Grand Committee Report of 2 February 2004

Official Report of the Grand Committee on the

  Domestic Violence, Crime and Victims Bill [H.L.]
  (Fourth Day)
  Monday, 2 February 2004.
  The Committee met at half past three of the clock.
  [The Deputy Chairman of Committees (Lord Lyell) in the Chair.]
  Clause 6 [Establishment and conduct of reviews]:
  Baroness Walmsley Baroness Walmsley moved Amendment No. 40:
  Page 4, line 20. leave out "aged 16 or over" and insert "adult or child"
  The noble Baroness said: As it states in the Bill on page 4 line 25, the main objective of the domestic homicide reviews is to learn lessons so that warning signs can be recognised and preventive measures taken. However, the clause misses an opportunity for a more joined-up approach to domestic violence, family homicide and suicide.
  I say that for three reasons. First, in many cases both the adults—usually the mother—and children are killed by the same family member within a very short period of time. Secondly, this is often linked to the subsequent suicide of the perpetrator. Statistics on this, unfortunately, are not recorded but the number of cases where such deaths occur are frequently publicised in the media. Only last weekend there was a very sad case in East Anglia where that may have been the situation in the deaths of a mother, a father and one of their children. Thirdly, child deaths are not always investigated through social services Part 8 reviews if there has been no history of child protection concerns. The impact or context of domestic violence is not scrutinised routinely within Part 8 reviews, so it could be that valuable lessons are being lost.
  Child abuse is often hidden, particularly in middle-class families. Unless the provision of the new clause is widened, some children will continue to slip through the net because there has been no previous involvement with social services—and, therefore, no obvious child protection concerns—even though domestic violence and child abuse has been occurring.
  There is also a need to examine the role of the coroner's courts and their failure to address domestic violence as a contributory or causal factor in female suicides, especially in Asian female suicides or suspicious deaths. Again, these cases may not be revealed because of the hidden nature of abuse in some cultures, where the honour of the family is being protected.
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  For those reasons, the amendment represents an opportunity to scrutinise child death and suicide in the context of domestic violence and to incorporate Part 8 child death reviews into and within the process. I beg to move.
  Lord Renton: I find it necessary to support the amendment. It is quite absurd that until a child is 16 there can be no domestic homicide review. If a 13, 14 or 15 year-old child dies, what will happen? According to this, there will be no review. I agree with the noble Baroness who moved the amendment.
  Lord Donaldson of Lymington: I do not disagree with the noble Baroness. I have been looking through the amendments to find a peg on which I can hang a point I wish to make. Perhaps I may hang it on this one, even though it may not be the right one.
  If Clause 6 is to operate it will depend, as a matter of fact, upon there having been a death resulting from violence, abuse or neglect from—and these words reduce the scope of the clause—
  "a person to whom he was related … or a member of the same household".
  Someone may well start judicial review proceedings to stop such a review on the grounds that the conditions precedent had not been met. I suggest, for the merit and consideration of the noble Baroness and the establishment, that words such as "appears to have been" should be included to widen-out the clause so that it does not act as a fetter on jurisdiction. Whether this is the appropriate moment to raise the point, I do not know—but I have done so.
  The Minister of State, Home Office (Baroness Scotland of Asthal): I understand the noble Baroness's anxiety, although it is misplaced. I appreciate that she seeks to extend the scope of the proposed domestic violence homicide reviews so as to cover adults and children. At present, the clause deals with the death of a person aged 16 or over.
  The Government's aim in putting together the proposal for reviews was to put in place a system for learning lessons from domestic violence homicides. No such system currently exists on a consistent, national basis. The noble Baroness previously raised that issue and we seek to plug that gap. However, in doing so, we have sought as far as possible to avoid duplicating other reviews or blurring their respective roles.
  As many Members of the Committee will know, there is already in place a system of serious case reviews when a child dies, including by suicide, and abuse or neglect are known or suspected to be a factor in the child's death. That system covers children under the age of 18. So, to take up the point made by the noble Lord, Lord Renton, the reviews of children under 18 are already covered in those circumstances.
  Our aim has therefore been to extend a similar scheme to adult victims of domestic violence. We have selected 16 or over as the limit to fit with the age of consent and legal age for marriage, as that is the point at which domestic relationships can take on the seriousness that can trigger serious violence. We

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  recognise that the 16-or-over limit means that there will be some overlap with the under-18 scope of serious case reviews. But we believe that that overlap should be kept to a minimum.
  The amendment would largely duplicate existing arrangements for deaths of children and cause confusion at local level about which type of review should be used following the death of a child. For those reasons, we do not feel able to accept the amendment. In parenthesis, the amendment would also not bring suicide within the scope of the review. So, although I understand the noble Baroness's intent, our provision plugs the gap in a helpful way.
  Baroness Howe of Idlicote: I support the intention behind the amendment. As a result of the Bill, will records be kept of deaths of children as well as of adults, so that those who are trying to advance policies that will enable better protection against domestic violence have the figures that they need?
  Lord Renton: Before the Minister replies, perhaps I may make a point closely linked with that made by the noble Baroness. When I was told that the death of a person under 16 was already covered, I naturally read the earlier clauses and found that an offence that results in the death of a child under 16 is indeed covered in Clause 4. But where is the obligation to hold a review?
  Baroness Scotland of Asthal: The serious case review about which I speak is already present under, I think, a Department of Health provision. We seek to add to what is already there by including the review for domestic violence, which would include adults. We are talking about an additional review mechanism.
  The noble Baroness, Lady Howe, made a very valuable point in relation to collation of figures, because there may well be a correlation between the two at which we should look. May I answer her specifically by letter? I think that I will have a favourable response for her but I would simply like to clarify precisely the position that we expect, so that I can give her a full response.
  Lord Campbell of AIIoway: I have a question for the Minister on another point. What happened to the letters of 27 January to the Chairman, which were to be put in the Library? They are not in the Library. I would like to have a copy, because we have a meeting in about an hour's time.
  Baroness Scotland of Asthal: I apologise if that is so; I had understood that the letter had been sent and placed in the Library. The officials are here, and I shall make sure that they get a copy to the noble Lord as speedily as one can be delivered. I unreservedly apologise if something has gone awry.
  Lord Borrie: Will the Minister respond to the point made by the noble and learned Lord, Lord Donaldson, which struck me as most useful?
  Baroness Scotland of Asthal: I heard what the noble and learned Lord said. He was right to say that he did
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  not know whether this debate was the place for the matter, but the point was certainly right. Can I take the point away, look at it and come back to it?
  Baroness Walmsley: I thank the Minister for her response. We very much welcome the domestic homicide reviews, of course. However, we wish to extend them and incorporate the existing system of serious case reviews into them because the current system allows some children to slip through the net. I have described cases where there has been no previous evidence of child abuse, and such cases are not necessarily reviewed under the current arrangements. That is the concern that led me to table the amendment.
  Bearing in mind what the Minister said, I shall go away and read her remarks carefully in Hansard. However, I suspect that I may not be satisfied that the hole that Women's Aid has identified is plugged, and I may very well return to the matter on Report. In the mean time, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 41:
  Page 4, line 25, after "held" insert "after the conclusion of a criminal trial"
  The noble Baroness said: The amendment continues on the theme of the multi-agency homicide reviews. The reason why I tabled the amendment is very much in line with the point made by the noble and learned Lord, Lord Donaldson. My amendment asks the Government when it is intended that the homicide reviews should take place. If a criminal trial is under way, is it the Government's intention that the reviews should take place only at the end of the conduct of such a trial? That would be the result of my amendment, but it is the peg on which to hang general questions about the timing of such reviews. Could they take place when someone is not to be prosecuted—when it is proved or believed that a non-accidental death has occurred but someone has not been prosecuted for it? I beg to move.
  Baroness Scotland of Asthal: I understand the way in which the noble Baroness has tabled the amendment, so I shall not say that it is a stalking horse, but—
  Baroness Anelay of St Johns: I apologise for interrupting the noble Baroness at this early point, but I notice that the noble and learned Lord, Lord Donaldson, sitting unobserved on her wing also wishes to say a word. It may be easier if he spoke now so that the noble Baroness can then complete her remarks.
  Lord Donaldson of Lymington: I am a little obscured by my distinguished companions. Perhaps I may register a small niggle: surely the answer is to change the amendment so that it reads as "any criminal trial". That would achieve the whole object of the exercise.
  3.45 p.m.
  Baroness Scotland of Asthal: I believe that what the noble Baroness really wants me to do is to respond with the Government's thinking here. Perhaps I could

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  spend a little time pulling the amendment apart, as we usually do, but that is not what was intended by it and I shall not trouble the Committee.
  It is the Government's intention to issue guidance on the establishment and conduct of the reviews. We intend, as far as possible, to draw on the guidance already used for serious case reviews following child deaths and the guidance used currently by the Metropolitan Police for its domestic violence homicide reviews, which in turn draws heavily on the serious case review guidance.
  Both sets of guidance say that those conducting the review should discuss with the relevant criminal justice agencies how the review process should take account of criminal proceedings, considering, for example, timing, the way in which the review is conducted— including interviews of relevant personnel—who should contribute to the review and at what stage. The guidance takes the line that case reviews should not be delayed as a matter of course because of outstanding criminal proceedings or an outstanding decision on whether or not to prosecute. Much useful work to understand and learn from the features of the case can often proceed without the risk of contamination of witnesses in criminal proceedings. In some cases, it may not be possible to complete or publish a review until after criminal proceedings have been concluded, but that should not prevent early lessons being implemented. I believe that this is a sensible approach which can adequately be dealt with in guidance rather than in statute.
  The amendment would also have the effect of limiting reviews to those cases where there was sufficient evidence to bring a prosecution. The noble Baroness is aware, I know, that in many cases the lessons have to be learnt equally clearly when there is no realistic prospect of prosecution; sometimes, it may be argued, that may be even more the case. I believe that this would place an unnecessary restriction on the availability of reviews. For example, it would remove from the scope of reviews the particularly tragic cases where one partner murders the other, and sometimes the children too, and then commits suicide. There would be no prosecution here, but it is highly likely that there would be lessons to learn and the amendment would prevent that.
  I hope that I have given a sufficiently detailed outline of the Government's thinking to satisfy the noble Baroness so that she will not be troubled to come back with this amendment.
  Lord Campbell of Alloway: May I ask the noble Baroness to confirm whether before a criminal trial or after its end the person who actually initiates such a review is the Secretary of State? Can she confirm that no one else can initiate it other than the Secretary of State? That is how I read the draft. However, I find it confusing—I am not that good on construction.
  We have here the duties of persons and bodies set out in subsection (4), but on seeking to construe it as a whole, it seems that the only "person" is that listed in
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  subsection (2)—the Secretary of State—who may institute the review. Can anyone else do so, and if not, why not?
  Baroness Scotland of Asthal: Clause 6(2) states:
  "The Secretary of State may in a particular case direct a specified person or body within subsection (4) to establish, or to participate in, a domestic homicide review".
  The Secretary of State will be the person responsible for issuing the guidance about which I have just spoken. That would indicate who, at the local level, may initiate reviews and there would be a reserve power to order a local agency to institute such a review if the agency failed to do so.
  Subsection (3) places a duty on,
  "any person or body within subsection (4)";
  that is, a specific duty is placed on those bodies,
  "establishing or participating in a domestic homicide review (whether or not held pursuant to a direction".
  That deals with a situation where the guidance sets out when a review should be undertaken and/or if the bodies should fail to follow that guidance, the Secretary of State may give specific direction.
  Lord Campbell of Alloway: I am happy with following the guidance. I seek confirmation that only the Secretary of State may issue a direction, if he wants, to the persons listed in subsection (4). Will there be any implementing provisions governing the Secretary of State's powers to give such directions? The provision looks a bit naked and confusing.
  Baroness Scotland of Asthal: With respect, we do not think that it is either naked or confusing. The Secretary of State will issue the guidance that will set out the parameters for the review regarding when it will be expected that the persons or bodies listed in subsection (4) should exercise their duty pursuant to subsection (3). If they fail to exercise that duty, properly or at all, the Secretary of State may direct them so to do. It is anticipated that, in the ordinary way, the persons and bodies in subsection (4) will of their own volition institute such reviews as appear to them proper and consistent with the number of deaths that occur in their area. We do not anticipate that it is likely that the Secretary of State will very often, or at all, have to direct such bodies to discharge their duty. I hope that that assists the noble Lord.
  Lord Campbell of Alloway: I am very much obliged to the noble Baroness. That still leaves the problem with the drafting; the bodies in subsection (4) do not appear to be given direct authority. But I shall not argue about the matter.
  Baroness Anelay of St Johns: I am grateful to the Minister. The purpose of our conversation sotto voce was to confirm that the Government have agreed today—as a very special offer and not as a precedent, as I understand it—that the Committee will be able to take a humanity break at around five o'clock for a quarter of an hour. I see a nod from the Government Whip, so that seems acceptable. I accept thai: that is not a precedent.

