to tackle, we are leaving open the option of victims pursing civil actions for breach of non-molestation orders where the police are not involved or where the CPS decides that criminal prosecution is not appropriate. This should ensure that victims are not deterred from seeking the protection of the court because of fear of criminal action. In the Northern Ireland experience, where breach is already an arrestable offence, there is little evidence that this has deterred victims from obtaining orders. It appears to be working.
I say to the noble Lords, Lord Thomas of Gresford and Lord Carlisle of Bucklow, that I understand their concern. How far we should protect or honour choice is a real concern. It is a difficult balance. I am not pretending that it is not. Those who have dealt with this over a long period, who have hands-on experience at an operational level, have told us, and women have told us, that this is what they want. The Government do not have the arrogance to disagree with them.
Non-molestation orders go right to the heart of the protection for the victim where there is domestic violence. The noble Lord asks, "What of molestation orders?". Your Lordships will know that we are asking the court to consider, on every occasion that an occupation order is made, whether a non-molestation order should also be made.
As for the comments a few moments ago on the new clause, I maintain that, sometimes, occupation orders are made that have nothing to do with violence; they may deal with organisation within the home and with who should leave when. In other cases, the court may issue an occupation order telling one party that it must leave the home but the party does not do so. For example, someone may be suffering from Alzheimer's, and one of the reasons why the court orders them to leave is so that they will not be considered as voluntarily homeless. Because of the illness, however,
the person does not leave. They will be in breach. It is nothing to do with non-molestation orders or violence. It would not be appropriate simply to say that it applies in all cases.The scheme that we have put together says that whenever the court is considering an application, it should consider whether it is appropriate in those circumstances and on those facts to make a non-molestation order as well. We think that we can thereby deal with the matter. We say that the occupation orders are significantly different. We give as an example Section 40 of the Family Law Act 1996, which sets out a number of additional provisions that may be included in certain occupation orders, such as the repair and maintenance of the property, and the discharge of rent, mortgage payments or other out-goings. I am sure that the noble Lord, Lord Thomas of Gresford, with his fierce and proper interest in justice, would not like people to be arrested if they failed to paint the fence in accordance with an occupation order made against them.
We fear that the amendment places rather too heavy a burden on victims, leaving them open to undue influence by perpetrators. In addition, the amendment takes away the right of the Crown Prosecution Service to decide on prosecutions and the ability of the courts to convict and makes this conditional on the agreement of the victim. I say with due humility that that cannot be right. It is, of course, appropriate for the victim's views to be taken into account, and the judge can do so when passing sentence. I am sure that those prosecuting will also take those matters into consideration, as would be proper. We have made it plain that the police and the Crown Prosecution Service have to keep at the heart of their work the interests of the victim or the witness involved in the case. We see clear evidence of their doing just that.
Lord Thomas of Gresford: My Lords, when the noble Baroness was chiding me for a lack of experience in this field, my mind went back to 1960—I am not sure whether the noble Baroness was born then—when I was a 22 year-old articled clerk instructing a young barrister by the name of Emlyn Hooson, who was being led by Elwyn Jones QC. Somehow we all ended up in your Lordships' House; it must be a unique case. The case to which I referred was all about violence in the home occasioned by a husband who was mentally ill, and what was the effect of his mental illness upon the violence which he was creating. Thereafter, as a young solicitor, I obtained many an order on behalf of victims of domestic violence. In latter years, as the noble Baroness will appreciate, I have been involved with many murder cases where domestic violence has led, as she rightly says, to the ultimate conclusion. So I do not think it is a lack of experience I can be chided with by the noble Baroness.
Where I think the mistake is being made is in suggesting that prosecution for the breach of a civil order should be done against the wishes of the victim. We are not talking about serious violence. If a policeman goes to the door and he sees a victim who has been beaten up, he can arrest the husband whatever she thinks and take him before the court.
That is the protection that every citizen enjoys, and that is not being taken away by anybody. We are not dealing with that level of violence because the police already have ample powers, and the victim already has the full protection of the criminal law in that situation.This is an offence, I repeat, for the breach of a civil order which the victim has herself obtained. If she does not wish to make a complaint, then I do not see why anybody else should make a complaint on her behalf. She has her remedy in the civil court, which is a better remedy, as the Minister concedes—it is quicker and more effective. All I can see happening if the prosecution were foolish enough to bring a case against the wishes of the complainant, is that she would simply fail to give evidence. We would then be into the worst possible situation for that lady whereby she might be treated as a hostile witness; she would be cross-examined by everybody—by the prosecution, by the defence—in the context of the criminal courts. That must be bad for her.
I am grateful to the noble Lord, Lord Carlisle, for supporting the wider scheme that I put forward, as did the noble Lord, Lord Campbell of Alloway. I am very grateful to them for their continued support. If we take this route of making the breach of a civil order a criminal offence, surely it has to be with the consent of the person for whom that order was made, and by whom that order was made. Anything else is dragging the poor woman into the criminal courts where she will have an experience that she will not relish and will never forget.
I hope that the Government will think more about this, as will all noble Lords, before we get to Third Reading, because I do not undertake at this moment to drop this issue altogether. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
6 p.m.
Baroness Anelay of St Johns moved Amendment No. 5:
- Page 1, line 13, leave out "of the order" and insert "and contents of the order, save that if after becoming aware of the existence of the order the person deliberately evades service of the contents of the order, it will suffice that the person was aware of the existence of the order"
The noble Baroness said: My Lords, Amendment No. 5 follows on from the debate we have just had about the serious nature of the offence that the Government are introducing in Clause 1.
Just about the only protection for the person who will be arrested is in the proposed Section 42A(2), which provides that an individual would be guilty of a criminal offence only if he or she were aware of the existence of the order. I made it clear in Grand Committee that that is not enough protection. It takes little imagination to see that one might have a shouted telephone conversation that one person has an order against the other—that might be held to be sufficient to make the other person aware of the existence of the order, but without giving them any idea about what the court was preventing them doing.
In Grand Committee I moved an amendment with a similar objective to my Amendment No. 5, but I have subsequently redrafted that to take account of the objections that were raised to my drafting. The Minister in her response said that,
- "Orders must be served in person and, by refusing to open their doors to the processors, respondents can continue to harass the applicant while truthfully claiming not to have been served with the order".—[Official Report, 19/1/04; col. GC 225.]
When I moved my amendment in Grand Committee, the noble and learned Lord, Lord Donaldson, suggested that the amendment could be improved by adding wording such as,
- "provided that he knows that he should not be doing it in accordance with the order".
There appear to be no other instances in the courts where service of the contents is not required for liability to arise.
When the Family Law Bar Association responded to the Government's consultation, it supported this clause on the basis that it supported the proposal to criminalise breach of orders,
- "with the caveat that we do not support the criminalisation of breaches of orders that have been made 'without notice' and which have not been served upon the defendant".
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