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Clause 11
Restraining orders: Northern Ireland
Question proposed, That the clause stand part of the Bill.
Lady Hermon: I plan to spend a few moments on the clause, which extends restraining orders to Northern Ireland. Part of me, but not all, is pleased that for once the Government have remembered Northern Ireland in relation to criminal law. As I said in debate on clause 10, we in Northern Ireland do not even have antisocial behaviour orders. I say that with great regret, because criminal law was not devolved even during the brief time that we had an Assembly, which was suspended in October 2002. Responsibility for criminal law in Northern Ireland has remained in Westminster since 1972. Last year, I was one of the first to complain that only a small portion of the Criminal Justice Act 2003 extended to Northern Ireland. However, we have a
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listening Home Secretary. Although he comes in for a lot of criticism, he is much admired in Northern Ireland for his extension of some provisions there.
Turning to restraining orders, the Constitutional Affairs Minister repeatedly made reference to the fact that the Protection from Harassment Act 1997 goes wider than domestic violence. That is absolutely correct. It deals with pursuing a course of conduct that leads to harassment and with the fear or threat of violence that can arise from harassment. I therefore have difficulty with the positioning of clause 11. I urge Committee members to remember that we have moved on from domestic violence to the crime section of the Bill. Although our debates are couched in terms of domestic violence, I urge all Committee members to pay attention to the wider remit of clause 10 and, in Northern Ireland, clause 11.
I should like to assist the Minister on two points. First, there is the question of references to the Northern Ireland Human Rights Commission. I was astounded—to put it mildly—when during a sitting last week I mentioned the NIHRC to the Minister and he was taken aback to hear that we have one at all in Northern Ireland. It is a statutory human rights organisation, not just any old human rights organisation. It was set up by the Labour Government under the Northern Ireland Act 1998. It has a statutory remit to be consulted and to advise the Government on the adequacy and protection of human rights. Its remit extends to all legislation that applies to Northern Ireland.
I again ask the Minister whether he has consulted the NIHRC. I should add, lest it be thought that I am the NIHRC's chief fan, that I do not agree with half of what it says. However, given its remit, it ill behoves the Government not to have consulted it, particularly on clause 11. I say that in the context of the fact that, long overdue, the Government have just completed their consultation period on ASBOs, which were introduced in the rest of the UK in 1997.
I am greatly worried that, under the clause, a person might be punished without a conviction for any offence, as long as their behaviour comes within the definition of harassment. The Minister has said that a restraining order can apply whenever there is criminal damage to property. Let us suppose that a judge in Northern Ireland has the option of issuing an ASBO or a restraining order. Will the Minister explain why such a provision is being drafted now and which factors will be uppermost in the mind of the judiciary in Northern Ireland? I accept that that question is hard to answer, but will he explain the guidance and the factors that a judge in Northern Ireland will take into account when deciding whether to issue an ASBO or a restraining order?
ASBOs are intended to ensure that a young person or a not so young person does not get a criminal record, but now restraining orders will be issued more frequently than ASBOs, and more people will therefore have criminal records. I need assurance from the Minister that the Northern Ireland Human Rights
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Commission has been consulted. What advice did it give about clause 11? Can he reassure me that ASBOs are still worth while in Northern Ireland?
Mr. Leslie: I appreciate the points made by the hon. Lady. It is important to take note of the fact that, although the provisions under clause 11 are identical to those under clause 10, they apply to Northern Ireland and we must consider them in that context. Although the provisions are identical, there is a different legislative context in Northern Ireland—although the point that the hon. Lady made about criminal law matters not being devolved but held at Westminster is correct, hence the fact that we are discussing them now.
It is important at the outset that I deal with the issues raised by the hon. Lady and reflect especially on the fact that restraining orders are not a punishment, but a preventive means of protecting the victim of a particular crime or a particular individual. Such matters came out of the consultation paper ''Safety and Justice'', which suggested that that was a good way forward. We would be wrong not to offer the benefits of the change in England and Wales to Northern Ireland.
