HC Deb 18 December 1996 vol 287 cc982-8 '. In any proceedings under this Act, where it appears to the court that distress is being caused to any person who may have been the victim of any act of harassment to which this Act applies by reason of the decision of the person accused of that act of harassment to represent himself in those proceedings, it may require the person accused of the act of harassment to be legally represented.'.—[Ms Janet Anderson.]

Brought up, and read the First time.

Ms Janet Anderson

I beg to move, That the clause be read a Second time.

The new clause's purpose is to highlight a problem about which the Minister and I have corresponded. It concerns the arrangements for defendants to cross-examine witnesses in person.

Recently, two cases aroused particular public concern. The first involved Julia Mason, who was cross-examined for six days by the man who was eventually found guilty of raping her.

The second case was that of Margaret Bent, to whom I have already referred. Margaret was cross-examined by her alleged stalker, Dennis Chambers. At the time of the case, the National Association of Victim Support Schemes called for the victims of domestic or sexual violence or similar cases to have the right not to be examined by the accused. In view of what happened to Margaret Bent, I should be grateful if the Minister would give us a progress report on the deliberations in which I know that his Department is engaged.

Mr. Maclean

The new clause would give the court discretion in any proceedings under the Act to require a person accused of an act of harassment to be legally represented if it appears to the court that distress is caused to the victim of that harassment by reason of the accused representing himself.

The Government recognise that serious concerns have arisen from the recent cases in which victims of rape and stalking offences have been caused enormous distress by being cross-examined by defendants who are not legally represented and who appear to take the opportunity during the cross-examination to make the victims relive some of the horrendous experiences they have endured. We find that unacceptable. My right hon. and learned Friend the Home Secretary announced in a speech in October that he was determined to ensure that it was prevented. A review of the law covering this matter is under way.

Depriving a defendant of the right to represent himself if he chooses to do so is a serious matter, and there are some complex issues to consider carefully, including the range of offences to which such measures might apply. Confining it to proceedings relating to harassment alone, which is what the new clause would do, would not meet the concerns of one of the rape victims about whom we heard earlier and would not cover the case that gave rise to the most concern. There are also other serious offences to which this provision would sensibly apply.

Mr. Bennett

Can the Minister tell us the timetable for the review?

Mr. Maclean

No, I cannot. The review is being conducted as speedily as possible. I have not set an artificial time scale, but we want the answers as soon as possible. It is not an easy thing to do. The mischief—I use that word in its technical legal sense—or the evil, which is a more colloquial word, caused by the comments and behaviour of those representing themselves is a complex thing to try to prevent. The damage that we want to prevent is simple to describe, as is the concept, but the practical issues are tricky.

Mr. Michael Stephen (Shoreham)

I can well understand that depriving a defendant of the opportunity to be represented at all would be a very serious matter. However, many people within and outside the House of Commons would think that to tell a defendant that he must be represented by a lawyer would not be such a serious deprivation and would not outweigh the right of the complainant not to be subjected to the indignity that the two unfortunate women to whom the hon. Member for Rossendale and Darwen (Ms Anderson) referred had to endure.

Mr. Maclean

I have heard my hon. Friend's point of view; he is experienced in these matters. If we propose taking away the right of defendants to represent themselves, we have to be careful how we do it, in what cases we do it and where we draw the line. It could be a slippery slope towards removing the right of defendants to represent themselves in quite the wrong cases.

When we reach our preliminary conclusions, we will discuss them with the Law Society and the Bar Council, but we are not at that stage yet. We wish to make progress as quickly as possible. My right hon. and learned Friend the Home Secretary and I and all right-thinking people were appalled at the way in which one defendant in particular behaved in the rape cross-examination. We would all like to stamp out such mischief, overnight if possible, but as I have said, this is a complex area of law.

We fully understand the concerns that lie behind the new clause. I do not believe that the hon. Member for Rossendale and Darwen (Ms Anderson) intends to insist that this should be built into the Bill for harassment only. When we find a solution to the problem, we want it to apply to a sensible and coherent range of measures. There may be a range of offences where we would want to make some changes, if we conclude that change is possible and can be done sensibly.

I hope that the hon. Member for Rossendale and Darwen will withdraw the motion and accept my assurance that the Government wish to move as speedily as possible. We want to reach a sensible conclusion, which, we hope, will be acceptable to most of those in the profession and the judiciary, which will not infringe anyone's rights or take away justice and which victims will find bearable.

5.45 pm
Mr. Menzies Campbell

The Minister's account of these matters is well judged and appropriate. If one is to innovate on the constitutional right of any individual to defend himself or herself, one must be certain that it is entirely justified. I have not had the benefit of reading the transcripts of the two trials to which reference was made. However, in my experience, which is perhaps becoming increasingly outdated and is confined to Scotland, any effort at repetitious or offensive cross-examination from an individual defending himself or herself was almost always dealt with extremely severely by the judge. The point at which it becomes offensive is a fine judgment to make, but, for most people, the offensive nature of the two cases to which we have referred must have been evident to all who were participating. I am a little surprised that the judges did not feel able to take what one might regard as a firmer hand.

