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Standing Committee E
Tuesday 22 June 2004
(Afternoon)
[Mr. Joe Benton in the Chair]
Clause 1
Breach of non-molestation order to be a criminal offence
Amendment proposed [this day]: No. 2, in page 2, line 1, leave out 'existence' and insert 'terms'.—[Mr. Grieve.]
2.30 pm
Question again proposed, That the amendment be made.
The Chairman: I remind the Committee that with this we are discussing the following amendments: No. 78, in page 2, line 1, leave out 'existence' and insert 'content'.
No. 26, in schedule 7, page 41, leave out lines 14 to 16 and insert—
'''(4A) A court considering whether to make an occupation order shall also consider whether to exercise the power conferred by subsection (2)(b) and, whenever violence has been used or threatened, or where there is a risk of significant harm to the applicant or any relevant child, must use the power conferred by subsection (2)(b) to make a non-molestation order.''.'.
No. 17, in schedule 7, page 41, line 14, leave out from 'shall' to end of line 16 and insert
'use the power conferred by subsection (2)(b) to make a non-molestation order, whenever violence has been used or threatened, or where there is a risk of significant harm to the applicant or any relevant child'.
Mr. Dominic Grieve (Beaconsfield) (Con): Welcome to the Chair, Mr. Benton, and to the proceedings of this Committee. They were most enjoyable this morning and will, I hope, continue to be so this afternoon.
I was making a point this morning about the relationship between the civil and criminal proceedings and how the Bill would affect those. After I sat down, the Minister kindly indicated that a comment that he had made earlier in response to the hon. and learned Member for Redcar (Vera Baird) had potentially given a misleading impression as to what elements of the civil procedure would survive in future.
If I understand this important matter correctly, we will be invited by the Government to amend schedule 7 to delete entirely the power of arrest in civil proceedings, as it is considered no longer to be necessary because there is a general power of arrest associated with the breach of the non-molestation order. At the risk of taking slightly more time in responding to that than necessary—the Minister may wish to intervene, or we may wish to deal with the
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matter at a later stage—let me say that it highlights the extent to which the civil procedure is disappearing down the plughole of history.
Let us consider that for one moment. If no power of arrest is attached to a non-molestation order and the person breaches it, the only avenue for revisiting the matter must be for the case to go to the magistrates court. As far as I can see, in those circumstances there will not even be a power for the police physically to take a person from detention at a police station back to the county court, although I suppose that if the victim were to issue a summons in the county court and serve it on the police when the person was in police custody, the police might be under an obligation—as they are in any other civil proceedings—to produce the prisoner at the county court, but not because of the breach of any order.
If I have understood correctly, and we are going to delete the power of civil arrest, perhaps the Minister will explain, either now or on clause stand part, how there will ever be a power to produce someone coercively at the county court thereafter for the breach of an order. I do not think that there will be such a power. It will be finished. The hon. and learned Member for Redcar suggested that civil proceedings for contempt would henceforth be a dead letter.
I hope that the Government have thought that through, because if that is the consequence, as the hon. and learned Lady said, circumstances that might better be visited by contempt proceedings will inevitably have to be dealt with through the criminal justice system. That would cause me some anxiety. I can see the logic of the Government's getting rid of the power of arrest in contempt proceedings and attaching the non-molestation order, but that must mean that the civil judge's jurisdiction ends with the order and thereafter he will never be seized of the matter again, except insofar as it relates to other domestic proceedings for which he may have responsibility.
I do not intend to press these matters any further. However, I will think about them, because I am concerned that the full implications of the measure for the civil jurisdiction of the county court and the civil courts generally have not been addressed entirely. If the civil judge has no power to order the arrest and subsequent production of a defendant appearing before him for contempt, contempt proceedings must effectively be at end. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Mrs. Cheryl Gillan (Chesham and Amersham) (Con): I beg to move amendment No. 79, in page 2, line 9, leave out '5 years' and insert '1 year'.
