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Standing Committee E
Tuesday 29 June 2004
(Morning)
[Mr. Joe Benton in the Chair]
9.10 am
Mrs. Cheryl Gillan (Chesham and Amersham) (Con): On a point of order, Mr. Benton. There have been reports this morning of investigations being conducted in relation to murder and manslaughter, which will obviously have an impact on the subjects that we are discussing. Can the Under-Secretary of State for the Home Department, the hon. Member for Wythenshawe and Sale, East (Paul Goggins), make available any details that his Department has on those reviews and say whether there has been any analysis of the impact that they could have on, for example, the domestic violence homicide reviews that we discussed at an earlier sitting?
The Parliamentary Under-Secretary of State for the Home Department (Paul Goggins): Further to that point of order, Mr. Benton, I do not have anything to add immediately to enlighten the hon. Lady, but I promise to look into her point. If there is any appropriate information, I shall bring it to the Committee. Clause 10
restraining orders: England and Wales
Mr. Dominic Grieve (Beaconsfield) (Con): I beg to move amendment No. 10, in page 6, line 4, at end insert—
'(1A) In subsection (1) of that section after ''an order under this section'' insert—
''(a) if the prosecutor asks it do so, or
(b) if the court thinks it is appropriate to do so.''
'(1B) After subsection (2) of that section insert—
''(2A) For the purpose of deciding whether to make an order under this section the court may consider evidence led by the prosecution and the defence.
(2B) It is immaterial whether evidence led in pursuance of subsection (2A) would have been admissable in the proceedings in which the offender was convicted.''
(1C) After subsection (3) of that section insert—
''(3A) An order under this section takes effect on the day on which it is made, but the court may provide in any such order that such requirements of the order as it may specify shall, during any period when the offender is detained in legal custody, be suspended until his release from that custody.''.'
The Chairman: With this it will be convenient to discuss the following amendments: No. 34, in page 6, line 6, after 'heard', insert
'on the making of an order under this Act and'.
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No. 11, in page 6, line 16, at end insert—
No. 12, in page 6, line 34, at end insert—
'( ) In section 3(2)(fa) of the Prosecution of Offences Act 1985 (c.23) (functions of the Director of Public Prosecutions) after ''orders under'' insert ''Sections 5 and 5A of the Protection from Harassment Act 1997 (Restraining Orders),''.'.
Mr. Grieve: Clause 10 deals with the Government's intention to provide restraining orders that should be capable of being made on acquittal as well as on conviction, as they are at present. In addition, the Government intend to widen the conditions under which restraining orders may be made after conviction to cover conviction for any offence and not just a category of offence, as at present.
Amendment No. 10 is probing and is designed to find out from the Government whether the Bill's drafting will achieve the exact aims that the Government intend. As matters stand, my understanding is—the Minister will correct me if I am wrong—that a restraining order made after conviction is made of a court's own motion when the judge decides that it is appropriate to do so. So far as I am aware, no further evidence that could go towards the making of that order is adduced in court following a conviction. I had a look at the Protection from Harassment Act 1997, and nothing in it suggests that such a provision would be possible. If I am wrong about that, I would be grateful to be corrected.
In providing alterations to restraining orders on conviction, the Government have first, under clause 10(1), widened the scope of the offences to all offences for which a restraining order can be made. They have then added subsection (2), which states:
''Any person mentioned in the order is entitled to be heard on the hearing of an application under subsection (4).''
That raises two questions. First, do the Government wish the present format to continue, whereby only the court of its own motion can make the order? With restraining orders on acquittal, the possibility exists for the prosecution to make an application. Should it not therefore be for the prosecution, as well as the court, to make an application after conviction?
Secondly, what provision exists if an application is being made after conviction for further evidence to be adduced if necessary, in the same way as would happen after acquittal? Should not we ensure that the provisions after conviction and after acquittal are identical? Have the Government got the wording right to achieve that objective? If they do not intend to achieve that objective, and their view is that the procedure after conviction and after acquittal can be wholly dissimilar, I would be grateful to know why. For example, where someone is convicted of an offence of violence and more material could be placed before the court about the violence that he had done to a member of his household that had not been adduced in the main trial, because, for some reason, it had to be excluded, would it not be desirable for the prosecution
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to be able to say, ''We have some more evidence that we want to present as a reason for making a restraining order under the Protection from Harassment Act 1997''? Under the Government's proposals, that could happen after an acquittal, but I do not think that it could happen after a conviction. That is the nub of amendment No. 10.
Amendment No. 12 is mainly consequential. Amendment No. 11 is designed to make it clear that evidence can be led by the prosecution and the defence after acquittal in relation to the making of an order. New section 5A may provide for that to happen anyway, but I am not certain that, as it is drafted, it ensures that that is the case. I seek an assurance that the Government have noted those points; if the clause requires some amendment, it could be usefully amended along the lines that I have proposed.
Mr. David Heath (Somerton and Frome) (LD): I have a good deal of sympathy for the comments made by the hon. Member for Beaconsfield (Mr. Grieve). I shall primarily discuss amendment No. 34, which comes from a similar point. As I understand it, the procedure is that a victim may make representations and has a right to be heard on the variation or removal of an order. That being the case, it seems extraordinarily perverse that there is no right to be heard at the making of the order in the first instance.
The Minister in another place argued that such a provision was unnecessary for two reasons. First, because of the nature of the evidence that is given, the person is likely to be present in the court. Although there may be occasions when they are not, I accept that they often will be, or that they will be represented even if they are not physically present. The second argument is that the court, because it will have heard all the evidence in the main case, should not have to take other matters into account at the point of making the order.
As the hon. Member for Beaconsfield usefully pointed out, other evidence or circumstances that were not admissible or that were irrelevant to the main case may be admissible or relevant to the making of a restraining order. For that reason, my amendment simply provides for the victim to be heard at the point at which the order is made. It makes the procedure analogous to that which is spelled out in the Bill for the variation or revocation of an order, where it is clear that it is important that everyone who is a party to the order has the opportunity to be heard. I hope that the Minister will be sympathetic to the intention of the amendment and also to its content. It is a simple, small amendment that is in the spirit of the Government's proposals. It would make the situation explicit for the courts, and it would improve on the current position.
Vera Baird (Redcar) (Lab): There is concern among women's groups that there is no opportunity for the victim, at the end of a trial, to have some input into the kind of order that will be made. She may be there, as the hon. Member for Beaconsfield conceded, but she may well not. In some cases, the victim of a crime may
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just want to give evidence, leave and hear the outcome of the case later. There is no compulsion to remain to the bitter end, and she may not feel the impulse to do so.
There may be no opportunity to instruct the Crown Prosecution Service as to exactly what kind of order would help. More importantly, the victim should be there while the terms of the order are debated before the judge, because the orders are likely intimately to affect her life and relationships. We are talking about domestic violence on the part of a person who may well remain the father of the defendant's children. It seems slightly cavalier for a blanket order to be made without the defendant having any input at all, and there does not seem to be any reason why she should not have the opportunity to have input. Of course, that is part of the sentencing process and normally does not involve representations from elsewhere. However, there is a pretty direct analogy with victim impact statements: that is not the latest term for them; I have forgotten what it is—
The Solicitor-General (Ms Harriet Harman): Personal.
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