Mr. Maclean

It may help the hon. and learned Gentleman if I tell him that reading the transcript would not give a full account of the offensiveness. In one case, the defendant wore identical clothes to those he wore during the rape and deported himself in a similar way. The transcript does not give the full picture of the evil that he was committing in the court.

Mr. Campbell

There is no substitute for being present in the case. One often reads reports of cases in which one has been involved which seem to bear little resemblance to reality. I accept that there is a problem, and my only question is why a firmer hand was not taken. Perhaps the Lord Chancellor should issue some clearer directives on what is permissible.

Mr. Stephen

rose—

Mr. Campbell

I must make progress, because I know that the Committee is of that mind.

There are some instances in which the accused commences the case being represented but, as the case progresses, it becomes impossible for his or her legal representatives to continue, either because the nature of the instructions changes dramatically and puts the professional position of the legal representative in jeopardy or because the instructions change so as to suggest an approach that does not amount to a defence in law. If legal representatives have withdrawn, it might be difficult to force the appointment of other legal representatives, who might find themselves faced with the same problem.

There might be almost a pantomime: the case would be adjourned so that fresh counsel could be instructed and that fresh counsel would turn up the following morning saying, "We have had a consultation with the accused, but, unfortunately, we are unable to represent him." Such circumstances could bedevil proceedings in a way that would not add to the dignity of the court.

There are complicated issues involved in not just the constitutional principle but the practicality of making a rule such as that proposed in the new clause. I hope that the motion is not pressed to a Division, because I do not believe that, in the present state of our knowledge and the consultation, we would be able to reach an informed decision.

Mr. Stephen

The hon. and learned Member for Fife, North-East (Mr. Campbell) mentioned cases in which judges deal quickly and decisively with defendants who represent themselves and break the rules of procedure. Like him, I have some experience in the courts, and I fear that, in many such cases, judges are reluctant to interfere with the conduct of a defence by a defendant in person lest that be used as a ground of appeal leading to a subsequent hearing in the Court of Appeal.

On the hon. and learned Gentleman's other point—if the defendant were to run a defence that is not a defence in law—there is no more reason for allowing him to run that defence in person than if he were represented by a lawyer.

Ms Janet Anderson

This is obviously a very difficult issue, and we have no intention of pressing the motion to a Division—although I am grateful for having had the opportunity to air the subject. I am also grateful to the Minister for his concern about the problem. We are thankful that his Department is conducting its review, and we look forward to a speedy response. We hope that it will be possible to do something to end the type of problem experienced by those women.

I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

Bill, as amended, to be reported.

Order for Third Reading read.

5.51 pm
Mr. Maclean

I beg to move, That the Bill be now read the Third time.

My right hon. and learned Friend the Home Secretary said in yesterday's debate on Second Reading that the Bill had one simple aim: to protect the victims of harassment. The Bill aims to give that protection, not by defining activities that are known as stalking—as we believe that such a definition will inevitably omit some activities that are distressing, or worse, to victims—but by focusing on the harm inflicted on the victim. That harm is harassment. The benefits of proceeding in such a manner are that all forms of harassment—whether stalking, racial abuse, neighbour or work disputes—are covered.

As I listened to the speech of the hon. and learned Member for Fife, North-East (Mr. Campbell), I was tempted to say that I wish that I had the benefit in England of Scotland's breach of the peace provisions, about which I learned many years ago.

The Bill adopts a twin-track approach by using the civil and criminal law, both of which have a part to play in providing effective remedies to combat harassment. The new concept of a restraining order that will be available to criminal courts on conviction is a major step forward and has been welcomed by those campaigning on the issue.

The Opposition agreed to co-operate with the Government to pass the Bill without delay. We have made some good progress today, and I am delighted with the support and assistance that we have received today. It is a matter of regret that we got a bit bogged down yesterday and that the Bill was amended in a manner that is unacceptable to the Government and absolutely unworkable in practice. We will have to take a little time in another place to put the Bill back on the straight and narrow.

Sentencing is a matter for the criminal courts, and conditions of treatment attached to sentences are a matter for them. We believe that they have ample powers to order treatment, which might be probation, intensive therapy or counselling. I believe that counselling is of value only when it is entered into voluntarily and willingly. People seek counselling, but they cannot be forced into it. Moreover, civil courts do not sentence people at all but are a forum for the resolution of disputes. However, that issue can be addressed in another place.

Mr. George Howarth

The Minister said that counselling is effective only if it is undertaken on a voluntary basis. He should examine some of the programmes for prisoners run by the Prison Service. Prisoners are required to attend those programmes, which often achieve very good results among those who have attended on a non-voluntary basis.

