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Baroness Anelay of St Johns: I thank the Law Society for its briefing on these matters. The noble Lord, Lord Thomas of Gresford, takes us to the heart of the matterthat is, the debate, which is also going on outside the House as well, as to whether we are going too far in blurring the dividing line between civil and criminal matters.
My noble friend Lord Campbell of Alloway is right to remind us of his earlier offer of an amendment which focussed our attention on combined courts. I can well understand why organisations such as the Family Law Bar Association, in its response to the Government's consultation on these matters, pointed out the difficulties highlighted by the noble Lord, Lord Thomas of Gresford, and sought to resolve them by the establishment of a specialist court.
Baroness Scotland of Asthal: When the noble Lord, Lord Thomas of Gresford, was making his remarks I wondered whether he was concerned that, because magistrates are more used to applying the criminal standard, they would transport that into their assessment of the civil standard and that this would disadvantage the victim in some way. But something tells me that that was not within his contemplation.
Baroness Scotland of Asthal: I should preface my remarks by saying that we already have evidence of how this works by virtue of the Protection from Harassment Act 1997. This procedure already takes place under that Act where, as a matter of course, criminal courts are dealing with civil orders. As I said earlier, they do not appear to have had any difficulty in so doing.
Also by way of precedent, Section 1 of the Crime and Disorder Act 1998 uses a similar test to that contained in new Section 5A(1) in relation to anti-social behaviour orders on conviction. It states there that a court may make an order under this section if it considers it necessary to protect a person. So it does not appear to have caused any difficulty or impediment under those two Acts. Indeed, the Acts appear to have gained compliments from those who have had the privilege of using them.
It is important to bear in mind that restraining orders under the Protection from Harassment Act 1997 are civil, preventative orders made by a criminal court at the conclusion of criminal proceedings. Under the current terms of the Act, the orders are not limited to family cases but can be made when a person is convicted for offences under Sections 2 and 4 of the Act, which are offences of harassment and putting people in fear of violence. That includes offences such as stalking by a stranger.
The Government's aim under Clause 8 is to extend the protection offered by restraining orders to cover cases where someone has been convicted of any offence and also to allow the court to make a restraining order where there is insufficient evidence to convict but the court considers that it is necessary to make a restraining order to protect the victim.
Our proposals will obviously help victims of domestic violencewhich is one of the key issues dealt with by the Billbut they will also help in other kinds of cases which would not come within the remit of the family court and where it would not be appropriate for the family court to consider the case.
I understand that there might be concerns that Clause 8 is moving into the criminal courts matters which should more properly be dealt with in the family court, with judges and lawyers trained in family rather than criminal matters. But that is not so. As I have said, the Protection from Harassment Act has never dealt only with family matters and was built on the assumption that a criminal court could and should be able to make a civil order on conclusion of the criminal proceedings. Clause 8 continues the same principles, but the proposed amendments would undermine the criminal court's jurisdiction to make the order in the first place by remitting the case to the family court for further consideration.
So the amendments also fail to address a number of very practical effects. They do not set out what should happen when a court makes an order in a case that would not fall within the family court's jurisdiction or for how long a temporary order would last, given that restraining orders are made either for a specified period or until further notice. More importantly, they do not set out what the family court could and should do. For example, could the court consider new evidence, or only that heard by the criminal court? If the latter, would there be any practical difference between the two courts' decision-making processes, unless different standards of proof were adopted? Could the family court overturn the criminal court's decision to make a restraining order? Where would the appeal route lie? A plethora of questions is left unanswered.
Finally, if the case is one that raises family law issues, there should, in any event, be separate family proceedings to deal with them. To hand over a part of the criminal proceedings for the family court to reconsider would not offer any further protection for
Lord Thomas of Gresford: I am grateful. Orders made under the Crime and Disorder Act and the Protection from Harassment Act follow conviction; not acquittal, but conviction. That is to say that the facts have been established in a particular case, on a criminal standard of proof, to the satisfaction of the court. Perhaps it is right that in circumstances where the court is then considering the appropriate thing to do, the word "consider" could be used. However, we are not dealing with that situation in this clause.
Baroness Scotland of Asthal: I hesitate to interrupt the noble Lord but I do not want him to misdirect himself. Under the harassment Act, what the criminal court is doing is making a civil order. That is what we are seeking to invite the court to do on this occasion. We are seeking to get a criminal court to make a civil order.
Lord Thomas of Gresford: I understand that entirely. However, it is making a civil order as a consequence of a conviction. That is the point that I am seeking to make. The facts will have been established and the court will then consider what to do by way of disposal. It can deal with the disposal of a case following a conviction in a number of ways, one of which is to make a civil order. However, this clause is dealing with a situation after a person has been acquitted. The facts, therefore, have not been established to the appropriate standard of proof. The matter is then at large and governed by the words, "If the court considers it necessary to protect a person from harassment" as though there had been a conviction. That word is appropriate where there has been a conviction but not where there has been an acquittal.
I have to make an apology to the noble Baroness in that I misunderstood the scope of the clause. Since this is a domestic violence Bill, I had assumed that the section would apply to domestic violence, not to every conviction of harassment. However, the wording of new Section 5A(1) shows that the noble Baroness is right. It does not deal only with domestic violence, but with any circumstance under which proceedings have
The noble Baroness said that there may be a case which does not fall within the jurisdiction of the family court. If it is the case that on an acquittal for anything a person may be made subject to an order under this new sectionoutside the context of domestic violence, but simply because the court perceives a risk of some form of harassmentand that the order can contain anything that the court seeks to put in it, then this is an enormously wide provision. I had not appreciated its scope. If that is what the Government intend, we must examine this new section with much greater scrutiny than that to which we have already put it.
That will make the new section even more unacceptable. Were we dealing only with domestic violence and the matter could be referred to the family court as I suggest in my amendments, at least there would be some bounds to this provision. At the moment, however, it would apply for any offence, including those outside domestic violence. If the court "considers" it necessary, the court can make an order. I respectfully suggest that that is wrong in principle. Although for the moment I shall withdraw my amendment, we will come back to the matter on the basis that the whole section should be excluded.