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  I am grateful to the Minister for tying in the indication that the guidance will be based on serious case reviews. That is a matter on which I have had meetings since the previous Committee sitting last week. As a result of those discussions, I was able not to comment on Amendment No. 40 and will be able to go relatively quietly on this one.
  My concern is always that guidance in such matters should ensure that any homicide review initiated in no way affects the outcome of a criminal trial. That was one of the issues put to me. Although I shall return to those who have represented their concerns to me, I hope not to need to return to the matter on Report. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved AmendmentNo. 42:
  Page 4, line 28, at end insert—
  "(2A) The Secretary of State shall issue guidance as to the establishment, membership and conduct of domestic homicide reviews."
  The noble Baroness said: The purpose of the amendment is to ask the Government to explain how they intend to establish homicide reviews. My noble friend Lord Campbell of Alloway, having looked more closely at the drafting of the clause, directed us to the fact that only the Secretary of State may initiate the reviews. How will the Government determine who should serve on homicide reviews? Subsection (2) states that the Secretary of State may direct a "specified person or body" to take part in a review. The Explanatory Notes state that the authorities listed in subsection (4) will have a duty to have regard to the guidance.
  In drafting my amendment, I had in mind a briefing from Refuge, which supports the proposals to learn lessons for prevention by establishing the reviews. However, it believes that it is essential to include voluntary sector members on the review board, particularly those with expertise in domestic violence matters.
  We wish simply to ask the Government whether they intend to include voluntary agencies in the reviews, and to flesh out their thinking on who will participate in them. I beg to move.
  Baroness Scotland of Asthal: I thank the noble Baroness for that. I certainly reassure her that, as I said, the Government fully intend to issue guidance on the reviews, so the requirement on the Secretary of State to do so is unnecessary, as I think she accepted. Neither is it necessary to provide a specific power for the Secretary of State to do so, as guidance can be issued without that.
  The guidance will, of course, cover issues of membership. That was the Government's intention in referring in Clause 6(3) to the guidance covering "the establishment and conduct" of the reviews, and in setting out a list of the principal people who will be compelled, as it were, to carry out that work. The
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  guidance will refer predominantly to the role of statutory agencies, although there may be cases where those agencies wish to draw on the knowledge of the voluntary sector. The amendment is, therefore, unnecessary.
  Our problem with including voluntary agencies in subsection (4) as a matter of right is that all those listed in the subsection will be compellable, because the Secretary of State will be able to direct and/or compel them to take part in the reviews. The noble Baroness is right to emphasise the importance of voluntary agencies, which do enormously good work. It may often be appropriate for them to be included. However, we did not feel it proper to include them in the list of agencies which would be compellable as of right. They are, after all, voluntary bodies.
  Baroness Thomas of Walliswood: I think that the Minister agrees that, in certain cases, voluntary agencies may be highly desirable partners in such inquiries. Would it be feasible to include wording such as, "and such other persons as shall from time to time be appropriate", so that it is stated that such people may, on occasion, have to collaborate with such an inquiry?
  Baroness Scotland of Asthal: I hear what the noble Baroness says. We may be able to do that through guidance, because there are a number of occasions on which the benefit of having a voluntary agency involved in the review is clear. In fact, local arrangements will often mean that they will become involved, as is proper.
  Members of the Committee will know that we are trying to encourage more and more partnership between voluntary and statutory agencies. That is taking place in the working of local criminal justice boards, crime and disorder partnerships and in many other spheres where joint, partnership working is most useful. Guidance may be the better place for such a provision. We did not think it proper to name any voluntary agency, not least because it would be wrong to make-it compellable by the state when it is a voluntary agency, which may reconstitute itself in a different form.
  Baroness Howe of Idlicote: Was it not particularly valid to suggest that we should leave open who else could be included, and at least to state that? If we do not, it strongly appears to be a group of official people meeting and that anyone else would be a second-class citizen.
  Baroness Scotland of Asthal: There is already a power to amend the list of bodies in Clause 6(6), but it would not be appropriate to add named charities— such as, say, Refuge—as compulsory participants in the review. The import of what the noble Baronesses, Lady Anelay, Lady Thomas of Walliswood, and Lady Howe, said, is well taken, but Clause 6(6) already deals with that and we have the opportunity to deal with it in guidance. I hope that that satisfies the Committee that we have covered the situation appropriately.
  4 p.m.
  Baroness Anelay of St Johns: I am grateful to the Minister. I accept entirely her point that the clause as drafted lists those bodies that are to be compellable, and that there is a very fine line that voluntary groups do not wish to cross. On the other hand, later in the Bill, we come to questions about the victims' code. Victim Support, of its own volition, will be taken as part of a statutory system that could, in a criminal justice process, have a very significant impact on the trial. There are always difficult decisions to be made regarding voluntary agencies.
  The noble Baroness, Lady Howe of Idlicote, put my point far more clearly than I did when she said that it was all a question of whether one is seen as a first or second-class citizen. Voluntary agencies wanted to achieve from the Government what they have today; that is to say, an assurance from the Minister that voluntary agencies will be taken seriously in these matters and that they will be involved in them. I would like to see the guidance in order to be reassured of that. It would be interesting if the Minister could give us a steer on when that guidance might be available.
  It is very much a matter of concern that statutory agencies may not always take the advice that is to hand and that could be relevant in these reviews. It may be convenient for the noble Baroness to write to me about the publication of the guidance. If it were a fraught matter one could return to it, but I hope that it will not be such. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 43:
  Page 4, line 33, at end insert—
  "(a) in relation to England and Wales—"
  The noble Baroness said: The government amendments would have two effects: first, to amend the references to health authorities to reflect accurately the position in Wales, and, secondly, to extend the clause to Northern Ireland. The Government have consulted the Probation Board of Northern Ireland, the Police Service of Northern Ireland and the Department of Health, Social Services and Public Safety. There is broad agreement within those bodies that homicide reviews should be introduced in Northern Ireland in line with England and Wales. If Members of the Committee would like, I would be happy to go through each amendment; otherwise, I beg to move.
  Baroness Anelay of St Johns: On previous occasions I invited the noble Baroness not to move her amendments on Northern Ireland. These amendments fall into a different category because they do not cover contentious material. Therefore, I do not object to Amendment No. 47, as the noble Baroness might otherwise have expected me to.
  On Question, amendment agreed to
  Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendments Nos. 44 to 48:
  Page 4, line 38, at beginning insert "'Strategic"
  Page 4, line 40, at end insert—
  "Local Health Boards established under section 16BA of that Act;"
  Page 4, line 40, at end insert—
  "NHS trusts established under section 5 of the National Health Service and Community Care Act 1990 (c. 19)."
  Page 4, line 40, at end insert—
  "(b) in relation to Northern Ireland—

  the Chief Constable of the Police Service of Northern Ireland;

  the Probation Board for Northern Ireland;

  Health and Social Services Boards established under Article 16 of the Health and Personal Social Services (Northern Ireland) Order 1972 (S.I. 1972/1265 (N.I. 14));

  Health and Social Services trusts established under Article 10 of the Health and Personal Social Services (Northern Ireland) Order 1991 (S.I. 1991/194 (N.I. 1))."

  Page 4, line 41, leave out "subsection (4)" and insert "subsection (4)(a)"
  On Question, amendments agreed to.
  Clause 6, as amended, agreed to.
  Clause 7 [Common assault to be an arrestable offence]:
  Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 49:
  Page 5, line 12, leave out "(k)" and insert "(m)".
  The noble Baroness said: Members of the Committee will be aware that the power of arrest for common assault was extended to Northern Ireland in the initial draft of the Bill. That is an important provision that will ensure that police have sufficient powers to take effective action, particularly in domestic violence cases.
  Amendment No. 49 is a minor drafting amendment, which is required in order to rectify an omission from the initial draft. Amendment No. 50 clarifies that in Northern Ireland common assault under Section 42, rather than Section 47, of the Offences Against the Persons Act 1861 is to be an arrestable offence. Common assault under Section 42 of the 1861 Act is the Northern Ireland equivalent of common assault under the Criminal Justice Act 1988.
  In view of the generous way in which the noble Baroness, Lady Anelay, treated my previous batch of amendments, I invite her to show me the same generosity. I beg to move.
  On Question, amendment agreed to.
  Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 50:
  Page 5, leave out line 13 and insert—
  "(n) an offence under section 42 of the Offences against the Person Act 1861 (c. 100) (common assault etc)."
  On Question, amendment agreed to.
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 51:
  Page 5, line 13, at end insert—
  "( ) In section 6(3) of the Criminal Law Act 1967 (c. 58) (trial of offences) at end insert ", save that where the jury find him not guilty of the offence of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861 (c. 100) (assault occasioning bodily harm) or of the offence of racially or religiously aggravated assault occasioning actual bodily harm or common assault contrary to section 29(1) of the Crime and Disorder Act 1998 (c. 37) (racially-aggravated assaults), the jury may find him guilty of the offence of common assault notwithstanding that it is a summary offence by virtue of section 39 of the Criminal Justice Act 1988 (c. 33) (evidence of persons under 14 in committal proceedings)."
  The noble Baroness said: Amendment No. 51 is a little different. It is a Christmas tree, but a friendly Christmas tree, if there is such a thing. The objective is to make a non-partisan offer to the Government to resolve a problem highlighted recently in the Court of Appeal by Lord Justice Rose. I am not wedded to the drafting—it is certainly not that of Lord Justice Rose; it is from another source—but it is the principle that matters.
  The briefest explanation that I can give for the problem, before I go into the detail, is that there have been a number of cases where prosecutors and judges have overlooked the necessity of including a specific count of common assault if the jury is to be invited to consider that as an alternative verdict. As a result, convictions for common assault when no specific count was on the indictment have had to be quashed by the Court of Appeal and the defendant has gone scot free.
  The background justification for the amendment is as follows. By virtue of Section 6(3) of the Criminal Law Act 1967, where a person is tried on indictment for any offence except treason or murder and the jury find him not guilty of the offence specifically charged in the indictment, the jury may find him guilty of an alternative offence, if the allegations in the indictment expressly or by implication amount to, or include, an allegation of the alternative offence, provided that the alternative offence falls within the jurisdiction of the court of trial—for example, the Crown Court.
  That has been referred to as the "blue pencil test"— cross out the unproved parts of the allegation and see what proved parts are left. Do the proved parts amount to an alternative offence within the Crown Court's jurisdiction? Examples include robbery, where an alternative of theft is available if the element of force is not proved; and Section 18 GBH with intent to do grievous bodily harm, where a defendant can be convicted of a Section 20 grievous bodily harm offence if the intent is not proved.
  Prior to the Criminal Justice Act 1988, common assault was available as an alternative under Section 6(3) of the CLA 1967, where appropriate. Before the noble Baroness is tempted to say that it was a Conservative government that caused the problem in the first place, of course there can be unintended consequences in any legislation—this, I freely recognise, is one. An example was that common assault was available as an alternative on a count of
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  actual bodily harm because it was an indictable offence. By virtue of Section 39 of the Criminal Justice Act 1988, common assault became a summary-only offence and, accordingly, was no longer an offence within the jurisdiction of the Crown Court. I remember it well because I was sitting as a magistrate at the time.
  By virtue of Section 40 of the Criminal Justice Act 1988 a specific count of common assault— notwithstanding that it is a summary offence—can be included in the indictment if it is founded on the same facts or evidence as a count charging an indictable offence or is part of a series of offences of the same or similar character as a charged indictable offence. In practice, that means that if ABH or racially aggravated ABH is charged, it will also be possible to include a separate count of common assault. So the combined effect of Sections 39 and 40 of the Criminal Justice Act 1988 is that common assault is only available as an alternative offence if a specific count of common assault is included in the indictment. As I said, that has sometimes simply gone wrong.
  The problem was first highlighted in the case of R v. Mearns in 1991. That decision was followed by different constitutions of the Court of Appeal Criminal Division, in particular in R v. Burt and R v. Brownless. Commentators have suggested that there is a basis for arguing that Mearns was wrongly decided.
  A recent example of the problem came before the Court of Appeal in R v. Clifford and was reported in the Times on 27 November 2003. Lord Justice Rose, who gave the judgment of the court, stated that Mearns was binding on the court and could be overturned only by Parliament by legislation, by the House of Lords on appeal from the Court of Appeal, or by a five-judge Court of Appeal. He pointed out that he realised that there were more pressing and important matters to be addressed by all three routes, particularly as no difficulty arose if, in an appropriate case, a count of common assault was added to the indictment—that is, if people along the way got it right.
  Lord Justice Rose was not aware at the time that the ideal opportunity to resolve the problem would arise with this Bill, as it had not at that stage been printed. I am aware that a further appeal is pending to the Court of Appeal where a conviction of common assault was entered by verdict of a jury, when no specific count was included in the indictment.
  I appreciate that it could be said that remedy is in the hands of prosecutors, the human beings who should get the matter right and ensure that, where appropriate, such specific counts of common assault are added to the indictment. However, human nature being what it is, naturally omissions occur sometimes. Mistakes have been made on occasions with the result that defendants who were, in the opinion of the jury, guilty of common assault have necessarily had their appeals allowed. That seems an expensive waste of