The Solicitor-General and the Attorney-General have been working closely with the Director of Public Prosecutions in Northern Ireland, especially the domestic violence lead, Raymond Kitson. I pay tribute to them for their work. There has been a close dialogue between those involved in such matters in Northern Ireland and those here. I am aware that the Northern Ireland Human Rights Commission exists in a statutory context, but although it was established under the Northern Ireland Act 1998, it was not consulted specifically on restraining orders. However, it was consulted on the wider proposals to extend the Bill and its domestic violence provisions to Northern Ireland. That dialogue continues. Obviously, it is for the House to scrutinise the provisions step by step and to make specific decisions.
I am not a legal expert in this respect, but I understand that in Northern Ireland there is a closer working relationship between the civil, family and criminal sides in the same court environment. In a sense, therefore, many provisions will be somewhat easier to operate.
An order was laid yesterday for debate under the affirmative procedure to introduce ASBOs in Northern Ireland. I am hoping that there will be a debate on that before the summer recess, although I cannot guarantee the parliamentary timetable. I hope that reassures the hon. Member for North Down that we are trying to progress on extending to Northern Ireland some of the extra protections that have been available in England and Wales. Clearly, however, the relevant order has yet to be debated and agreed, and I would not want to pre-empt that process.
In general, I hope that the hon. Lady agrees that many issues of domestic violence and of the wider protection of persons from harassment or the fear of violence apply equally in Northern Ireland and in England and Wales. It is important that we have these provisions. We are seeking to achieve a realignment,
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regardless of the jurisdiction. That is why clause 11 is in the Bill and I hope that it will be allowed to stand part of it.
Lady Hermon: I am most grateful to the Minister for his response. I welcome the order in respect of ASBOs that was laid yesterday. It was challenged—judicial review was sought by the Northern Ireland Commissioner for Children and Young People because children had not been consulted—but the challenge did not succeed. It is welcome news to me that the legislation to introduce ASBOs was laid yesterday. Unfortunately, it will be done through an Order in Council so the provisions will not receive the proper scrutiny on the Floor of the House that it might otherwise have done.
The Minister is right that Northern Ireland is a small jurisdiction; we have 1.7 million people and the main courts are in Belfast. We only have nine High Court judges but legislation that was passed in this place last Thursday means that their number is to be increased by 10—a significant increase. It is, however, a pity that it was done last Thursday, before the judicial appointment commission could get up and going and ensure that the judiciary, in particular the High Court, was representative in terms of gender and ethnicity. There is not one female judge or one member of an ethnic minority in the judiciary in Northern Ireland.
I am pleased that restraining orders are to be made available in Northern Ireland through the Bill. I will closely examine their operation and how many are issued compared with ASBOs. I hope that the Government bear in mind the difficult circumstances that we have in Northern Ireland, particularly coming into the marching season. Where one might have anticipated ASBOs being issued, we may now have restraining orders. I will watch with interest. Perhaps when the Minister visits Northern Ireland he will come with me to visit the Northern Ireland Human Rights Commission and we will take it from there.
Question put and agreed to.
Clause 11 ordered to stand part of the Bill.
Clause 12
Application by prosecution for certain counts to be tried without a jury
Mr. Grieve: I beg to move amendment No. 89, in clause 12, page 8, line 5, at end add
'of all matters against the Defendant.'.
We now come to a part of the Bill that is fairly controversial. I hope that I will be excused if I make a few general remarks. Doing so might enable us to shorten the debate on clause stand part, but that is dependent on the Government's response, particularly on Government amendment No. 57, which we shall discuss in a moment and which fills me with gloom and despondency.
