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Lord Thomas of Gresford moved Amendment No. 4:
- Leave out Clause 7.
On Question, amendment agreed to.
Baroness Scotland of Asthal moved Amendment No. 5:
- After Clause 10, insert the following new clause—
The noble Baroness said: My Lords, I hope that this amendment will find favour with your Lordships, notwithstanding the fact that its genesis comes from the Benches opposite.
The amendment goes slightly wider in relation to common assault than that which came before the House on the previous occasion. My noble and learned friend the Attorney-General indicated on Report that we were favourably disposed towards the amendment tabled by the noble Baroness, Lady Anelay, and we undertook to return to it at Third Reading.
Your Lordships will notice that our new clause is somewhat different from the amendment tabled in the name of the noble Baroness. The reason for this is that there is no reason in logic to distinguish between common assault and the other summary offences which, by virtue of Section 40 of the 1988 Act, are capable of being added to an indictment in the Crown Court.
We therefore concluded that the best solution would be a general provision that enables an alternative verdict to be returned under Section 6(3) of the Criminal Law Act 1967 in respect of all the summary offences listed in Section 40(3). This amendment requires a consequential amendment to the Long Title. On this occasion I believe that the noble Baroness will not object to any such amendment.
Whether there will be any practical value in the extension of Section 6(3) beyond common assault is not clear; there is a chance that cases might arise where it will be beneficial. But we are confident that this
The amendment to Schedule 7 limits the power of the Crown Court in dealing with one of these summary offences where an alternative verdict has been returned, in the same way as it is limited where the offence has been added as a count in the indictment. I beg to move.
Baroness Anelay of St Johns: My Lords, the old saying about not looking a gift horse in the mouth comes immediately to mind. I am enormously grateful to the Minister for putting forward this new clause which has within it the kernel of the offer that I made to the Government on previous occasions.
I would like to put on record one or two reasons why I am puzzled about the government amendment, although I have no intention of opposing it in any way. I brought forward my amendment in the first instance on the basis of some remarks that were passed in the course of the Court of Appeal case by Lord Justice Rose. I would not wish him—or others in the Court of Appeal—to think that I had misunderstood what he was proposing as a solution to an existing problem.
My amendment was an attempt to provide for the position where the jury are not sure that the offence charged on the indictment has been proved, but are sure that an alternative offence, which is expressly or impliedly included in the unproved allegation, has been proved. At the moment on a charge of ABH, the jury cannot convict of common assault as an alternative, unless there is a specific count on the indictment. I am grateful that the Government have accepted that this should be remedied.
The Government want to extend my original amendment. The Minister said that there is no reason in logic to differentiate between that and the other offences which are the subject of this clause. The new offences to be added in are those of assaulting a prison custody officer, assaulting a secure training centre custody officer, taking and driving away, driving while disqualified and low-value criminal damage under £5,000.
All of these offences were made summary by the Criminal Justice Act 1988. Notwithstanding that, Section 40 enabled them to be added as a specific count on an indictment if they were factually linked with an indictable offence which was charged on the indictment. On conviction the penalty can be one available only on summary conviction. The section was intended to avoid the need for a separate trial in the magistrates' courts after a Crown Court trial of the indicted charge.
It will be apparent that some of the offences listed in Section 40 are unlikely to be alternative to an indictable offence charged on an indictment. That is what puzzles me. In those circumstances they would not be expressly or impliedly included in the unproved allegation. In order for there to be a conviction, such offences would have to be included in a specific count.
As an ex-magistrate, the obvious example to me is the charge of driving while disqualified; it does not seem to be an alternative to any other offence. I find a difficulty in the fact that the "blue pencil test" cannot be applied. I explained that term in detail in Grand Committee on 2 February, as reported in Hansard at col. GC 233, and I shall not test the patience of noble Lords by referring to the details of that at Third Reading. The lawyers among us will understand it; I have learned what it means.
To return to the text of the Government's amendment, it is surely unnecessary to make separate provision for taking and driving away and low-value criminal damage. TDA can be an alternative only to theft of a motor vehicle or aggravated vehicle taking. Under Section 12(4) of the Theft Act 1968, TDA is an alternative to theft. The penalty is that available on summary conviction.
I could speak further on the other offences of criminal damage, but I think I have made my point. I do not object to the Government's clause. I am a little puzzled because the new offences added do not appear to follow the blue pencil test criteria. It seems that the Government have complicated matters; I hope that is not the case. I hope that no mischief has been created because I know that neither of us has that intent in mind. Otherwise I am glad to see this gift horse canter on to the statute book.
Baroness Scotland of Asthal: My Lords, I assure the noble Baroness that we looked at the matter very carefully and, for a number of technical reasons, we thought that it made sense. I have certainly listened to the noble Baroness's comments. I know that numbers are fairly light on all our Benches. I assure the noble Baroness that it was done in what was felt to be the most appropriate and convenient way, in a tidy and proper manner. I shall write to her with the detail so that other noble Lords do not have to go to sleep while I explain how it works.
On Question, amendment agreed to.
Clause 11 [Restraining orders: England and Wales]:
Baroness Scotland of Asthal moved Amendment No. 6:
The noble Baroness said: My Lords, these amendments respond to an amendment also tabled by the noble Baroness, Lady Anelay, the noble Viscount, Lord Bridgeman, and the noble Lord, Lord Campbell of Alloway, on Report on 9 March. The amendment would have given any court, when sentencing or otherwise dealing with a defendant for breach of a restraining order, the power to revoke the original order and to replace it with a new order. In response, my noble and learned friend Lord Goldsmith said that we would consider the issue further and return to the House.
Amendment No. 6 would amend Section 5 of the Protection from Harassment Act 1997 to achieve essentially the same result as intended by the amendment tabled on Report but with slightly different wording to fit with the structure of the 1997 Act. It would allow a court, when dealing with a person for the offence of breach of a restraining order, to vary or discharge the order in question by making a further order. The amendment will help to ensure that a restraining order continues to reflect the risk of harassment by the defendant towards the victim and will allow the court to change or to end the original restraining order as necessary. We hope that it will also help victims of harassment when a restraining order has been breached, in that it will reduce the need for them to apply to the court that made the original order for the order to be varied or for further protection—that is the current position under the Protection from Harassment Act 1997.
Amendment No. 8 would achieve the same result for Northern Ireland by amending Article 7 of the Protection from Harassment (Northern Ireland) Order 1997. I beg to move.
Baroness Anelay of St Johns: My Lords, unlike on the previous amendment, I am not at all puzzled; I am just grateful. I support the amendments.
On Question, amendment agreed to.
"Common assault etc as alternative verdict
In section 6 of the Criminal Law Act 1967 (c. 58) (trial of offences), after subsection (3) (alternative verdicts on trial on indictment) insert—
"(3A) For the purposes of subsection (3) above an offence falls within the jurisdiction of the court of trial if it is an offence to which section 40 of the Criminal Justice Act 1988 applies (power to join in indictment count for common assault etc), even if a count charging the offence is not included in the indictment.
(3B) A person convicted of an offence by virtue of subsection (3A) may only be dealt with for it in a manner in which a magistrates' court could have dealt with him.""
1.30 p.m.
Page 7, line 10, at end insert—
"( ) After subsection (6) of that section insert—
"(7) A court dealing with a person for an offence under this section may vary or discharge the order in question by a further order.""
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