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Lord Campbell of Alloway: My Lords, I support the amendment. It is absolutely essential that there should be proof of knowledge of the content of the order. This is general law. Why should there be an exception?
Baroness Scotland of Asthal: My Lords, when the issue of prosecution for breach of "without notice" non-molestation orders arose in Committee, I explained that the Government had drafted Clause 1 to avoid the existing problem of respondents deliberately evading service of an order and then breaching it with impunity on the grounds that they were not aware of its terms.
The intention of Amendment No. 5, tabled by the noble Baroness, Lady Anelay of St Johns, and moved by her today, is to provide additional protection for respondents to non-molestation orders, by making it explicit that a person can be found guilty of breach of an order only if he was aware of both the existence and contents of the order; or, after becoming aware of the existence of the order, he deliberately evades service of its contents.
I make it clear straightaway that I sympathise with her intention, but I hope that the noble Baroness will forgive me if I disagree with the need for this amendment. Your Lordships will recall that the Government built a safeguard into these provisions: a person can be found guilty of breaching a non-molestation order only if they did so "without reasonable excuse". As I explained in Committee, this proviso could, for example, operate so as to protect a respondent who co-operated with the service of an order but who, because of blindness or illiteracy, was unable to discover its terms before inadvertently breaching one of them. The circumstances of such a failure to comply would be considered by the court, and I believe this provides an adequate safeguard. It should not, of course, be forgotten that non-molestation orders generally prohibit harassment of the victim and it might not be unreasonable to expect a respondent who is aware of the existence of an order to refrain from such harassment.
I am also concerned that this amendment would make it harder to hold respondents to account for breaching an order because as well as proving that the order's provisions were breached, the prosecution might also have to demonstrate that the respondent had deliberately evaded service, and this would potentially be very difficult to prove. As I believe the noble Baroness mentioned, when we last discussed this, the noble and learned Lord, Lord Donaldson of Lymington, suggested that a bright lawyer would inevitably protest that the respondent could not be found guilty because he did not know the terms of an order. Should this amendment pass, the same lawyer would simply argue that his client could not be found guilty on the grounds that they had not deliberately evaded service. It might then be difficult to prove that the respondent had, for example, intentionally not answered the door to the process server.
The amendment could also prevent the conviction of respondents who, while not deliberately avoiding service of the contents of an order, were aware of its existence and made no effort to ascertain its terms before breaching one of them. We also need to bear in mind that non-molestation orders generally only prevent someone from undertaking behaviour that the respondent knows would be unacceptable, such as harassing the victim. For those reasons, I cannot accept this amendment. However, the noble Baroness should be reassured that the reasonable excuse to which I referred would enable the court in those circumstances to listen to what the defendant had to say and to mete out justice.
Lord Renton: My Lords, before the Minister sits down, she said that she agrees with the purpose of the amendment. If I heard her correctly, would she give an undertaking now to table an amendment at Third Reading which will enable her to fulfil the purpose of the amendment in what she believes would be a proper way?
Baroness Scotland of Asthal: My Lords, before the noble Lord, Lord Campbell, intervenes, our point is that
we sympathise with the intention behind the amendment, but we believe that that intention is already given expression by the term "without reasonable excuse". It enables the defendant to provide the court with evidence of the "reasonable excuse" that the defendant purports to have and it allows the court to determine the level of its reasonableness.
Lord Campbell of Alloway: My Lords, having listened to the debate with great care, it seems that something is adrift in both the way the Bill is drafted and possibly in the amendment. Without giving any undertaking, will the Minister give further thought to the matter, that someone who is not aware of the provision can be safeguarded?
Baroness Scotland of Asthal: My Lords, I will certainly continue to give such issues consideration, because—I make no bones about it—I am totally committed to making the whole Bill as fair, as effective and as just as I can. I reassure noble Lords that I am probably causing my officials great consternation by constantly reviewing matters, even those which no one else has worried about. I can give that assurance without any difficulty at all.
Baroness Anelay of St Johns: My Lords, I am grateful to my noble friends who have contributed so effectively to the debate. The Minister tried to reassure me by saying that although she sympathises with my amendment, she can see no need for it and points to the provision in subsection (1) of the clause to the effect that the words "without reasonable excuse" would properly cover the matter.
My concern, as I have previously expressed, is that it is a substantial change, as the noble Lord, Lord Thomas of Gresford, outlined in detail in the previous group of amendments. It is a considerable change in which it is important that people are protected from the moment that an action occurs. The difficulty with the Minister's response is that if one is able to show that one has "reasonable excuse" one has already reached court.
Baroness Scotland of Asthal: No, my Lords. The noble Baroness will know that both the police and the Crown Prosecution Service, when deciding whether to charge or not, will have to consider the evidence before them. The most important point about the power of arrest is that the police are, at that moment, able to go to the house and remove the person from the site. Sometimes that is the most important part of the security for the woman.
