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Lord Thomas of Gresford: My Lords, I am happy with the very full explanation that the Minister gave in relation to Amendment No. 33. However, on Amendment No. 36, we are left with a power for the court to prohibit,

The defendant has been acquitted, so by definition he is not guilty of that with which he was charged and we can regard him as an innocent person. The court may prohibit him from doing anything in order to protect any person—not a witness or a complainant, but any person—and the offence of which he has been acquitted may relate to anything. It is the widest power imaginable. At the moment, all we are doing is trying to find some way in which this wide power can be put within reasonable bounds. The only qualification, the only way in which it is limited, is that the court must consider it necessary to protect a person from harassment by the defendant. It may not be on evidence that has been produced in that case because

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there may be evidence at a later stage. It may be for any reason. I shall continue to look at this subsection to see if there is some acceptable way in which we can limit it to a degree.

As for the explanation relating to domestic violence, my noble friend's amendment, I am interested that the Home Office is working on a definition of domestic violence. Is it not possible to use that as a definition, without giving it statutory force? Is it not possible simply to say that in the Bill domestic violence means what the Home Office at some stage says it means, whether by judicial decision or whatever? Can we not use domestic violence in the Bill as shorthand for something that can be flushed out by the Home Office when it has come to its conclusions?

9.45 p.m.

Baroness Scotland of Asthal: My Lords, perhaps I should explain that we have had the benefit—a real benefit—of having an inter-ministerial group on domestic violence. Many departments that are affected, or that participate in this matter, are able to contribute, for instance, the Office of the Deputy Prime Minister, the Department of Health, the Department for Education and Skills and the Crown Prosecution Service, represented by the Solicitor General. Virtually every department is represented on the working group that is trying to craft a working definition. It will not be the Home Office definition or any department's definition. It will be one working definition that we can share with all the practitioners in the field who are trying to work in partnership. It brings home how difficult it is to nail down a definition, to put it in stone, because it changes as our understanding of domestic violence changes.

I thought it important for the House to know that we understand the necessity for clarity because we are asking practitioners across departments to work together from the same "hymn sheet", so that they understand what they are collectively trying to do. I understand the noble Lord's invitation to share once we have settled on something but, having listened to the debate, I am strongly of the view that it is not appropriate to have even an agreed definition in the Bill because it may very soon become obsolete or need amendment.

Lord Thomas of Gresford: My Lords, I am very grateful for that even fuller explanation. It ought to be possible to use a definition like that as shorthand at some stage. Perhaps that is for the future. For the moment, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 34 to 36 not moved.]

Baroness Anelay of St Johns moved Amendment No. 37:

    Page 6, line 4, leave out "considers it" and insert "is satisfied on the basis of facts proved on a balance of probabilities that it is"

The noble Baroness said: My Lords, in moving Amendment No. 37, I should explain that for the same reason as I did not move Amendment No. 35, I shall

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withdraw Amendment No. 38 before the next sitting and I shall not bring Amendments Nos. 32 and 34 back at Third Reading. All of these were primarily based on a particular approach to drafting in relation to other legalisation. I am content to follow the indications given by the noble and learned Lord the Attorney-General that the Government will consider these matters. I accept that there was no undertaking but that it is a possibility that amendments will be introduced, if not in this House at Third Reading, then perhaps in another place. Therefore, before the next sitting, Amendment No. 38 will be withdrawn.

But Amendment No. 37 has a different provenance. It is something to which I referred in Grand Committee. We are still with Clause 8. There has certainly been opposition to the clause's proposals for the power to have a restraining order even where there has been an acquittal, on the basis that it is wrong to impose sanctions on a person who has been cleared of criminal charges. I carefully considered all the representations we received, and I determined that we would be prepared to accept the measures in subsection (3), but with some amendment. I made it clear in Grand Committee that I thought that one such necessary amendment was to make it clear on the face of the Bill that the civil standard of proof is required to be met before a restraining order could be imposed on an acquitted person in the very wide circumstances of this new power, as the noble Lord, Lord Thomas of Gresford, explained in speaking to the previous group of amendments.