The Solicitor-General will recollect that during the passage of the Criminal Justice Bill through the House any restriction on the right of trial by jury was fiercely contested, and that at the end of the day the
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Government had to back down. They used the face-saving device of having one area that involved lengthy trials being subject to a double-lock mechanism of the resolution of both Houses of Parliament—something that is most unlikely ever to happen. I said to the Minister at the time, and I say it again, that the official Opposition accepted that there was a serious issue in relation to lengthy trials with multiple counts—indeed, not even lengthy trials but those that required multiple counts to be stated upon the indictment for the purpose of enabling the full gravity of a defendant's offence to be made clear.
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In the past, such cases were dealt with by offences being taken into consideration at the closure of the trial on sample counts only. However, after court decisions, which were inevitable, in the late 1990s it was firmly established that unless a defendant accepted other offences being taken into consideration, they could not be considered by the judge when he formed an overview of the criminality of the defendant on conviction. We were left with an indictment loaded with multiple counts saying much the same thing, or we proceeded on sample counts only, which might not be representative of the defendant's criminality. If the defendant refused to accept the other offences being taken into consideration, he could be sentenced only on offences of which he was convicted. I have always accepted that that was unsatisfactory.
If somebody lays their hands on a credit card and uses it 150 times, he is obtaining property by deception each time he uses it and is thereby committing 150 separate offences, and if the jury were required to consider all 150 counts, it would be placed under a considerable burden. In the past, that would have been unnecessary because the defendant would have been charged with half a dozen counts—one at the start of the period when he obtained the credit card, several in the middle and one at the end—and the judge would have been invited to take the other counts into consideration on conviction. In the old days, even if the defendant said that he did not accept that, the judge could still impose a sentence on the basis that he had committed the offence, but he can no longer do that.
That reinforces my view that there is a justification for a change to be made to the law in respect of such circumstances. However, we have always been anxious that that change should not simply be a device whereby the Government open the floodgates and restrict the right to jury trial. The devil is in the detail. When I first read the clause I was not impressed, because it was drafted—perhaps it is modern drafting practice—in such a way that it gave the impression in clause 12(1) that the prosecution could
''apply to a judge . . . for a trial on indictment to take place on the basis that the trial of some, but not all, of the counts included in the indictment may be conducted without a jury.''
The first message is wrong, but I accept that it is further qualified as one reads the other subsections.
My first amendment, No. 89, deals with a discrete point and, if we address that quickly, we can, perhaps, deal with the much wider point, which is the
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Government's intention to get rid of an important Lords amendment. I hope to be able to speak to that this morning, because I have to attend a funeral this afternoon.
One provision included by the Government in subsection (6) is that the judge, when deciding whether to allow certain counts to be tried without a jury if a person is convicted with a jury on the sample counts,
''must have regard to any steps which might reasonably be taken to facilitate a trial by jury.''
I assume that that means that the judge would discuss the matter with the prosecution, saying, ''Look, you have 60 counts on this indictment and you want to try 10. Wouldn't it be better to select 15 and drop the other counts, giving me sufficient basis on which to sentence? Some of the counts amount to a total criminality of £50,000, whereas the other counts only total a further £3,000. Will you please consider that?'' I assume that that is what subsection (6) is intended to achieve, but I am not sure that it does so. I tabled the amendment to make it clear that the judge has to consider what can be done to facilitate a trial by jury
''of all matters against the Defendant.''
I hope that that is already implicit in subsection (6), because I assume that that is what the Government intend. The Minister might agree with me that subsection (6) is slightly nebulous. What are these steps that
''might reasonably be taken to facilitate a trial by jury''
—and a trial by jury of what? Subsection (6) does not say. I assume that it must be of all matters against the defendant, in which case I urge the Minister to accept my amendment, which in no way detracts from what he is trying to achieve, but makes it clear what it is that the judge must set out to do.
I hoped that I would have an opportunity to speak to the Government amendment to the clause, but I fear that I will not. If I am not here to respond later, I would like to place on record that I believe that the House of Lords has correctly amended clause 12—
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