POWERS OF ARREST FOR BREACH OF S. 14 ORDER (Hansard, 19 May 1978)

§ The Under-Secretary of State for the Home Department (Dr. Shirley Summerskill)
I beg to move, That the clause be read a Second time.

§ Mr. Deputy Speaker
With this we may take Government Amendments Nos. 6, 7, 9, 10 and 11.

§ Dr. Summerskill
The clause is a modified version of an amendment moved in Committee by my hon. Friend the Member for Barking (Miss Richardson). The 1037 Government undertook to reintroduce it on Report with the modifications necessary to take account of the magistrates' courts procedure.
The clause will allow a magistrates' court to attach a power of arrest to a personal protection order or a domestic exclusion order, where the court is satisfied that the respondent has physically injured the applicant and considers that he is likely to do so again. Where the court attaches a power of arrest to an order, a police officer may arrest a respondent without warrant if he has reasonable cause for suspecting that the respondent is in breach of the order, and bring him before a justice of the peace, who may remand him, in accordance with normal procedure, to be dealt with by a court for the alleged breach. The clause retains as an alternative the power for a magistrate to issue a warrant of arrest, which was previously embodied in Clause 15(1).
Subsections (1) to (3) of the new clause give powers to magistrates that closely resemble those already possessed by High Court and county court judges under the Domestic Violence and Matrimonial Proceedings Act 1976. However, they contain appropriate adaptations to take account of the differences between the two types of jurisdiction. The Associaion of Chief Police Officers, the Commissioner of Police of the Metropolis, the Superintendents' Association and the Police Federation have all stated that they favour an addition to the Bill along these lines. I believe that the provisions of the new clause will have a powerful deterrent effect as well as affording speedy relief to the threatened wife and children. As such, I commend it to the House.
Amendments Nos. 6, 7, 10 and 11 give effect to an undertaking that I gave to the hon. Member for Chislehurst (Mr. Sims) in Committee. The hon. Gentleman introduced amendments that would have provided, on the face of the Bill, for the duration of so-called expedited orders—that is to say, of personal protection orders that are made in an emergency without the normal procedural requirements being satisfied. At present the Bill leaves that to be dealt with in rules of court.
I had considerable sympathy with the honourable Gentleman's objectives but there were a number of difficulties about the way in which his amendments had 1038 been drafted. I undertook to consider introducing Government amendments. The amendments provide specifically both for the date when an expedited order is to come into effect and for its duration. They provide that the order will come into effect on the date when notice that it has been made has been served on the respondent, or such later date as the court may specify. The order will cease to have effect 28 days after it is made or on the date when there is a hearing in accordance with normal procedural requirements, whichever of those dates is the earlier.
These provisions are generally in line with the Law Commission's recommendations, with the difference that the Law Commission envisaged that the matter would be dealt with by rules of court rather than in the Bill. The Law Commission did not suggest a specific period after which the expedited order should lapse. We have fixed a period of 28 days, after which the expedited order will lapse even if there has been no proper hearing. In fixing that period we have attempted to strike a balance between the interests of both parties.
If the period were less than 28 days we do not think that the applicant would gain sufficient protection. It should be remembered that the 28 days run from the date when the order is made and not from the date when it takes effect. It may take some time to serve notice of the order on the respondent. On the other hand, we think that it would be unfair to the respondent for the period to be much longer than 28 days. If the order expires before the applicant has been able to obtain an order at a properly conducted hearing, she need not be left without protection. It will be open to her to apply for a further expedited order. That is already in the Bill, in Clause 15(4), which we are retaining subject to some consequential changes of drafting.
The amendments do not contain any provisions relating to the method by which the respondent is to be notified that an expedited order has been made. That is left to the rules of court.
As I said in Committee, service is a highly technical matter. It would not have been possible in the time available to carry out the necessary consultations and to draft complex provisions. I can 1039 indicate in broad terms what we are proposing to provide in the rules. We intend to provide that service should normally be effected by personal service on the respondent. However, where a single magistrate is satisfied that the respondent is attempting to evade service or that for some other reason expeditious personal service is not practicable, a single magistrate may authorise service by post. That is in line with the Law Commission's recommendations, and will ensure that the respondent's position is adequately protected.
These amendments make clear on the face of the Bill what was previously left to rules. I think that it is desirable to have specific provisions on a matter of this importance, and I hope that the House will accept the amendments as an improvement.

§ Mr. Roger Sims (Chislehurst)
I thank the hon. Lady for going a very long way to meet the points that I raised in Committee and for the time and trouble which have obviously gone into discussing the way in which the points can be met.
I realise that the period must to some extent be arbitrary, and I accept that 28 days is perfectly reasonable. I am sure it is right that a point of this sort ought to be written into the Bill, and Amendment No. 6 meets it exactly.
With regard to New Clause No. 4. I am glad to hear that the hon. Lady has been able to consult the various police organisations and that the clause has their blessing. It would appear to meet the point that was raised in Committee by the hon. Member for Barking (Miss Richardson), and it certainly has the support of the Opposition.

§ Miss Jo Richardson (Barking)
In welcoming the implementation by my hon. Friend of her undertaking in Committee to bring in the power of arrest, I wish to make one comment about a phrase in the new clause. I notice that the power of arrest may be used where the court is satisfied that the respondent has physically injured the applicant. I cannot quite understand why it should not have been that the respondent has used violence against the applicant.
1040 It seems to me that there will be a lot of difficulty for the courts in interpreting the words "physically injured". Does that mean that the woman concerned has to turn up with a black eye or a broken arm, or some other obvious manifestation, so that the court can see that she has been physically manhandled?
In the domestic violence legislation there was some difficulty in drafting Clause 2. In the end, although I was not very happy about it, we talked about "actual bodily harm". I was not very happy about that, because it is also rather too narrow a definition for the court, or the judge in this case, to use before deciding whether to commit the man to prison.
Apart from that, I am quite happy about the new clause and I am very grateful for it, because I think it will be of great help to many people. I should like to have an answer from my hon. Friend on the point that I have raised. If I am not satisfied with her reply I may pursue the matter further in another place.

§ Dr. Summerskill
I am informed that "physically injured" means the same as "actual bodily harm", which has a link with Clause 14. That is why that phrase was used.
From what my hon. Friend has said, however, it would seem that the overall term "violence" could be slightly vague in relation to what sort of violence ensued. I suppose that some people could interpret violence as mental or physical violence. But the legal reason for the use of the phrase "physically injured" is its link with Clause 14.

§ Miss Richardson
Will my hon. Friend consider that it is possible for people to have had violence inflicted upon them without there being any physical manifestation? I have met women who have been bashed about, without showing any bruises or having a black eye or a broken limb, yet it has been obvious from their emotional state that they were not lying about what happened to them. I wonder how the courts will deal with that sort of situation, when the words in the clause are so narowly defined that physical injury has to be proved.

§ Dr. Summerskill
My hon. Friend has given us food for thought, and I give an undertaking that we shall look at this 1041 point before the Bill goes to the House of Lords.