When I moved this amendment in Grand Committee the Minister said, at col. 250 of the Official Report, that it is unusual in legislation to define the standard of proof that the court should adopt in making its decision. I have considered further, and I think that it is necessary to make it clear in this case where we are introducing a very broad measure that has courted some controversy.

I was even more convinced of that after the noble Baroness's response in Grand Committee, because she said that there are cases where the court will have to apply a higher version of the civil standard in deciding whether past conduct is proved, depending on the nature and severity of the conduct alleged. The reason why it worried me is that it means that the Government's drafting does not give certainty of application of this new measure. It will be left to the court to decide which standard of the civil proof should be decided from case to case. I had hoped to make clearer on the face of the Bill that the ordinary civil standard should be applied. That is the reason behind my amendment. It would at least introduce the requirement that facts be proved. I beg to move.

Lord Renton: My Lords, I warmly support this amendment; I think it is a rather important one. The "balance of probabilities" is not a phrase normally used in criminal law. Here, however, we are dealing with restraining orders on acquittal, and therefore a different concept and burden of proof is necessary. I hope that the noble Baroness, Lady Scotland, will regard the amendment with sympathy.

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Baroness Scotland of Asthal: My Lords, I think that I should make it clear that what I was describing in Committee is the ordinary civil standard of proof, on the balance of probabilities. The amount of evidence that one has to produce to satisfy that balance of probabilities will differ in accordance with the gravity of the assertion that one wishes to establish. So it is the ordinary standard—not a new standard, but the ordinary civil standard.

I will not weary your Lordships by repeating verbatim my remarks on that occasion, but it might be useful if I repeated the main points. Before I do so, I should like to pick up on a point made in Grand Committee by the noble Lord, Lord Thomas of Gresford, that he had misunderstood the scope of the clause. I hope that we have always been clear about the scope of Clause 8.

The Explanatory Notes say that a restraining order may be made on conviction or acquittal for any offence, where the court considers it necessary to do so to protect the victim from harassment. Although this is a Bill dealing with domestic violence, it covers other issues. Clause 8 sits in Part 2, which deals with criminal procedure, not Part 1, which deals with domestic violence. Restraining orders under the Protection from Harassment Act 1997 are civil orders, using the civil standard of proof. The criminal courts are used to making such orders and using the relevant standard of proof. There is, therefore, no need to spell this out on the face of the Bill.

Also, by specifying the standard of proof, the courts would not have the flexibility they need. There are cases where, as I say, even though the court is making a civil order, it might need to apply a higher version of the civil standard in deciding whether past conduct is proved, depending on the nature and severity of the conduct alleged. I am sorry if I in any way disconcerted the noble Baroness or she came away with the view that I was saying that I was departing in any way from that civil standard. The amendment would make the flexibility that is inherent in the civil standard more difficult to achieve. I do not believe that the amendment would clarify the clause.

I hope that I have been able to explain why the noble Baroness need not be anxious about the matter. I hope that for the reasons I have set out she understands why I cannot accept the amendment.

Baroness Anelay of St Johns: I assure the noble Baroness that she does not disconcert me. In Grand Committee I understood her remarks in a different way from how she intended. However, I certainly understand the explanation that she gave today. As regards the amendment being unnecessary, the noble Baroness will be aware that I accepted the full ramifications of Clause 8 with some discomfort. I made it clear that I thought there ought to be at least some rather modest clarity on the face of the Bill. I was grateful to the noble Baroness for making clear at the briefing meeting before Grand Committee that there would be a requirement for a civil standard of proof in this matter for someone who has been acquitted of a criminal offence. However, in this instance I consider

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that it is important as a matter of principle to make it clear that clarity is needed. I wish to test the opinion of the House.

9.56 p.m.

On Question, Whether the said amendment (No. 37) shall be agreed to?

Their Lordships divided: Contents, 28; Not-Contents, 36.

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