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  costs and a denial of justice to the public. We have an ideal opportunity in the Bill to put the matter right, and I offer it to the Government. I beg to move.
  Baroness Scotland of Asthal: I thank the noble Baroness for her generosity in giving us that opportunity. I must say that I am not entirely convinced. She will know that on a number of occasions prosecutors may decide not to add a specific count, because of the temptation that, if there is a lesser charge, the jury may be seduced into thinking that that is the easier option. Nevertheless, I see that there may be some advantage in allowing the jury, provided that it has been properly directed by the judge, automatically to consider the alternative offence of common assault where there is insufficient evidence to convict of a more serious charge.
  I also concede that the amendment might be helpful where the jury was trying an offence of racially or religiously aggravated common assault, and was not satisfied that the aggravating element had been proved, but nevertheless considered that the defendant's behaviour constituted a common assault. That point was well made by the noble Baroness. Because of the force of her comments, I shall certainly take the matter away and consider it, and may return to it on Report. She says, in her generous way. that the amendment is defective as it stands, and I respectfully agree. I may come back with a better answer for her next time, but I by no means guarantee that I shall do so.
  Lord Donaldson of Lymington: I speak only to try to educate myself. Is there an obstacle in the long title, or can we always alter it to cover the matter? I do not think that it covers it.
  Baroness Anelay of St Johns: I sought advice at the Public Bill office and was told that there was no obstacle. As always, I accept its advice. "'Crime" is in the title of the Bill.
  I am grateful to the noble Baroness. Having given an exhaustive explanation, I certainly would not seek to go back over any of it. The matter is one of principle. I accept her point that there may be occasions when the prosecution purposely does not charge common assault, for the reason of not wanting to let the jury think that it can make lesser decisions. Of course, we shall come to such an occasion on the next clause. I thank the noble Baroness for saying that she will consider the amendment. Perhaps we shall return to it on Report. I look forward to hearing the result of that, and beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  4.15 p.m.
  On Question, Whether Clause 7, as amended, shall stand part of the Bill?
  Lord Carlisle of Bucklow: Frankly, is the clause necessary at all? If it is necessary, is this the right Bill in which it should be found? We are dealing here with the general law and saying that, as a result of the
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  addition of the clause, common assault, which never has been an arrestable offence without a warrant, should become one. We must all accept that arresting someone is an important matter. The power to arrest is important, and it is one that we should scrutinise with care.
  I question not only whether the clause should be in the Bill, but why the Government think it necessary to have it at this stage. I think that I am right in saying that arrestable offences are to be found in the schedule to the Police and Criminal Evidence Act 1984. They cover many offences but not common assault, which is not and never has been an arrestable offence. On the other hand, they cover assault occasioning actual bodily harm, so any assault would probably be covered. Further, one can arrest for intent to carry out any arrestable offence. In other words, if the police have reason to believe that someone intends to commit bodily harm, they already have the power to arrest that person without a warrant. I am sure that they do so in many cases.
  We must realise when we propose using the power to arrest without a warrant for the offence of common assault, we are mainly discussing a threat of violence rather than the act of striking, or any violence at all. The Minister will say, and I accept, that domestic violence is a serious matter and that we are trying to cope with it here. But if we read Section 25 of the Police and Criminal Evidence Act 1984, we find the following:
  "The general arrest conditions are … that the constable has reasonable grounds for believing that arrest is necessary to protect a child or other vulnerable person from the relevant person".
  Section 25(2) states:
  "'the relevant person' means any person whom the constable has reasonable grounds to suspect of having committed or having attempted to commit the offence or of being in the course of committing or attempting to commit it".
  So if the constable believes that he has reasonable grounds to suspect the relevant person, in this case, probably a relative of the child, wife or husband, of having committed or attempting to commit an offence—namely, having attempted to strike that person—and if he has reasonable grounds to believe that arrest is necessary to protect the child or other vulnerable person from abuse by the relevant person, the power to arrest already exists under that Act.
  Without taking unnecessary time, I return to my questions: is the Committee wise to make what is a fairly fundamental change by adding the offence of common assault to the list of arrestable offences? If we are, should we at least in some way limit it to what the rest of the Bill is about; or is the Bill not the right place for the provision? Do the police already have the necessary powers to protect the wife, woman or child from abuse without being given the power of arrest— which is itself an important power?
  Baroness Anelay of St Johns: There seems to be some confusion about the propriety of speaking on clause stand part when one has not given notice. I am sure my noble friend is in the same position as I am. Having on previous occasions sought advice on this, I have

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  always been advised that one can speak having not given notice—although, of course, wherever one can, one does so.
  I said all that I had to say about the difficulty of common assault being an arrestable offence when we dealt with the training issue. I do not object to it per se.
  Baroness Farrington of Ribbleton: We sought advice on this issue from the Clerk of the Parliaments. We were given advice and shown the place in the Companion where it indicated that notice should be given. I know that my noble friend will wish to look carefully at the points raised by the noble Lord, Lord Carlisle. She will write to him and perhaps allow other Members of the Committee to see a copy.
  We appear to have received two different pieces of advice. Clearly the matter needs to be sorted out so that everyone knows what is the actual position.
  Baroness Anelay of St Johns: I undertake to speak to the usual channels and to the Clerk of the Parliaments, but I hereby give notice that if that is indeed now the interpretation, I shall have to give clause stand part notice to every single clause in every single Bill. I do not believe that that would be helpful to anyone.
  Lord Borrie: I am not very happy that the noble Lord, Lord Carlisle of Bucklow, has given the full extent of his argument without restraint. He has given his argument in full and no doubt he was looking forward to the Minister responding. In the course of the noble Lord's remarks, I thought to myself that I would like to contribute to the debate, but I take it from what my noble friend Lady Farrington said that that would not be welcome.
  Lord Carlisle of Bucklow: I certainly was not wishing in any way to do anything improper, nor do I believe that I have done. I always understood that in Committee—particularly in Grand Committee—one was always entitled to speak on a Motion of clause stand part. That is what I have done. I was not able to move a Motion, but I was speaking on the clause. I looked to see whether an amendment on which I could hang my remarks had been tabled when I realised that I was too late to bring forward an amendment to leave out Clause 7. Having started the debate, I really cannot see why, if the noble Lord, Lord Borrie, who was occasionally nodding—whether in agreement or otherwise we shall shortly know—wishes to contribute and say something on what I consider to be an important legal issue, he should not be allowed to do so.
  Baroness Farrington of Ribbleton: I was not in any way seeking to inhibit debate or go against the rules. It is just possible—I know it will shock the noble Lord, Lord Carlisle, whom I regard as a friend, to hear me say this—that this Government Whip is wrong. My noble friend will reply and allow all noble Lords to see
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  a copy of the correspondence. I apologise if I am in error in the advice I have given my noble friend. We all need to know where we stand on this.
  Lord Borrie: I do not know whether I may contribute to the debate briefly. If the noble Lord. Lord Carlisle of Bucklow, saw me nodding, it was because I thought that it was absolutely right in principle—not on the technical ground of whether it was in order, I do not claim any knowledge of that— for him to raise the issue of whether something that has never been an arrestable offence should be. and whether a quite significant provision should be introduced in a Bill that ostensibly deals with a rather narrower field—that is, not the law in general but the law relating to domestic violence.
  Having said that, however, I felt that I had heard and read sufficient in the past to realise that there have been many cases where the police have not taken as much note of domestic violence as they would have done of violence in the street. Furthermore, although the police in 2004 are much more up to date in these matters and are taking proper note of domestic violence, there will be some occasions when they are called to a house or arrive at a house for some reason and the only crime that will swiftly go through a constable's mind is common assault. He cannot establish or note anything else. Yet he also sees that there is a need to protect—typically—the child or the woman in the house and wants to arrest. It seems to me that the additional power of arrest which this clause would give to the constable in those circumstances could sometimes be useful. No doubt, it could sometimes be abused by the police. None the less, I think that the clause is useful and deserving of positive thought.
  Lord Donaldson of Lymington: Everyone is having great fun with this procedural point. However, I do not know whether it is said that any particular notice has to be given. If that is not within the rules, then the only error that the noble Lord, Lord Carlisle, made was that, when he first got to his feet, he did not begin with the words, "I hereby give notice".
  Baroness Farrington of Ribbleton: Would the noble and learned Lord like a job as a Whip?
  4.30 p.m.
  Baroness Scotland of Asthal: I rise in trepidation. Although I am perfectly happy to give a response, I do not wish to gain the ire of my Whip. I am entirely in the Committee's hands.
  Perhaps I can reassure the noble Lord, Lord Carlisle, on certain matters. I realise that there is a huge issue as to whether we are casting the net too wide. Other offences are already arrestable. For example, the disturbance of wild birds and possession of wild animals and plants are arrestable offences under the Wildlife and Countryside Act. The mischief that we are discussing here is much more serious. Although the general arrest conditions under Section 25 of PACE will often give a power of arrest for

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  common assault, they will not always do so. This provision will truly give the police an unequivocal power to act in cases of common assault.
  My noble friend Lord Borrie was right when he described the sorts of situations with which we are dealing. We often have a situation in which there is an injunction, the wife says that the person is breaching that injunction and there is a dispute as to whether the person is in breach. On the doorstep, however, the officer clearly sees a common assault take place whether by way of threats, actions or otherwise. We are seeking to enable the police to take immediate and effective action to assist the woman and often the children. We know that when the police can assist immediately, it can have very good results in terms of safety and discouraging the continuance of the behaviour.
  I acknowledge that we are doing something that we have not done before. That is the way in which these matters are dealt with. We have identified a mischief that has not been addressed effectively before, and we are looking for tools with which to do that. Currently, Section 25 of PACE gives a police officer general powers to arrest if there is evidence that common assault has occurred and, as the noble Lord said, he has,
  "reasonable grounds for believing that arrest is necessary to prevent the relevant person … causing physical injury to himself or another person".
  or necessary,
  "to protect a child or other vulnerable person".
  Section 39 of the Criminal Justice Act 1988 makes common assault a summary offence.
  It is not unusual for the alleged offender to have left the scene by the time that the police arrive and the victim may not be visibly injured. But common assault, by which we mean common assault and battery, covers a range of actions from threats of violence and striking to unlawful imprisonment. The police may feel that they need to take action, but may not be sure how to proceed in the circumstances. Where we do not believe that an arrest is necessary under Section 25 of PACE—because the alleged offender had left, although a common assault had taken place—the police would need to obtain an arrest warrant in order to proceed with an arrest.
  The purpose of the clause is to provide the police with a simple way to ensure that the alleged offender is removed from the scene of the incident, and that his immediate return is prevented, where there is no existing order under either the Family Law Act 1996 or the Protection from Harassment Act 1997. Although our focus is on tackling domestic violence, we acknowledge that the clause will have general application. Therefore, this will be of benefit to the police where they are dealing with situations of public disorder, where assaults have taken place in conditions that would not be considered as domestic violence, and where the police would have the same difficulty in identifying whether their general powers of arrest will apply. I hope that that will be sufficient to persuade the
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  noble Lord that these are appropriate steps to take. If we can protect wildlife, perhaps we can protect women and children too.
  Lord Carlisle of Bucklow: Before the Minister completes her remarks, does she agree that really we are talking about balance and where the balance should be drawn? The Minister said that the man—let us assume that it is a man—having threatened or attempted to commit an act of common assault, because that is all it would need, perhaps after a threat on a doorstep or a big domestic row, storms off. At that stage, if the policeman does not believe that there is a need to protect a child or any vulnerable person, is it taking the balance too far to suggest that the policeman should have the power to arrest the man? As I say, it is very difficult to determine where the balance should be drawn.
  One must realise that in going as far as we are in this clause, we are saying that any domestic disagreement in strong language—with threats of "I'll get you'' and things of that nature—could, after both parties have left the scene and perhaps had time to cool down, nevertheless lead to the arrest without warrant of one of the individuals concerned, who, the next morning, might regret bitterly what had happened the night before.
  Baroness Scotland of Asthal: I hope to reassure the noble Lord. Of course, the clause gives discretion. It does not mean that the police have to exercise their discretion to arrest on every occasion. There may be very different histories. For example, sometimes there may be a history of a long series of abuse where the husband or partner does almost a hit and run; he disappears only to come back another day. There might be other occasions when it is the first explosive argument, and any involvement is at the beginning: it all depends.
  The difference is that at the moment the police feel that they do not have the power to act on those occasions when women and, often, children are frightened and concerned. There may be a history of violence; the police may turn up a little too late; and the man may have gone away, having said to the woman, "I will be back". History indicates that it is likely that he will be back. At the moment, the police do not have a power to do anything about that. This gives them a discretion.
  If it is felt right that those who disturb wild birds or are in possession of wild animals and plants—even inanimate objects have protection and, thus, these matters are arrestable—I do not think that it is going too far to say that women and children in a similar situation should be deprived of a similar amount of succour.
  Clause 7, as amended, agreed to.
  The Deputy Chairman of Committees (Lord Lyell): We come to Amendment No. 51A in Clause 8. I understand, from the usual channels, that the Committee would like a break at around 5 p.m. I shall

