PROCEDURE AFTER ARREST (Hansard, 30 June 1981)

§ Mr. Rifkind
I beg to move amendment No. 18, in page 18, line 17, leave out 'released' and insert 'liberated'.
This is purely a drafting amendment to achieve the consistent use of the word "liberated" throughout clauses 16 and 17. I commend it to the House.

§ Mr. Rifkind
I beg to move Government amendment No. 19, in page 19, line 21, at end insert— '(ia) the statement referred to in paragraph (a)(ii) above discloses a prima facie breach of interdict by the non-applicant spouse.'.

Mr. Deputy Speaker
With this we may take Government amendments Nos. 20, 21 and 22.

§ Mr. Rifkind
This amendment, together with the other amendments in the group, responds to the point raised by the hon. Member for Glasgow, Garscadden (Mr. Dewar) in Committee, when he suggested that the sheriff should be satisfied that a prima facie case for breach of interdict existed. This seems a sensible, further safeguard against 795 an arrested spouse being unreasonably detained for up to a further two days. In those circumstances, we felt it appropriate to respond to what was a constructive and helpful suggestion by the hon. Gentleman. I am therefore happy to commend the amendment to the House.

§ Mr. Dewar
I feel rather a heel in rising to make a slight reservation about the amendment. I am grateful for the amendment, but it is the last survivor of a large number of attempts that I made to improve the clause. I hope that the Minister will explain one small point to me. When I suggested that we should give the sheriff the test of a prima facie breach of interdict I thought of it as an alternative to clause 17(5)(b)(i), which says that proceedings for breach of interdict will be taken in respect of those facts and circumstances". I accept that a subsequent amendment takes out in respect of those facts and circumstances", but the test of the sheriff deciding that proceedings for breach of interdict will be taken survives. I should have thought that that should be dropped when the new test was put in. Why should the sheriff have to be satisfied that there is a prima facie case and that proceedings are likely to be taken, given the difficulty that was much canvassed in Committee, that he can hardly be expected to put himself into the minds of the applicant spouse and his or her advisers and that they may have no part to play in the proceedings? It must be an act of faith on his part to assume that there will be proceedings. What he can more usefully decide is whether there is a prima facie case for breach of interdict on the facts that have been presented to him. I am curious to know why we did not get rid of the present subsection (1) and merely substitute the prima facie test. That would have received a warmer welcome from me.

§ Mr. Rifkind
I am grateful for the hon. Gentleman's qualified welcome of our acceptance of his proposed amendment. I agree that in the vast majority of cases what he suggests would be sufficient. However, there is a possibility that in certain circumstances, although it might appear to the sheriff that there was a prima facie case for such an action being brought, nevertheless there is evidence to indicate that the spouse who might have brought it has no intention of doing so. If it was clear, it would be quite unfair to the husband if he was detained because there was prima facie evidence of a breach but it was quite clear that no one intended to raise the action. The purpose of the two days' potential detention is to give the other party time to raise such an action if that party wishes to do so. If there is evidence to make the sheriff think that she has no intention of doing that, it would be quite unfair to the husband if this power were exercised. In those circumstances, it seems sensible to retain the provision.