Mr. Maclean

We do not want to get into that debate now; I merely say that there is a world of difference between the situation that the hon. Gentleman describes and prisoners whose entitlement to parole or early release depends on their participating in the prison regime and other activities, such as drying out from drug dependency. Technically, attending such a programme in prison may be voluntary, but prisoners believe that, if they do not attend, they will not be granted parole. There is a sanction in prison that will not be replicated in the outside world, particularly through civil courts. However, let us not discuss that issue on Third Reading.

We will continue to place the safety and protection of the British people at the top of our agenda for action. The Bill is one of a number of measures that the Government have recently introduced in the House or in another place that, when enacted, will make the United Kingdom a safer and a better place in which to live. As I said earlier, I have no wish to delay the Bill further. The Government have set out clearly our objections to the Opposition's amendment, and we have stated our intention to put the Bill right in the other place. Victims of stalking and of other forms of harassment should not have their hopes of protection put at risk by any further delay or unnecessary amendments to the Bill.

I believe that the Bill will provide victims of harassment with the protection that they need. The Bill's provisions strike the right balance between the need to give reassurance and protection to victims and the need not to constrain legitimate activity, whether it is the action of journalists, private investigators, debt collectors or, of course, politicians.

With the caveat that I have mentioned, I commend this excellent Bill to the House.

5.55 pm
Ms Janet Anderson

The Opposition had always intended to be fully co-operative on the Bill, because, like the Minister and Conservative Members, we recognise the need to bring relief to the victims of stalking as quickly as possible. The intention of our amendments, therefore—despite what some hon. Members may think—was not to obstruct. I should tell the Minister that, had we intended to be obstructive, we would have pushed our definition to a Division. We chose not to do so, because we wanted to facilitate the Bill's passage. The Suzy Lamplugh Trust agreed that our amendments were intended to improve the Bill, and that was their intention.

As the Minister has mentioned yesterday's events, I should mention the reason for what we did. Criminal courts already have powers—which have been confirmed and backed by the Government—to provide counselling to confront offenders' criminal behaviour. However, as the Bill is drafted, that power would arise only when an injunction was breached—when a defendant resumed his stalking—and would be dealt with only by applying the much higher burden of proof of beyond reasonable doubt. As we know, many stalkers are obsessive, and firm action to confront their offending behaviour may have to be taken as quickly as possible. The threat of imprisonment is also necessary if victims are to be properly protected.

That is why, last night, the Opposition moved amendment No. 13, to provide county courts with power to order counselling when making an anti-stalking injunction. In moving the amendment, my hon. Friend the Member for Knowsley, North (Mr. Howarth) said: We mean not some pleasant chat over a cup of tea … but the sort of counselling that forces offenders to face up to their offending behaviour".—[Official Report, 17 December 1996; Vol. 287, c. 838.] The Minister claimed in his speech that our amendments were unworkable. I refer him to the leader page of tonight's Evening Standard, which rightly states: Tony Blair, promised to cooperate with the Home Secretary in getting the Bill through the House without delay", and that the Home Secretary is now accusing Labour of going back on its word by putting up amendments to the Bill which would clarify what it means by harassment. The Evening Standard goes on to say that the right hon. and learned Gentleman's Labour counterpart is right to insist on scrutiny. Mr. Howard's Bill, like so much of the legislation which has emerged from the Home Office during his tenure, shows signs of clumsy and over-hasty drafting. I hope that the Minister will accept that we tabled our amendments with the best of intentions, and we hope that Ministers will give them—particularly the amendment that the House passed last night—serious consideration.

Having said that, we wish the Bill well and a speedy passage through the other place. I am sure that the thousands of victims of stalking, and those in other categories whom the Minister claims the measures will help—such as those in neighbour or racial disputes—will be greatly relieved when it reaches the statute book.

5.59 pm
Mr. Bennett

I, too, hope that the Bill turns out to be a good one, but I have to put down certain markers. I fear that, with the Government not prepared to commit any new resources, the legislation may not be enforced as effectively as the House would like. It is not reasonable to expect the police to be able to give the necessary time and attention to harassment cases in particular without there being resourcing implications. We should be worried about passing legislation without providing the necessary resources.

We should also ask whether the House did a proper job of scrutiny. I fear that we shall find that the Bill does not protect all those whom we want to protect. We may well find that one or two people whom we did not intend to be caught by the legislation will be. The lessons for the House must he that, although all-party co-operation is a good idea, it should not shorten proper scrutiny. I do not think that the Floor of the House is the proper place for detailed scrutiny. Even though we were trying to get the measure through House quickly, it would have been far better to send the Bill to a Standing Committee, even if the Committee had had to sit for long hours to carry out the scrutiny effectively. I hope that the legislation works, but, when the House looks back on this day and a half, I do not think that we will believe that we carried out our scrutiny role effectively.

Question put and agreed to. Bill read the Third Time, and passed.