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  remain mindful of that. If the Committee agrees, perhaps we may take the next group of amendments and see how we proceed.
  Clause 8 [Restraining orders]:
  Baroness Thomas of Walliswood Baroness Thomas of Walliswood moved Amendment No. 51 A:
  Page 5, line 19, after "heard" insert "on the making of an order under this Act"
  The noble Baroness said: In the unfortunate absence of my noble friend Lord Thomas of Gresford—I think that he is at a case in Winchester—I shall move the amendments standing in his name and that of my noble friend Lord McNally. Amendment Nos. 51B and 52A would amend the provision on restraining orders on acquittal, which, as many know, have not been without controversy.
  Amendment No. 51A relates to a separate matter. It would give a person, including someone in whose favour an order will be made, the right to be heard before the order is made. Such a person already has a right when the question is one of altering, amending or discharging an order. Currently, however, there is no provision for the person to be heard before an order is made. It is particularly important, because in criminal proceedings the person in whose favour the order has been made—in almost all cases, the victim—is not a party to the proceedings, which are brought by the CPS and not by that person, and would not otherwise be able to give his or her views on the appropriateness of an order or the terms in which it should be made.
  The meaning of Amendment No. 51B is obvious. It states:
  "Page 5, line 24. after 'offence' insert 'arising out of domestic violence'".
  The object, therefore, is to limit the number of occasions on which orders can be made on acquittal to the single issue of where the order arises from domestic violence.
  I am afraid that I cannot support this suggestion with case law as, no doubt, my noble friend could—he is extremely familiar with the case law. However, one can choose between a broadly drawn Bill or a more narrowly drawn Bill. My noble friend suggests that a more narrowly drawn clause would be better in those circumstances.
  Amendment No. 52A would also amend page 5, line 24, by substituting "concludes" for "considers". The amendment was proposed by Liberty in connection with concerns raised that Clause 8 blurs the distinction between the civil and criminal law. Again, that is a subject on which I am not equipped to give my own opinion. The point is that, in a criminal court, a criminal standard of proof should apply. Knowing my noble friend's brilliance, and knowing that the meaning of the amendment is obvious, rather than attempting to argue the case for the amendment myself, I shall leave it to the noble Baroness to answer. I beg to move.
  Lord Donaldson of Lymington: I am worried about Amendment No. 51A because, in the context of
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  restraining orders—about which I know absolutely nothing—there may be occasions when it is desirable that what I would call an ex parte order should be made. If a man is entitled to be heard, he is undoubtedly entitled to have notice in order that he may be heard. It may be extremely difficult to get hold of the man or woman in question to make certain that he or she is heard. After all, where he really wants to be heard is on his application to have the order set aside. As long as he can make that application more or less straightaway, I see no problem.
  Lord Carlisle of Bueklow: In the absence of the noble Lord, Lord Thomas, I support the noble Baroness, Lady Thomas, who is here rather than in Winchester. If the noble Lord is involved in the case in Winchester that I have heard about, I suspect that he will be there for a rather long time. That is perhaps why we have seen him in the mid-afternoon over the past nine months or so. I may be doing the noble Lord a disservice. If I am, I apologise to him through the noble Baroness, Lady Thomas.
  We seem to be giving judges a new power to make a restraining order even when the outcome of a trial is an acquittal. I do not say that we are not right, but it is important that we look at the burden of proof. I believe that that is the intention behind Amendment No. 52A, which would substitute the word "concludes" for "considers". Perhaps we should look at the normal words of the balance of proof as being satisfied beyond reasonable doubt that it is necessary, or something of that nature.
  While I am on my feet and to save me standing up again—certainly not during the clause stand part debate—let me make a further point. If the power to impose such a restraining order is to lie in the hands of a judge in a case where a person is acquitted, the Committee should perhaps consider whether that power should be a general one that can also be applied to other parties to the issue. That may be covered already. It may not necessarily be the acquitted defendant who needs restraining but the unsuccessful complainant. One may need restraining more than the other and I hope that the power will be there for even-handed use between the parties, should it be necessary.
  Baroness Walmsley: In response to the comment by the noble and learned Lord, Lord Donaldson, although line 19 mentions "any person", my noble friend's concerns in tabling Amendment No. 51A were particularly for the victim. Either the victim or the perpetrator could be heard, but the noble Lord's main concern was for the victim whose personal life would be affected by any such order. He therefore he felt it desirable that victims should be heard.
  Baroness Anelay of St Johns: I agree with the noble and learned Lord, Lord Donaldson, on Amendment No. 51 A. There must be expedition on those matters and an ex parte hearing may be needed. If someone has the power to delay such proceedings until they are aware of them and present, they could continue to do so until it became impossible to have proceedings. I

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  appreciate what the noble and learned Lord says, although I shall be very interested to hear the Minister's response.
  I have just one question on Amendment No. 51B. I can understand entirely why the noble Baroness, Lady Thomas of Walliswood, wants to narrow the scope of the new power. She is right to say that it has been very controversial in some quarters, but by no means all. Opinion seems to be split between those who represent the human rights or legal view and those who represent women's organisations such as Refuge. According to those briefing us, there is a divergence of view on the issue.
  I can understand the view of women's organisations, but if one were to argue that the offence should be narrowed down to anything arising from domestic violence, my goodness, we would need a definition of domestic violence, which is exactly what the noble Baroness, Lady Thomas of Walliswood, was trying to help us with at the beginning of the Bill. It is to her credit that she has led us on the matter. The difficulty is that, although we do not have an acceptable definition, I do not know how much she would then be narrowing the remit of the provision. My noble friend Lord Carlisle of Bucklow referred to that. We will come to the issue of burden of proof in some of my later amendments. It is an important issue that we need to consider.
  A moment or two ago, after I dealt with the technical Lord Justice Rose amendment, the Minister said there was a danger in that scenario and that we could end up with the jury thinking, "Right, we'll get them on something. We will go for a lesser issue". The Family Law Bar Association tells me that there is a similar concern here. It says that if things go wrong, the problem could be most acute in a magistrates' court where a Bench will come to the conclusion that the evidence is insufficient to support a finding of guilt on the criminal standard, but will then be required to consider whether an injunction is satisfied on the civil standard of proof. There may be a temptation for the bench to "fudge" the issue on this. I say that simply in response to the comments of my noble friend Lord Carlisle of Bucklow. I am not trying to pre-empt what we will do with Clause 52.
  In all of this, in introducing a new provision, there is the problem that we could end up with people who have been acquitted of an offence finding themselves hit by the clause because the court decides that it wants to get them on something. That is not what I believe, but that is certainly the concern of many organisations that are briefing us. The Government still have a job to do to be able to sell the new provision as something that will be both fair and effective.
  4.45 p.m.
  Baroness Scotland of Asthal: I commend the noble Baroness, Lady Thomas of Walliswood, on her pithy and elegantly swift introduction of the provisions. I think she need have no embarrassment at all that she went right to the root, without burdening anyone with a trawl of the case law.
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  I hope that I will be able to do what the noble Baroness, Lady Anelay, has asked of me—to set out why the Government think these provisions work as they do; why the points highlighted by the noble Baroness, particularly on behalf of the noble Lords, Lord Thomas of Gresford and Lord McNally, need not be the concerns they fear; and why the worry of the noble and learned Lord, Lord Donaldson, about how they will operate for ex parte orders has been covered. I hope that I will then be able to deal with the issue raised by the noble Lord, Lord Carlisle of Bucklow, about whether we need to be very specific on the burden of proof.
  If I may, I shall do that by tracking through the Government's intention on the amendments. I hope that, for those who will read the Committee's deliberations, how we have arrived at our position will be clear. I can reassure the noble Baroness, Lady Thomas of Walliswood, that I had the noble Lord. Lord Thomas of Gresford, very much in mind when going through these provisions.
  The Government's intention when drafting subsection (2) of Clause 8 was to deal with one of the issues raised in the responses to Safety and Justice— the need for victims to be kept informed when an application is made to vary or terminate a restraining order that is protecting them. As the Committee will know, that has been an issue for many victims who say they feel exposed and abandoned at that stage. As currently drafted, subsection (2) will give any person mentioned in the restraining order a right "to be heard"; that is, to make representations if an application is made to vary or terminate the order. The rules of court will place a duty on the court to inform anyone mentioned in the restraining order of an application to vary or terminate it, so they will be able to exercise their right to be heard. Both parties will therefore be present and able to participate in that application.
  Amendment No. 51 A, to which the noble Baroness, Lady Thomas, spoke, appears to be missing the word "and", but I believe that the intention is to extend the right to be heard to where courts make restraining orders in the first place, while leaving intact the Government's proposal. That is how I interpret it. That would change established procedure in cases where courts make restraining orders on conviction, because in such cases, the court makes its decision as part of the sentencing process and on the basis of the evidence that it has already heard.
  In our plans to allow courts to make restraining orders on acquittal, new Section 5A would permit both the prosecution and the defence to present further evidence that would be admissible in civil proceedings. When the original order is made, the person to be protected by it will almost inevitably be in court for the proceedings and is likely to have been a material witness in the case. The Government are not convinced that a separate right to be heard is needed in such cases, because both parties should be there.
  Amendment No. 52A would replace the word "considers" with "concludes". If I may respectfully say so, I do not believe that that would make much