They will then be obliged in the normal way properly to consider the nature of the charge—the noble Baroness will remember that we are changing the way in which the police operates to make the CPS responsible for the charge. There should be proper inquiries into whether this part of the offence is established, and whether that person can say "I had a reasonable excuse, because I knew nothing about this. I was away and did not get it", or whatever. The CPS can make that decision on whether it, the prosecutor,
thinks that there was not a "reasonable excuse"—and that is when there will be a debate in court over who is right and who is wrong.
Baroness Anelay of St Johns: My Lords, I am not at variance with the noble Baroness on that particular issue. Where I am at variance is that I think this is such a significant change that there needs to be clarity in respect of this particular protection, and in respect of the fact that in other parts of the law one would expect to have to know the contents of an order before there could be action taken. It is a matter between us, I think, not of disagreement over the ultimate objective but how we get there. My noble friend Lord Renton really put the matter far better than I did, when he asked for a Government amendment at Third Reading which would do the job better than this amendment. The noble Baroness is quite fairly saying that, as far as they are concerned, they have got there already. It is only in respect of that—because this is a matter of principle for me on Clause 1—that it is an issue I want to resolve one way or the other. One does not have to take up Third Reading with this. Only on that basis, I seek to test the opinion of the House.
6.15 p.m.
On Question, Whether the said amendment (No. 5) shall be agreed to?
Their Lordships divided: Contents, 42; Not-Contents, 79.
Alton of Liverpool, L.
Anelay of St Johns, B.
Attlee, E.
Biffen, L.
Bridgeman, V. [Teller]
Brooke of Sutton Mandeville, L.
Brougham and Vaux, L.
Campbell of Alloway, L.
Carlisle of Bucklow, L.
Cope of Berkeley, L.
Denham, L.
Elton, L.
Fookes, B.
Fowler, L.
Glentoran, L.
Hanningfield, L.
Jenkin of Roding, L.
Kingsland, L.
Laird, L.
Lamont of Lerwick, L.
Luke, L.
Lyell, L.
MacGregor of Pulham Market, L.
Marlesford, L.
Mayhew of Twysden, L.
Monson, L.
Northbrook, L.
Northesk, E.
Norton of Louth, L.
Park of Monmouth, B.
Parkinson, L.
Reay, L.
Renton, L.
Seccombe, B. [Teller]
Selborne, E.
Skelmersdale, L.
Stewartby, L.
Strathclyde, L.
Swinfen, L.
Thomas of Swynnerton, L.
Ullswater, V.
Watson of Richmond, L.
Acton, L.
Ahmed, L.
Amos, B. (Lord Privy Seal)
Andrews, B.
Archer of Sandwell, L.
Ashton of Upholland, B.
Bach, L.
Bassam of Brighton, L.
Beaumont of Whitley, L.
Blackstone, B.
Borrie, L.
Brooke of Alverthorpe, L.
Brookman, L.
Brooks of Tremorfa, L.
Burlison, L.
Campbell-Savours, L.
Carter, L.
Christopher, L.
Clarke of Hampstead, L.
Clinton-Davis, L.
Cohen of Pimlico, B.
Corbett of Castle Vale, L.
Crawley, B.
Davies of Coity, L.
Davies of Oldham, L. [Teller]
Dean of Thornton-le-Fylde, B.
Desai, L.
Dubs, L.
Evans of Parkside, L.
Evans of Temple Guiting, L.
Falconer of Thoroton, L. (Lord Chancellor)
Falkland, V.
Farrington of Ribbleton, B.
Faulkner of Worcester, L.
Filkin, L.
Gale, B.
Gavron, L.
Gibson of Market Rasen, B.
Goldsmith, L.
Grocott, L. [Teller]
Harrison, L.
Haskel, L.
Hayman, B.
Hollis of Heigham, B.
Howarth of Breckland, B.
Howells of St. Davids, B.
Hoyle, L.
Hughes of Woodside, L.
Hunt of Kings Heath, L.
Irvine of Lairg, L.
Janner of Braunstone, L.
Jay of Paddington, B.
Judd, L.
King of West Bromwich, L.
Kirkhill, L.
Lea of Crondall, L.
McIntosh of Hudnall, B.
MacKenzie of Culkein, L.
Masham of Ilton, B.
Massey of Darwen, B.
Pendry, L.
Pitkeathley, B.
Plant of Highfield, L.
Puttnam, L.
Ramsay of Cartvale, B.
Rooker, L.
Scotland of Asthal, B.
Sewel, L.
Simon, V.
Symons of Vernham Dean, B.
Temple-Morris, L.
Thornton, B.
Triesman, L.
Turner of Camden, B.
Warner, L.
Whitaker, B.
Wilkins, B.
Williams of Elvel, L.
Woolmer of Leeds, L.
Resolved in the negative, and amendment disagreed to accordingly.
6.25 p.m.
[Amendment No. 6 not moved.]
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