The Chairman: With this it will be convenient to discuss amendment No. 80, in page 2, line 11, leave out '12 months' and insert '6 months'.
Mrs. Gillan: I, too, welcome you to the Chair, Mr. Benton. I hope that we shall be as easy—and as good-humoured—a Committee as you have ever chaired, after this morning.
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Making breaches of non-molestation orders punishable by a maximum five-year sentence makes all breaches arrestable, irrespective of whether a judge may have thought that the circumstances required there to be a power of arrest, but not all organisations believe in that. One of the organisations that I have talked to is Liberty, which is concerned about some of the ongoing moves that blur the distinction between civil and criminal law. Given that a non-molestation order is issued on the basis of a civil burden of proof, Liberty feels that it is inappropriate for a criminal sanction to apply for a breach. However, if feels that if such an offence is to be created, the proposed maximum sentence in the Bill is disproportionate and that no offence should be deemed to have been committed if the person was unaware of the terms of the order.
These simple probing amendments would have the effect of reducing the maximum custodial sentence to 12 months on indictment and six months on summary conviction, and of ensuring that individuals who were aware of the existence of the order but not of its terms would not be subject to prosecution. They give us a device whereby we can look at why the Government have decided on five years and 12 months. I look forward to the Minister's explanation.
The Parliamentary Under-Secretary of State for the Home Department (Paul Goggins): Like the hon. Member for Chesham and Amersham (Mrs. Gillan), I welcome you to the Committee and our deliberations, Mr. Benton. The Opposition clearly wish to hear our reasoning for these offences, which I shall set out.
Amendments Nos. 79 and 80 would reduce the maximum penalties for the criminal offence of breach of a non-molestation order as set out in clause 1. Amendment No. 79 would reduce the maximum penalty for conviction on indictment from five years' imprisonment to one year while amendment No. 80 would reduce the maximum penalty on summary conviction from 12 months to six.
The Government believe that the proposed maximum sentences in the Bill are the right ones and that the five-year maximum penalty for conviction on indictment sends a strong and clear message to domestic violence offenders that the courts will treat breaches of orders seriously. As well as reflecting the seriousness of domestic violence, the fact that the maximum penalty will be five years also means that under the terms of section 24(1)(b) of the Police and Criminal Evidence Act 1984 the offence is one where the police can arrest for breach without the need for an arrest warrant. We have taken that step in response to the concerns raised in the consultation exercise on the ''Safety and Justice'' domestic violence consultation paper.
Many respondents to that paper pointed out that there is considerable confusion on the enforcement of non-molestation orders where the police's power to arrest can sometimes be unclear. Under the Family Law Act 1996 the court can attach a power of arrest to some, all or no parts of the order and the police can
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arrest without a warrant only for those parts that have a power of arrest attached, otherwise a warrant needs to be issued by the courts. That can clearly lead to problems at the scene of an alleged breach of an order where it can be unclear what the police's arrest powers are.
Our proposal in clause 1 removes that uncertainty by ensuring that the police can always arrest for breach without the need for a warrant: a considerable improvement in the protection for domestic violence victims. While I am sure that it is not the intention of those who have tabled the amendment, if it were accepted it would leave the police with less power to protect victims. I hope that the hon. Lady is reassured by the Government's thinking and that she will withdraw the amendment.
Mrs. Gillan: I thank the Minister for that reply, and I agree with most of what he said. These amendments were tabled because it is right that all organisations should have their voices heard in this Committee, and because I felt that the Minister should have a chance to put on the record the explanations for these terms, which will provide victims of domestic violence with a great deal of comfort and more protection than they have had in the past.
Mr. Grieve: It seems to me that the Minister has made a powerful case, as it requires the five-year sentence to make the offence arrestable. However, I have a residual anxiety—which I know my hon. Friend might share—about how the police will in practice establish criteria as to how to proceed. It would be a dangerous procedure if there were a substantive offence such as a serious assault and the police were just to proceed for the breach and not for the actual offence, but that is a matter that should be dealt with by ordinary prosecuting guidelines.
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