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  practical difference. The noble Lords, Lord McNally and Lord Thomas of Gresford, may be concerned that the mere act of consideration will give a court the power to make a restraining order, and feel that it is necessary to spell out that the court can make an order only when it concludes from the evidence that one is necessary. I must respectfully disagree; we believe that the current drafting is perfectly clear.
  When deciding whether to make a restraining order, the court will already have found the defendant guilty or not guilty of the offence with which he was charged. Having considered the evidence it has heard and, in the case of an acquittal, any additional evidence that is admissible under the civil standard of proof, the court will then decide whether a restraining order is necessary to protect a person from harassment by the defendant. In deciding to make an order, the court will already have concluded that one is necessary.
  Amendment No. 51B would limit the circumstances in which a restraining order on acquittal could be made to those cases where the offence charged had arisen out of domestic violence. I am aware that there are some concerns that the Government's proposal for restraining orders on acquittal is drawn too widely. For example, a recent article in the Times made that point.
  Our intention is simple: to maximise protection for the victim, while in no way undermining the status of the acquittal. In Clause 8 we propose to extend the availability of restraining orders on conviction to any offence, as we believe that that will offer significant extra protection for domestic violence victims and other victims. As the Committee will be aware, we are proposing to extend the power to make restraining orders to cover acquittals to deal with those cases where there has been clear evidence during the proceedings that the victim needs protection, but insufficient evidence to convict.
  We believe that that is a fair, proportionate and justifiable proposal. To seek to limit its availability to a particular type of case is extremely difficult to justify. It would create a lottery of protection, depending on the circumstances of the case and the relationship between the parties, rather than the need for protection of the victim. Beyond that important point of principle, there is also the practical problem that the amendment depends on a definition of domestic violence, as pointed out by the noble Baroness, Lady Anelay. We have already discussed the merits of that in previous sittings; the Government are clear that a statutory definition is unnecessary.
  The beauty of our proposal is that, because the parties are already in court and the court will have had the advantage of hearing the evidence and seeing how the parties behaved one to another, there may be sufficient evidence to substantiate the non-molestation injunction as a result of the behaviour of the parties, over and above whether the court is satisfied that the offences for which the parties are before the court apply.
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  The noble Lord, Lord Carlisle of Bucklow, makes a good point about whether the power should be general and applicable to any party. I should have thought— but I will consider the matter and write to the noble Lord—that it would be open for the court to make an order in relation to any party present before it and represented, where it is seen to be proper.
  Lord Carlisle of Bucklow: I realise that my remarks would have been more appropriately delivered in speaking to the forthcoming amendment tabled by my noble friend Lady Anelay. I apologise to her if I spoke too early and tried to guess what was in the mind of the noble Lord, Lord Thomas of Gresford. I will fully understand if the Minister answers the points I raised when she replies to the next debate.
  Baroness Scotland of Asthal: That is most kind; the remarks may be more appropriate then. We think that the points of concern raised in the amendments are already encompassed in the current drafting, so the amendments are unnecessary.
  Baroness Thomas of Walliswood: I thank the noble Baroness for that comprehensive answer. I also thank the noble Baroness, Lady Anelay, for her perceptive comments on the need for a definition and whether we should not return to that at a later stage. All I can say is that we will see.
  As I believe we are due to go to listen to a rather important Statement, all I shall do now is thank the noble Baroness for her reply and beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 51B not moved]
  Lord Triesman: I beg to move that the Committee do now adjourn during pleasure until 5.15 p.m.
  Moved accordingly, and on Question, Motion agreed to.
  [The Sitting was suspended from 5 to 5.15 p.m.]
  The Deputy Chairman of Committees (Viscount Allenby of Megiddo): If Amendment No. 52 is agreed to, I shall not be able to call Amendments Nos. 52A and 52B by reason of pre-emption.
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 52:
  Page 5, line 24, leave out from first "it" to "described" in line 26 and insert "is satisfied on the basis of facts proved on a balance of probabilities that it is necessary to make an order to protect a person from harassment by the defendant, make an order prohibiting the defendant from doing any act which would amount to such harassment as"
  The noble Baroness said: In moving Amendment No. 52 I shall speak also to Amendment No. 53 tabled in my name. First, however, I thank the Government for the exceptional procedure by which we have had a brief break in our proceedings. It has been put to me over the past few weeks that all parties find it difficult to concentrate for four hours at a stretch.
  Secondly, in the light of our discussions about giving notice for debates on clause stand part, perhaps I may say, at this stage and only for this Bill, that I have today given notice to the Public Bill Office that we shall make objections to clause stand part for every single remaining clause in the Bill. I do that for two reasons: first, out of courtesy to the rest of the Committee so that when the Marshalled List is produced, noble Lords will know that that has been done; and, secondly, to give the usual channels and the Clerk of the Parliaments an opportunity to discuss what will be the best procedure for us to follow. That will ensure that such notice is given as is compatible with the rights of Back Benchers and Front Benchers to operate effectively.
  I turn now to the amendments. We have already looked at how Clause 8 will extend the circumstances under which a restraining order can be made under the Protection from Harassment Act 1997 following criminal proceedings. Reference has been made to the fact that subsection (3) introduces a new concept of restraining orders being imposed on a person who has been acquitted.
  Amendment No. 52 has been tabled as a result of questions that arose from the briefing meeting kindly arranged by the noble Baroness before proceedings on the Bill commenced. At the meeting the noble Baroness stated that the standard of proof involved here will be the civil standard, on the balance of probabilities. My concern is simply that the present drafting does not make that clear. I appreciate that others may say that the civil standard of proof is not the appropriate one.
  Amendment No. 53 seeks to put two questions to the Government. First, why have they not provided a power like the old "bind-over" which can apply to either party in the case. At the Government briefing it was said that the order could be made against either party, but that does not seem to be made clear in the drafting of this clause. Indeed, I would go further and say that it looks contrary to the intention of the clause. The drafting of paragraphs 48 to 54 of the Explanatory Notes implies throughout that the order can be made only against the defendant. In particular, paragraph 50, referring to Clause 8(2), states that it,
  "gives the victim the right to make representations to the court about the terms of the order. This in turn, along with Rules of Court, will ensure that victims are notified of any application to vary or discharge an order".
  My second question is whether it is the Government's intention to leave the power of the court so wide that any limitation on the person's behaviour could be ordered. Here I refer to the phrase used in page 5, line 26,
  "from doing anything described in the order".
  While I can understand the kind of behaviour to which that might be aimed—to ensure, for example, that a person could be prohibited from coming within a set distance of the family home—what if the prohibition is so draconian that it damages the ability of the person, the acquitted person, to earn their living? Whose interests do the Government intend should be
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  put first when the court makes the order? Will they be those of the acquitted defendant or the alleged victim? I beg to move.
  Lord Campbell of Alloway: I rise briefly to support my noble friend. This provision is far too wide and thus is wholly unacceptable. The words,
  "from doing anything prescribed in the order",
  simply will not do. There is no object in giving descriptions further than those already given by my noble friend to make the point good. I hope that, at the least, the noble Baroness, Lady Scotland, will take this matter back because I have never seen a power made on this kind of basis; that is, to order "anything" to be done.
  Lord Thomas of Gresford: I apologise for not being present when the amendment tabled in the name of my noble friend Lord McNally and myself was called. Put not your faith in princes or South West Trains.
  Clause 8(3) raises a serious argument. As drafted, the subsection will permit an order to be made against a person acquitted of any offence, be that a road traffic offence or any other offence completely unconnected with domestic violence. The basic principle addressed by the amendments tabled by the noble Baroness, Lady Anelay, is the fundamental requirement that a person should know the nature of a case put against him or her and be given an opportunity to answer it. If a person is charged with an offence that has nothing to do with domestic violence and is acquitted of same, is it satisfactory that suddenly he should be faced with an order made against him that will prohibit him from doing "anything" described in the order when the court "considers"—a word I have already attacked in earlier amendments—that it is right to do so in order to protect a person from harassment by the defendant?
  That is totally wrong in principle and is a point I shall address in later amendments. If, in the course of one case, it should arise that there are circumstances where it is proper to make an order under the Protection from Harassment Act 1997, then in a domestic violence case that order should be made in the family court where all the usual safeguards apply; that is, that a person is given notice of the allegations against him and then given the opportunity to address those allegations.
  As the noble Baroness, Lady Anelay, said, the amendments at least introduce the requirement that facts be proved. The order cannot be made unless certain facts that go to the issues of harassment, not the offence of which the defendant was acquitted, must be proved on the balance of probabilities.
  Furthermore, as the noble Baroness points out, the clause as drafted applies to only one party. The binding-over powers that the court already has—they have existed since the 14th century—can be exercised widely in appropriate cases against both parties to a dispute, witnesses and whoever is before the court. This is a limited power in that it refers to the defendant, but an enormously wide power in that it can be made

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  where the allegations are not specifically set out or proved, and where the order can contain anything whatsoever. I support the noble Baroness, Lady Anelay, in these amendments with considerable pleasure.
  Lord Borrie: I wish to comment on the remarks made by the noble Lords, Lord Campbell of Alloway and Lord Thomas of Gresford, before coming to the wording of the amendment.
  The noble Lord, Lord Campbell of Alloway, said that the words at the end of Clause 8(3)(1),
  "prohibiting the defendant from doing anything described in the order",
  were extraordinarily wide. Taken by themselves they certainly are, but I would have thought that some restraint is placed on the court because it must consider that it is "necessary" to make an order to protect a person from harassment. The word "necessary" surely must govern the rest of the provision so that, whatever the restriction on the defendant, the court must consider it necessary in order to protect a person from harassment.
  In response to the noble Lord, Lord Thomas of Gresford, surely as a matter of general common law relating to the rules of natural justice, everyone must have a right to be heard, certainly someone on whom a restraining order is to be made. One can very properly infer from this provision, as in so many, that no court will make a restraining order unless the person on whom the order is to be imposed has the opportunity to speak up about why the order, in both its general and particular form, has been made.
  The noble Baroness, Lady Anelay, made a strong point that, from the wording of both the Explanatory Notes and Clause 8(3)(1), it appears as though we are talking entirely about restraining orders on the defendant. At present, I am not sure how it could be otherwise.
  The noble Baroness's amendment includes the words used to describe the civil burden of proof. I am glad to see their inclusion rather than those relating to the criminal burden of proof, which would put far too much hindrance on the court when seeking to protect someone from harassment by the defendant in circumstances where, admittedly, the defendant has been acquitted. I am not sure whether the amendment adds anything, because for the court to consider it necessary to protect a person from harassment and to make a restraining order, surely it would require what the noble Baroness proposes explicitly in her amendment.
  Lord Renton: Surely we should bear in mind that the introduction of,
  "on a balance of probabilities",
  defines more clearly what the court has to do, compared to merely using "necessary".
  5.30 p.m.
  Baroness Scotland of Asthal: As on so many occasions, my noble friend Lord Borrie has put his finger on the reasons why we feel that the amendments are unnecessary. I agree with his reasoning.
  The restraining orders made under the Protection from Harassment Act 1997 are civil orders, using the civil standard of proof. That will remain so after the changes we are proposing in Clause 8 to allow restraining orders on conviction or acquittal for any offence. The purpose of a restraining order will remain preventive rather than punitive. That is an important distinction. It will be a matter for the courts to consider whether such an order is necessary to protect from harassment, a point made by the noble Lord, Lord Borrie.
  It is unusual in legislation to define the standard of proof that the court should adopt in making its decisions. I heard what the noble Baroness, Lady Anelay, said about new Section 5A(1) of the 1997 Act being too wide, and I acknowledge the support and endorsement for that view from the noble Lords, Lord Campbell of Alloway and Lord Renton. However, the amendment that would prescribe the standard of proof as the balance of probabilities would be unnecessary for the courts; it might also cause confusion.
  As I hope that I made clear at Second Reading, there are cases where even though the court is making a civil order, it might have to apply a higher version of the civil standard in deciding whether past conduct is proved, depending on the nature and severity of the conduct alleged. As Members of the Committee will be aware, sometimes the difference between the civil standard and the criminal standard can be very small. The Government's view is that the courts should have the flexibility to decide on the appropriate standard of proof in relation to any past behaviour, before making the forward-looking decision on whether a protective order is necessary in the particular case before them.
  The amendment would have one other important effect. At the moment, Clause 8 allows the court to make a restraining order that prohibits the defendant from doing anything described in the order. That is the same wording as in the existing Section 5 of the Protection from Harassment Act 1997, which provides for restraining orders on conviction. I hear what the noble Lord, Lord Renton, says about our never having taken such action before, but we did so quite successfully in 1997 and it has been well understood ever since.
  We very much followed the spirit of the 1997 Act, in that the court must consider that it is necessary to make the order to protect the person from harassment by the defendant. The clear purpose of the order is to prevent future harassment, and a court can make an order only if it is satisfied that it is necessary for that purpose. My noble friend Lord Borrie made that point well. That is a significant safeguard for the defendant.
  We are not convinced that we should go further and limit the terms of the order to prevent acts which each amount to harassment. Depending on the particular facts of the case it may be desirable, for example, to

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  prohibit visits to the victim's house or telephone calls. The noble Baroness, Lady Anelay, made that plain. However, not all such visits or calls may themselves amount to harassment within the meaning of the Act, but they may form part of a pattern of behaviour that escalates into harassment. The purpose of the order is to prevent such harassment happening. It would be counterproductive to constrain the terms of the order in the way suggested by the amendment. We have the experience of I997's harassment Act, which seems to have worked well.
  The other amendment in the group would have the effect of allowing the court that makes a restraining order on a defendant following an acquittal to make a restraining order in respect of any person who is before the court at the time that it exercises its power. The noble Baroness is absolutely right when she says that the way in which we have phrased the Bill highlights the defendant's position, not that of the victim. I recognise that there is some concern about the effect of the power in Clause 8 to make restraining orders on acquittal.
  However, as I hope that I made clear at Second Reading, we are not in any way undermining the presumption of innocence or the status of the acquittal. Rather we are trying to avoid the situation where there has been clear evidence during the criminal proceedings that the victim is at risk of harassment, but following an acquittal it is then left to the victim to go to the civil courts to obtain adequate protection.
  As an example, let us suppose that someone is charged with an offence of grievous bodily harm with no alternative charge on the face of the indictment, and found not guilty. However, during the trial, while denying the grievous bodily harm, the defendant accepts that he may have pushed, verbally abused or dealt with the victim otherwise in such a manner. That does not amount to the grievous bodily harm with which he is charged, but certainly there is clear evidence of accepted domestic violence and/or harassment. The court would be in a position to deal with those circumstances.
  As matters stand if that happens, there is often a delay before the victim can get relief. In some cases, the police are so concerned about the victim's safety that they escort the victim from the Crown Court round the corner to do just what the noble Lord, Lord Thomas of Gresford, said. They go through the county court door and get their injunction there, with the whole matter replayed. It is our hope that such a situation may be avoided. We do not expect that the power in Clause 8 will be used often by the courts, but it is a valuable protection none the less. It is important, however, that it is not extended so far that it blurs all distinction between the jurisdiction of the civil and criminal courts.
  Where a prosecution has been brought, there will have been sufficient evidence against the defendant to justify bringing the case to court. It is the defendant's alleged conduct that is under close scrutiny by the court, and it might well be that actions amounting to harassment or violence by the defendant are admitted
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  or proved during the case but are not in themselves sufficient to secure a conviction, as I have just indicated.
  In contrast, a witness to the case—that could include the alleged victim—will not have had legal representation during the case, or the same notice that the conduct will be examined in detail. More importantly, if there was sufficient evidence that a witness or victim had committed an offence, there might be grounds for a prosecution. There are, therefore, fundamental differences between the position of the defendant and the witnesses to the case, which means that it would not be appropriate to extend the power in the way proposed in the amendment.
  Amendment No. 53 is also unclear in its scope because,
  "any person who is before the court",
  has no precise legal meaning. It is unclear whether it relates only to witnesses or ranges more widely to anyone present in the court at the time, such as friends or relations of the parties sitting in the public gallery or indeed the legal representatives. It may tempt some judges too far in terms of the use of the power. To grant a criminal court the power to make civil injunctions with such lack of precision on their scope or aim would be difficult to justify. It would also be an unjustifiable extension of the criminal courts' jurisdiction into that of the civil courts.
  I think that it was the noble Baroness, Lady Anelay, who asked, "What of a bind-over?", but it may have been the noble Lord, Lord Campbell of Alloway. Bind-overs are still available to the court. The court can still bind over anyone, including counsel, of its own motion. It may do so at any time before the conclusion of the criminal proceedings—on withdrawal of the case by the prosecution, on a decision by the prosecution to offer no evidence; on adjournment; or on acquittal by the defendant where it is believed or considered that the person's conduct is such that there might be a breach of the peace in future, whether committed by him or others. These powers are exercisable not by reason of any offence having been committed but as a measure of preventative justice. It would be perfectly possible for a court to bind over the victim or any other witness and deal with the defendant in a different way.
  Where a court contemplates exercising its power against a person who has not been charged with an offence, it should of course ensure that the person concerned understands what the court has in mind and give that person an opportunity to be represented. That was held in Hendon Justices ex parte Roschen in 1973. So we do have the ability to regulate that part of the procedure.
  We shall have to come back to the issue raised by the noble Lord, Lord Carlisle of Bucklow. We have sought to balance the interests of the respective parties in a proportionate and fair way and to enable defendants in these situations to have a clear understanding of what they may face, give them an opportunity to produce evidence as appropriate and for orders to be

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  made where the court feels it is necessary to prevent future harassment. We believe that that will meet the needs of the situation.
  Lord Campbell of Alloway: I listened carefully to the noble Baroness as she explained her support for the clause. She gave as an example a case of where, in the course of the proceedings, there was an admission. I would go along with her if the defendant in the course of evidence admitted the kind of circumstance to which the noble Baroness referred; if he admits it, there would be no objection. However, if he denies it, it would be quite unfair to use what the noble Baroness said was evidence sufficient to bring a case. That cannot be an effective test or safeguard if the man is acquitted—and we are dealing with an acquittal.
  In those circumstances, if a court makes an order which, on the balance of probabilities, it believes is necessary to protect someone—and if, in the process, the order requires him not to live at home, not to visit or call his wife or to leave the area where he has a job, for example—that would be an incredible invasion of that man's privacy and quite beyond what is provided in a bind-over to keep the peace, which would be perfectly satisfactory.
  I believe that, apart from my noble friend's amendment, the drafting of the clause must receive further consideration. It cannot be supported by the argument advanced by the noble Baroness that it should be on the basis of admissions and evidence sufficient to bring the case. That cannot be fair. I would respectfully ask the Minister to reconsider the matter.
  5.45 p.m.
  Lord Renton: Before the noble Baroness replies, and following the comments of my noble friend, I should like to stress what I said earlier. The use of the expression "considers it necessary" seems too vague in the circumstances. The amendment put forward by my noble friend Lady Anelay says,
  "proved on a balance of probabilities that it is necessary".
  Of course, we are not using the burden of proof for conviction—which is beyond reasonable doubt—but working on a form of protection. I should have thought that it is much more necessary to use not merely the word "necessary", but to use the expression, "on a balance of probabilities it is necessary".
  Baroness Scotland of Asthal: In my comments on the variable nature of the balance of probabilities and the burden that has to be discharged dependent on the nature of the facts alleged, I think that I answered as fully as I can the latter point raised by the noble Lord, Lord Renton.
  I turn to the issue raised by the noble Lord, Lord Campbell of Alloway. Of course the court will have two species of evidence: the totality of the evidence heard before the conclusion of the trial; and then an opportunity given to the defendant to call further and other evidence if he or she should so choose in order
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  to establish or gainsay what is alleged against them in terms of the need for future protection. It would be quite wrong to say that the court would have to disregard all the evidence it heard during the trial in coming to its consideration of whether the application for an injunction or the relief sought is proper. We have to look again at the civil burden and ask—for example, if this was a combined court and there was a court room next door—whether they were facts upon which, applying the civil standard, one would be entitled to the relief sought. As I have tried to indicate, this is an attempt to be entirely practical in how protection is given, so that an alleged victim has an opportunity to obtain a court determination quickly, so they can obtain the protection that may be necessary if the court considers it to be so.
  We therefore think this a proportionate and proper way of proceeding. A bind-over may be appropriate in certain circumstances. However, in these circumstances, if the facts are proven to justify a Clause 8 restraining order to protect the future of the parties, we think that this is an appropriate and proportionate action which should be taken.
  Baroness Anelay of St Johns: I am grateful to my noble friends and to the noble Lord, Lord Thomas of Gresford, for supporting my amendments in principle even if the drafting is not too wonderful. I appreciate what the noble Lord, Lord Borrie, said with regard to his construction of the use of "necessary", in that it governs the rest of that subsection. However, I should like to look at that again because I am not totally convinced.
  I start from the premise that I want to be able to support the provisions of the clause. I think that the Government are properly searching for a way of dealing with a very real problem, but in specified circumstances of domestic violence. So I have much sympathy with what the noble Lord, Lord Thomas of Gresford, said about the fact that this is now a very wide power, having arisen from what was perceived to be a serious problem, but in a domestic arena.
  I was struck by the fact that the Minister said that this measure is intended to be preventive, not punitive. I perfectly accept that that is the Government's intention. However, I do not think that the current drafting achieves that objective. I am very sensitive to the briefings we have had from those who are concerned that provisions are being made to curtail the activity of those who have been acquitted. We can all sympathise with what the Government are trying to do, but these people have been acquitted as far as they are concerned. They should be able to walk free. Yet here we see their behaviour circumscribed within private circumstances. A bind-over is made as a matter of keeping the peace and public safety, not private safety.
  I am concerned about this provision. The Minister said that it is unusual to define the standard of proof in legislation. I do not have sufficiently wide experience, but during our consideration last year of the Extradition Bill the Government were kind enough to make clear on the face of that legislation what was

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  the standard of proof. Indeed, we faced a similar situation then to that we have before us now; that is, the line between the civil and criminal law is being smudged or fudged—whichever is the appropriate term. However, we have a duty to ensure that the legislation is as clear as possible, not only for those who are supposed to implement it but also for those who will be subject to it.
  I will want to look again very carefully at the drafting because I may need to return to this point. I shall not necessarily do so with the same form of amendments because I accept the criticism made in particular about the phrase,
  "any person who is before the court".
  It was pointed out over the weekend by someone close to me that that did not represent the most felicitous drafting. However, the serious issue here is to address what should be done to ensure that we do not smudge the line too much between the civil and the criminal law. However, at this point, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendment No. 52ZA, re-tabled as Amendment No. 51B, not moved.]
  [Amendment No. 52A not moved.]
  Lord Thomas of Gresfordmoved Amendment No. 52B:
  Page 5, line 25, leave out "an" and insert "a temporary"
  The noble Lord said: Amendment No. 52B is to be considered with Amendment No. 53A and reverts to a theme I sought to expound at an earlier meeting of the Committee about the need for these orders in domestic violence cases to be dealt with in the civil court. I am concerned that there is a fudging or blurring of the differences between civil and criminal procedure.
  The "bind over" which the magistrates' court or any criminal court can apply is a very well known remedy. Only last Wednesday I was involved in a case of criminal damage where the prosecution offered no evidence. The defendant was found not guilty and was then bound over to keep the peace for some two years. That is a very recent example, citing a case in which I was involved. An order made by a criminal court is rather like a scatter gun in effect; it is not particularly refined. "Keeping the peace" is a broad statement and may not be too helpful to a person who is the victim of domestic violence.
  New Section 5A asks a magistrates' court or a Crown Court—but more generally a magistrates' court—to operate civil procedures and civil rules of evidence. Subsection (2), for example, reads as follows:
  "In proceedings under this section both the prosecution and the defence may lead, as further evidence, any evidence that would be admissible in proceedings for an injunction under section 3".
  That means that in the magistrates' court evidence can be led by either side, but subject to civil procedure rules of evidence. That means that the magistrates, normally more used to dealing with criminal cases although they do have a civil jurisdiction, may not be in a position to appreciate the distinction between civil and criminal rules of evidence.
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  In response to the noble Baroness, Lady Anelay, on the last amendment, the Minister said that one needs to be practical. By way of illustration she referred to the possibility that the victim in a case where a person has been acquitted in a criminal court may be led by the police around to the county court, go in through another door and there make an application for a restraining or other appropriate order—perhaps a non-molestation or occupation order.
  The suggestion behind the Minister's response was that there was something wrong in that. I do not think that there is anything wrong in the civil judge, who generally makes orders under the Protection from Harassment Act, using his experience and knowledge of family matters and the problems that arise with children, husband and wife, and so forth, to deal with the matter. Nor do I think that it is particularly disadvantageous for the procedural safeguards of the civil process to be in place. Those procedural safeguards are the safeguards to which I referred earlier. The noble Lord, Lord Borrie, was good enough to point out that natural justice requires the formulation of allegations and the opportunity of a person to give a defence to those allegations, and so on. The procedural safeguards in the civil process should be used.
  Again, the Minister referred to the fact that the combined court could deal with both sets of issues. There are no combined courts. I know that there is an experiment going on in about four or five courts that sit one day as a domestic court and on another day as a criminal court. But that is not a combined court giving, at one and the same time, civil and criminal jurisdiction to that court.
  The net result of fudging the distinction between criminal and civil proceedings is that one is faced with the vague phrase, as the noble Lord, Lord Renton, said, of a court considering whether it is,
  "necessary to do so to protect a person from harassment",
  and so forth. We are left with vague phrases, which do not import the procedural safeguards. I know that the Minister said that they do, but I do not agree. The matter must be spelt out along the lines of Amendment No. 52B. The vague words are used in the proposed new section because a fudge is going on. It is our view that protection of harassment orders, non-molestation orders or occupation orders should be ordered in the civil court.
  I finally get round to the amendments. If the criminal court thinks it necessary to do something straightaway because there is an imminent danger to a person who is before the court—a person who is the victim of domestic violence—we suggest that at the very least it should be a temporary order. On the making of that temporary order, the criminal court should refer the matter to the appropriate family court for urgent consideration. In our amendments, the instant protection is there, but the appropriate process is used for the making of the order. Those are the purposes behind the amendments. I beg to move.
  Lord Campbell of Alloway: I support Amendments Nos. 52B and 53A for the reasons given. I think that I

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  moved Amendment No. 1 on setting up the integrated court. To save your Lordships' time, I shall say no more. But I am grateful to the noble Lord, Lord Thomas of Gresford, for having supported me on that occasion, in principle. I now support him.
  6 p.m.
  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 matter—that 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.
  Lord Thomas of Gresford: My objection is that it is the civil rules of evidence which are being applied, which are different from the criminal rules of evidence, as the noble Baroness knows.
  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.
  I should also make clear that we do not accept that this is a fudging or that these are vague phrases. That is an unfortunate and inaccurate way of describing what we seek to do under this section.
  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.
  The amendments tabled by the noble Lord would have two effects. First, Amendment No. 52B would make restraining orders made on acquittal have only
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  temporary effect. Amendment No. 53A would require a court making such an order to refer the case to the appropriate family court for urgent consideration.
  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 violence—which is one of the key issues dealt with by the Bill—but 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

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  victims or defendants alike. For all those reasons, we think that the amendments do not do that which noble Lords seek to do. I absolutely know why the noble Lord has proposed the amendments. He says, "If it is temporary, we can sort it out later". In earlier sittings, I think we talked about the need for training, joint working, partnership and all that we are doing to ensure that the right cases go before properly trained members of the Bench, both lay and professional, so that we get the highest quality of decision making. So albeit that I understand why the noble Lord has proposed the amendments, I regret to say that I cannot agree with him that they are necessary or well founded.
  Lord Thomas of Gresford: Orders made under the Criminal Justice and Public Order Act, I think, and certainly under the Protection from Harassment Act—
  Baroness Scotland of Asthal: It was the Crime and Disorder Act 1998.
  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
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  been brought for any offence where there is a danger of someone being harassed. It does not deal necessarily with a domestic situation at all.
  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 section—outside the context of domestic violence, but simply because the court perceives a risk of some form of harassment—and 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.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 53 and 53 A not moved.]
  Clause 8 agreed to.
  Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 54:
  After Clause 8, insert the following new clause—
  "RESTRAINING ORDERS: NORTHERN IRELAND

  (1) In Article 7 of the Protection from Harassment (Northern Ireland) Order 1997 (S.I. 1997/1180 (N.I. 9)) (power to make restraining order where defendant convicted of offence under Article 4 or 6 of that Order), in paragraph (1) omit "under Article 4 or 6".

  (2) After paragraph (4) of that Article insert—

  "(4A) Any person mentioned in the order is entitled to be heard on the hearing of an application under paragraph (4)."

  (3) After that Article insert—

  "7A RESTRAINING ORDERS ON ACQUITTAL

  (1) A court before which a person ("the defendant") is acquitted of an offence may, if it considers it necessary to do so to protect a person from harassment by the defendant, make an order prohibiting the defendant from doing anything described in the order.

  (2) In proceedings under this Article both the prosecution and the defence may lead, as further evidence, any evidence that would be admissible in proceedings for an injunction under Article 5.

  (3) Paragraphs (3) to (6) of Article 7 apply to an order under this Article as they apply to an order under that one.

  (4) Where the Court of Appeal allow an appeal against conviction they may remit the case to the Crown Court to consider whether to proceed under this Article.

  (5) Where—

  (a) a county court allows an appeal against conviction, or

  (b)a case is remitted to the Crown Court under paragraph (4),

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  the reference in paragraph (1) to a court before which a person is acquitted of an offence is to be read as referring to that court.

  (6) A person made subject to an order under this Article has the same right of appeal against the order as if—

  (a) he had been convicted of the offence in question before the court which made the order, and

  (b) the order had been made under Article 7.""

  The noble Baroness said: We have debated at length the provisions that relate to restraining orders. Those orders will give continued protection from harassment to victims in domestic violence cases, even on acquittal.
  The Government believe that victims of domestic violence in Northern Ireland should be afforded the same degree of protection as in England and Wales. That is why we have tabled Amendment No. 54, which would extend the provisions of Article 7 of the Protection from Harassment (Northern Ireland) Order 1997 to allow for restraining orders to be made on acquittal as well as on conviction and would apply these to all offences, not only those under the 1997 order. The provisions replicate for Northern Ireland the provisions of Clause 8, which apply only to England and Wales.
  In deciding to extend the provisions to Northern Ireland, the Government have sought the views of both the Lord Chief Justice for Northern Ireland and the Police Service of Northern Ireland. Both parties have expressed that they are content that the provisions should apply in Northern Ireland. Amendments Nos. 107 and 111 are consequential on Amendment No. 54.
  I do not know whether the amendments fall within the category of the other amendments for Northern Ireland addressed by the noble Baroness. I see that she has indicated that they do not, so I shall not press them today. However, I want to make clear our position in relation to a point raised by the noble Lord, Lord Thomas of Gresford. I shall say it again so that there will be no misunderstanding when we return to the matter. These provisions are similar to the anti-social behaviour orders and football banning orders that can be made either following conviction or following civil proceedings on complaint. So the comments of the noble Lord which sought to make the distinction are not, we feel, well founded.
  If the noble Baroness wishes to indicate her assent, I shall move the amendments. However, if she does not wish to do so, then I shall move them another day. I beg to move.
  6.15 p.m.
  Baroness Anelay of St Johns: I am grateful to the noble Baroness for acknowledging my head signals to convey that these fall within the category of amendments to which, as I gave earlier notice, I cannot consent on this occasion. This category of amendments could be controversial—indeed, they are controversial in the Committee. My concern is that we
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  did not have sufficient opportunity to consult organisations in Northern Ireland on their understanding of what was happening.
  I am more convinced than ever that we are right not to agree to the amendments today, because, when the noble Baroness introduced them, she referred to the importance of protecting domestic violence victims in Northern Ireland. Like the noble Lord, Lord Thomas of Gresford, I initially thought that the clause would only affect domestic violence offences. That is why, during our brief meeting with the Minister, I did not seek to ask questions more broadly. Had we done so, we would have been aware more quickly of the wider remit of the clause. It is certainly clear from the drafting of this amendment and the previous one how wide is the remit. We will need to consult in Northern Ireland and return to this and Clause 8 refreshed on Report.
  Amendment, by leave, withdrawn.
  Clause 9 [Application by prosecution for certain counts to be tried without a jury]:
  Baroness Anelay of St Johnsmoved Amendment No. 55:
  Page 6, line 11, leave out "following three"
  The noble Baroness said: In moving this amendment, I shall speak also to Amendments Nos. 56, 57, 58, 58A, 58B and 58C. Also included in the group are Amendment No. 58ZA, in the name of the noble Lord, Lord Thomas of Gresford, and Amendment No. 58BA, in the name of my noble friend Lord Campbell of Alloway.
  We now reach the Government's proposals to find a way to overcome the problem caused by the decision in the case of Kidd that precluded the practice of sentencing on the basis of specimen counts, where those counts are the only ones proved and/or admitted by a defendant. I note that some organisations, such as Liberty, oppose the proposals altogether. Liberty is not persuaded that the test set out in Clause 9(5)—that it would need to be in the interests of justice for certain counts to be tried without a jury—is ever likely to be met. I will keep that view carefully in mind during our debates.
  I and my honourable friends in another place have already made clear during debates on the Criminal Justice Act that we would look with favour on any sensible resolution of the Kidd problem. It should, however, be noted that at that stage none of us had seen the Government's amendments. We had received a letter from Judge Alan Wilkie QC, a Law Commissioner. That letter was circulated to Oliver Letwin, Simon Hughes, the noble Lords, Lord Thomas of Gresford and Lord Dholakia, my noble friend Lord Hunt of Wirral and me.
  Judge Alan Wilkie's concern was to highlight the view of the Law Commission that its proposals should not be seen in the same contentious light as those then under consideration in the Criminal Justice Bill. He made it clear that:
  "It is not our intention by our scheme to reduce the number of jury trials, or the number of counts on an indictment which will be the subject of jury trial".

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  Our objective is exactly the same as his. Any proposals in the Bill should certainly not be an assault on jury trial; they should provide a sensible way forward by retaining jury trial in cases where there is such a large number of counts that there are too many to be accommodated in a single trial—and, as a consequence, there would now be no jury trial at all. We also need to consider the Government's concern that proposals could lead to a jury trial on such a limited group of counts that the sentence would not be appropriate to reflect the extent or level of offending.
  My amendments, and those of my noble friend Lord Campbell of Alloway, provide the basis for debating whether the Government have chosen the most appropriate solution to the problem caused by Kidd and whether there are other solutions that would be more appropriate. I have divided my amendments into groups on that basis.
  I note that the Law Commission states in its report No. 277 at paragraph 7.6 that,
  "although it [this method of trial] will be available for use in certain cases which would attract the sobriquet of 'serious fraud' and will also be capable of being used in non 'serious' fraud and other cases, it will not be available for use in all cases of 'serious fraud'".
  My objective is to ensure that the Government will not try to introduce through the back door the proposals that were rejected by this House in the Criminal Justice Act.
  Specific undertakings were given by the Home Secretary in another place with regard to the proposals for fraud trials in particular. I believe that the Minister should find it easy to give an answer to my question. Can the Minister give an assurance to members of the Committee that the proposals in this Bill do not undermine or encroach on those undertakings in any regard?
  My amendments are in groups. Amendments Nos. 55, 56 and 57 make it clear that the conditions set out in Clause 9 are conjunctive and not disjunctive. The amendment was prompted by a drafting complaint made by some of my noble friends and people outside the House. The conditions have to be met if an application by the prosecution for part of a trial on indictment in the Crown Court to proceed in the absence of a jury is to be successful. Can the Minister confirm that the Government intend that the conditions should be conjunctive?
  The amendments also introduce a new requirement that all the counts must be of the same type of offence. Does the Minister agree that it would not be acceptable to have dissimilar offences, nor to have offences that were simply in general terms about "dishonesty" or "violence"? The offences need to be closer in reference to each other than that.
  Amendment No. 58 alters the first condition in subsection (3) to probe the meaning of the Government's drafting. They say that the condition is that the number of counts included in the indictment is likely to mean that a trial by jury involving all the counts would be impracticable. I have replaced that by a stronger test—the noble Baroness may say that it
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  does not make any difference—on which to peg my argument; that is, the number of counts is such that the trial would be so unmanageable that it would not be possible to proceed. How strong a condition does the Government intend subsection (3) to be? That question is at the heart of the matter.
  Amendments Nos. 58B and 58C put forward a Law Commission proposal that toughens up the drafting of subsections (8) and (9). At paragraph 7.4 of its report, the Law Commission stated that,
  "the judge would decide the guilt or innocence of the defendant in respect only of offences linked to those upon which the jury has convicted. Those linked offences will have been pre-selected and placed in a schedule attached to the indictment. The schedule would reflect the full extent of alleged offending. The offences in the schedule will be listed, as appropriate, in groups and each group linked with a specified sample count in the indictment".
  That seems appropriate. Can the Minister explain how the provisions of the clause guarantee that that procedure proposed by the Law Commission will take place? I beg to move.
  Lord Thomas of Gresford: My Amendments Nos. 58ZA and 58BA are grouped with these amendments, but they are a pale shadow of those proposed by the noble Baroness, Lady Anelay. She has set out a far better safeguard in her amendments than proposed in my amendments. Since it is no longer possible to choose one particular count as a sample count in the way that we always used to, we accept that, as a matter of practicality, a solution to the problem must be found. What concerns us is that counts will be regarded as sample counts under the Government's proposals when they are not truly so. The definition of what is or is not a sample count requires to be tightened up precisely as it would under the amendments of the noble Baroness, Lady Anelay. I am hesitant in advancing my amendments as I entirely accept hers.
  Lord Campbell of Alloway: On the basis that the clause will stand part in a moment, which I suggest that it should not, I support all the amendments. One has to do something about the problem. The amendments are a step along the road that is very much better and provides a much more acceptable resolution than that proposed in the clause.
  Lord Carlisle of Bucklow: Of course I accept that the case of Kidd has had considerable effect and made it impossible to proceed on specimen trials. However, one wants to stand back a moment and see what is the likely need for the new powers in the clause. Where one has a person charged with numerous offences of petty fraud, it is perfectly apparent that, unless one can use specimen charges, one is unlikely to have either indicted or convicted sufficient numbers on which to give an adequate sentence.
  Does that really apply in cases of such a nature? As the noble and learned Lord, Lord Bingham, suggested in the case of Kidd on assault, one would have thought a situation unlikely in which the number of counts that one had to add made it inappropriate to have one trial without the sentence being able to cover the gravity of

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  the whole. There are likely to be more separate and individual offences on separate occasions, probably all of a fairly serious nature. Therefore, I find it difficult to think that the effect in sexual cases will overburden the jury or overweigh the indictment to the extent that has been suggested in general discussion on these clauses.
  The problems are in areas wider than those of sexual abuse and assaults occasioning actual bodily harm. They are certainly wider than that of rapes, where even if one has a case of multiple rape I have no doubt that the choice of certain of the counts for trial would, on conviction, always give adequate power to the judge to pass the appropriate sentence. Therefore, while not suggesting that Kidd does not lead to problems that need to be addressed, I hope that, as with other clauses, we will be cautious when making major changes in the law that may not be necessary.
  6.30 p.m.
  Baroness Scotland of Asthal: I hope that I can deal relatively succinctly with the issues because I think I can reassure the Committee that the amendments are unnecessary, although I agree with their purport. First, I can tell the noble Baroness that nothing in this part is intended to encroach or encroaches on the undertakings given by my right honourable friend the Home Secretary during the passage of what is now the Criminal Justice Act 2003. Those remain separate and apart.
  The noble Baroness asked some direct questions. I have already dealt with the fact that there is no encroachment on Section 43 territory. On the nature of sentences, sentences would have to be similar—so similar that evidence in the cases tried by the jury including the convictions would be applicable to the non-jury counts.
  If I may, I shall go through each amendment in the hope that I will clarify the issues sufficiently. Amendments Nos. 57 and 58 are concerned with the conditions that must be fulfilled before the court may make an order for the trial of some of the counts in the indictment to be conducted without a jury.
  Amendment No. 57 replaces subsections (3) to (5) with a revised set of conditions that are expressed in what is arguably a simpler way. The only change of substance is the addition of a requirement that the counts should be for,
  "the same or similar offences".
  In fact, that is already a requirement of the indictment rules which would apply to these provisions. Including it here would therefore add nothing. I am happy to give the noble Baroness that assurance, so that she knows that the matter is covered. However, it would not be sufficient to engage the two-stage trial procedure— that the offences were, for example, all burglaries or thefts; rather, it is intended to apply, as the Law Commission proposed, to repeated instances of the same type of behaviour.
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  Amendments Nos. 58 and 58ZA would raise the threshold for an order for non-jury trial by requiring that trial by jury should be not merely "impracticable", which is the present wording, but so unmanageable that,
  "it would not be possible to proceed",
  or that it would "not be possible", which is the wording of Amendment No. 58ZA. Again, I understand what the noble Baroness seeks.
  "Not possible" is on the face of it a sterner test than "impracticable", but it is not clear what the practical impact of such a change would be. It is, I suggest, already fairly clear from the current wording that the number of counts included in the indictment must be such as to render trial by jury on all of them out of the question. The total number of counts in the cases for which we envisage that the procedure would be used is likely to be so great that it will be clear enough where the test has been met.
  Amendment No. 58A would introduce, in respect of the requirement in subsection (4) that some counts should be regarded as samples of others, a test that the judge must have determined at the preparatory hearing that they must be,
  "sufficiently related to the other counts … as to be a sample".
  That seems to us to add little as the existing requirement that a count must be a sample of other counts could hardly be satisfied unless it was related to them. The amendment also requires the judge to identify which counts are related to which sample counts, and Amendment No. 58C provides that non-jury trial of counts in the indictment may proceed only where the sample count has been linked to them.
  The requirement for the judge to identify which counts are related to which does not form part of the clause, but it accurately reflects what we would expect to happen. Clause 9(8) requires the judge, in making an order under subsection (2), to specify which counts are to be tried without a jury, and it is intended that he or she should also make clear to which sample counts— if there are more than one—those counts, or groups of counts, are related. It does not seem necessary to provide for this in primary legislation, although it may be appropriate for rules to cover the point.
  Amendment No. 58B provides that an application under Clause 9(1) can be made only before the defendant has been tried for any of the related counts. If that is designed to prevent ex-post facto applications after a trial has taken place on the basis of a limited indictment, it is superfluous because an application for an order under Clause 9 can be made only at a preparatory hearing. The idea is that at the preparatory hearing, the decision is made about how the trial is to be managed.
  Amendment No. 58BA removes subsection (7). Subsection (7) provides that the steps that might be taken to facilitate trial by jury, to which the court is to have regard in deciding whether to make an order under Clause 9, do not include steps that might lead to the defendant receiving a lower sentence. The provision in subsection (7) is essential, because it will inevitably be true in such cases that jury trial could

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  proceed if the number of counts in the indictment was reduced; the point is that doing so would prevent the clauses from achieving their objective of enabling convicted defendants to be sentenced for the whole range of their offending.
  We therefore think that we understand the exact import of what the noble Baroness has in mind. We think that the current drafting covers those concerns, especially when it is married with the rules that will support it.
  Lord Thomas of Gresford: Perhaps I may respond on Amendments Nos. 58ZA and 58. The feeling behind the amendments is that the use of "impracticable" rather than "not be possible" or "not be possible to proceed" may simply be a cost-saving exercise; and that "impracticable" may mean, "We cannot be bothered to spend the money and use the court time", whereas "not be possible to proceed" means something different. There is significance in that. If the Minister can give us an assurance that questions of cost do not come into consideration, I shall be happy; if they are the basis of the use of "impracticable", I shall be extremely unhappy.
  Baroness Scotland of Asthal: Let me make it absolutely plain that this is not a cost-saving exercise. The noble Lord will know from his involvement in cases where there is a large number of offences, prior to Kidd, that we have been able to take a sample of each species, as it were. For instance, in a case involving images taken from a computer, there may be 10 different types of images but thousands of images taken.
  What may be envisaged is that the 10 species—one of each sample—may be on the indictment, so that the court can test with a jury whether it is satisfied that the issues are made out. The samples would then be a proper representative of the other counts that follow. That makes the trial manageable, because one can identify the extent of the culpability in a way that is comprehensive—that enables the jury to have its say— but that puts off until the second stage the volume of offences.
  It would be impracticable, if not impossible—and, we would argue, probably unnecessary—to have a jury trial on the possibly thousands of similar cases that would fall within the different categories. Increasingly, there are repeat sample counts, but there must be a clear determination by the jury whether it thinks that the fundamental issues on each type of offence are or are not made out. That is what we are trying to catch.
  So will it be cheaper to have one trial with 10 counts than a series of trials dealing with 97,000 cases? Of course it will. But that will not be a cost-cutting exercise, although costs may be saved by not holding those trials. I hope that that satisfies the noble Lord.
  Lord Thomas of Gresford: I am most grateful for that assurance, which satisfies me. Further to the Minister's remarks, can she confirm that a sample count is a count where all the other counts of which it is a sample could amount to similar fact, for the
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  purposes of a trial? That would at least place some limit on what is meant by a sample case. That is the usual situation with a sample count. Often, a sample count is taken but all the evidence relating to a course of conduct is introduced to prove that particular count. If we can confine a sample count to a situation where all the other counts are admissible on the similar fact principle, I should be grateful. Can the Minister give that assurance?
  Baroness Scotland of Asthal: I am tempted to say yes, but the noble Lord and I know that the case law that clarifies what does or does not constitute similar fact has grown. If I say yes, as of today's date, 1 February, I think—no, 2 February, 2003; no, 2004. I think I am a year and a day behind.
  Lord Campbell of Alloway: It is getting late.
  Baroness Scotland of Asthal: The noble Lord is quite right; it is getting late, and I am getting older by the second.
  That is why I am uncomfortable about saying an unequivocal yes. We think that the current provision and what I said sufficiently clarifies the position to make plain that we are talking about similar offences, not using the provision as anything other than a sample. It may be unwise to limit it to similar fact only, because I am sure that at some stage, when there is a case under Pepper v Hart, people will say, "The noble Baroness surely meant similar fact as was determined by the jurisprudence that prevailed on this day; it does not include all the jurisprudence that has flowed thereafter". On a Pepper v Hart basis, I do include any such future developments.
  Lord Thomas of Gresford: It is always a pleasure to hear the noble Baroness say, "I do". Perhaps we can reconsider the point. It is important. It would not necessarily limit the position to the law today. If the law relating to similar fact is altered in future, what is today not a sample count could become one. Similar fact is rather a good test to determine exactly what order should be applied for and what order should be made.
  Baroness Scotland of Asthal: I will certainly consider the matter. I may return with a similar response but more arguments.
  Baroness Anelay of St Johns: I am grateful for the support of the noble Lord, Lord Thomas of Gresford, and my noble friends Lord Campbell of Alloway and Lord Carlisle of Bucklow for the objective of the amendments. I shall be brief on the various points, because it is clear that we will need to return to them constructively to ensure that we achieve our common objective.
  On sample counts, I am grateful for the Minister's assurances about the definition of same or similar being covered by indictment rules. I will not say that that is a reminder to me, because it is new to me—this is not my field of operation. I will need carefully to

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  consider the definition of sample counts, because the Law Commission was careful in its handling of the definition, and we must be equally careful.
  I am grateful to the Minister for her outright assurance that the provisions for jury trials in no way encroach on the previous assurances given regarding Section 43 of the Criminal Justice Act 2003. However, I shall have to return to the issue of impracticability. I heard with great pleasure the Minister's examples of what could and could not be impracticable and ensuring that we are not considering a cost-saving exercise, because we all want to ensure that trials that would not take place at present do so.
  I was interested to note that when the Minister talked about definitions of sample counts, she earlier said that they were to be repeated instances of the same type of behaviour; and referred later to the downloading of computer images. I refer to that at this point only to give advance warning of what I shall say when speaking to Amendment No. 61 A. The Minister has repeatedly drawn our attention to the appalling crime of commissioning the downloading of images of child pornography. That immediately elicits the support of all noble Lords for the Government. However, on reading the report from the Law Commission, I note that it states specifically that that is the kind of offence for which the multiple offending provisions set out in Clauses 9 to 12 are not necessary.
  Rather, you should have what I have set out in Amendment No. 61A: compound allegations. I give notice of the amendment to aid those who brief the noble Baroness.
  6.45 p.m.
  Baroness Scotland of Asthal: Before the noble Baroness withdraws her amendment, when she refers to "compound allegations" I should say that there is a real argument about whether such cases would not be better dealt with on a compound basis. No doubt we shall return to the matter, but for the moment this could be a route.
  Baroness Anelay of St Johns: I am grateful for that indication and I await with interest our debate. For the moment, I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  [Amendments Nos. 56 to 58BA not moved.]
  The Deputy Chairman of Committees (The Countess of Mar): The noble Lord, Lord Campbell of Alloway, has given notice of his intention to oppose the Motion that Clause 9 shall stand part of the Bill. He has asked to speak at the same time to his opposition to the Motion that Clauses 10,11 and 12 shall stand part, and this has been agreed. Noble Lords should be aware that we shall debate whether Clauses 9 to 12 shall stand part of the Bill.
  On Question, Whether Clause 9 shall stand part of the Bill?
  Lord Campbell of Alloway: I am much obliged to the noble Baroness and to my noble friend for their
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  agreement. Basically, the reason why I am opposing Clause 9 is set out in Amendment No. 61. It is an attempt to solve the problem in a simple way; that is, resorting to an extension of existing procedures. However, what is set out in Clauses 9, 10, 11 and 12 is a very complex approach to the problem. There are provisions for jury trials, non-jury trials and so forth. Without pre-empting the merits of my own amendment, to which I hope that I shall have leave to speak on another occasion, perhaps I may withdraw my Motion to oppose that Clause 9 should stand part of the Bill. Perhaps I may also register my intention not to oppose the Motion that Clauses 10 to 12 should stand part. I wished formally to make the point here.
  Clause 9 agreed to.
  Clause 10 agreed to.
  Clause 11 [Effect of order under section 9(2)]:
  [Amendment No. 58C not moved.]
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 59:
  Page 8, line 6, at end insert—
  "(7) Nothing in this Part permits the prosecution to proceed with a new prosecution on linked allegations on the basis that the trial judge considers that an acquittal by a jury was perverse or erroneous."
  The noble Baroness said: The amendment moves on to another nuance of the provisions of the multiple offending clauses. Its objective is to ask the Minister to explain how the Government's proposals overcome the concern expressed by the Law Commission in paragraph 7.11 of its report. It points out that, following an acquittal on a sample count, there would be a presumption in favour of a directed acquittal on the linked counts. It states that there should be a presumption rather than an invariable rule because it is possible in certain cases that an acquittal on a sample count may be returned without a true investigation of the facts. It gives some practical examples of that with which I shall not weary the Committee.
  The Law Commission goes on to state that the trial judge should not be permitted to allow the prosecution to proceed with a new prosecution on linked allegations on the basis that he or she considers that the acquittal by the jury was either perverse or erroneous. It then states, in emboldened print, that express provision should be made to this effect. My amendment makes that express provision and simply asks the Government why they decided not to follow such a clear indication by the Law Commission. I beg to move.
  Lord Campbell of Alloway: I support the amendment if the clause is to stand part. In this context, I support the sample count being identified with the concept of a similar fact situation. I see no difficulty. The law starts with a chap wearing feathers—it always does—but it will develop within the same mode relating to the concept of a sample count. I see no worry about the law developing; I see

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  every advantage, evidentially and otherwise. As the noble Lord, Lord Thomas of Gresford, suggested, it should relate to the concept of similar fact.
  Lord Thomas of Gresford: One would hope that a trial judge would not demand that the prosecution proceed with linked allegations following an acquittal. On the other hand, even today, trial judges cannot sometimes resist the temptation to indicate their displeasure. I heard recently of a judge who demands that, following an acquittal, the convictions of the acquitted person are read to the jury before he discharges them, indicating thereby his displeasure at their result. I consider that to be shocking behaviour. It takes us back 30, 40 or 50 years and I hope that it is not repeated. A safeguard of this nature is desirable in the Bill.
  Baroness Scotland of Asthal: I can reassure noble Lords that nothing in the clauses as currently drafted is intended to permit, or could be interpreted as permitting, a prosecution to take place in these circumstances. It is clear that a non-jury trial can proceed only where the jury has convicted the defendant of a relevant sample count. If there is an acquittal the presumption would be that the judge would direct the jury to return a verdict of not guilty of the related counts still on the indictment.
  The Law Commission recommended that it should be open to the Crown, as it is now in such circumstances, to try to persuade the judge that the outstanding counts could or should be ordered to lie on the file. That would be done only in exceptional circumstances. The example cited by the Law Commission is where the acquittal was due to the absence through ill health of a leading prosecution witness. We have concluded, however, that it would be better not to make specific provision for what should happen to the remaining counts but to rely on the established law. It is clear that a directed acquittal will normally be the right outcome. However, there may be the odd case where the Crown chooses to ask that a count should lie on the file, as it already has the power to do. The Law Commission accepted that it should retain such a power.
  Our view is that we do not need to make a specific provision about the matter in the Bill. It follows from that decision about ordering counts to lie on the file that there is no need to give effect to the Law Commission's recommendation that a judge should not be permitted to order a count to lie on the file where he considered the acquittal to be perverse or erroneous. That delivers what the Law Commission wanted to see in an appropriate way. I hope that I have been able to reassure members of the Committee through the unequivocal way in which I have expressed the Government's view.
  Baroness Anelay of St Johns: I am grateful to the noble Lord, Lord Thomas of Gresford, for his support. I was trying to ensure a desirable safeguard, as he called it. However, I hear very clearly the Minister's assurance that it would be right to have a directed acquittal as a normal outcome. I understand
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  exactly what she says—that in some circumstances there would still be a requirement that the CPS should be able to leave matters to lie on the file—but that is normal in current jury trials. However, we are now going into a judge-alone trial and we need to consider how much of a matter of practice that might become.
  The Law Commission refers to the example cited by the noble Baroness where, due to ill health, one might have a trial limp on in the absence of a witness, which is not very satisfactory in terms of hearing the evidence. I understand that. I am grateful to her.
  Lord Carlisle of Bucklow: Did my noble friend understand the Minister to say that it would be normal that, if the person had been acquitted on the selected count, the judge would direct an acquittal on the rest of the counts of that nature? Is she satisfied that that is in the Bill at the moment? If so, perhaps she could persuade the Minister to tell us where that is in the Bill.
  Lord Thomas of Gresford: I seek clarification. Let us suppose that an application were made for a count to lie on the file and, for some reason, the prosecution wished to proceed with that count at some later stage. I take it that the Minister can assure us that the ordinary procedure would apply and that it would not be subject at that stage to a trial by judge alone.
  Baroness Anelay of St Johns: In response to my noble friend, I am still not convinced that the information that we seek is clearly in the Bill, which is why I need to come back to the matter later. However, I want to be as open as I can in accepting the assurances of the Minister. When we go into such uncharted waters, although we are all trying to achieve the same good outcome, we need to be sure that along the way we do not let things slide through lack of proper scrutiny. I assure my noble friend that I will return to the matter. I also heard what the Minister said about rules of court—that there are some occasions when one needs something on the face of the Bill which cannot be left to rules of court. We shall have to consider that issue. I beg leave to withdraw the amendment.
  7 p.m.
  Baroness Scotland of Asthal: Before the noble Baroness does that, perhaps I may reassure the noble Lord, Lord Thomas of Gresford, and answer the points that he made.
  We are quite unequivocal that, before one can move on to deal with the second stage of the trial, one needs a conviction. So if there was no conviction of that sample but the court had exceptionally permitted to lie on the file—because of, for example, the illness of a witness who may become well—we would expect there to be a jury trial on a new sample count before one could then move on to the remainder. That is what we would expect to happen. The usual rules in regard to reactivating offences that lie on the file would also apply.
  Baroness Anelay of St Johns: I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 11 agreed to.
  Clause 12 [Rules of court]:
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 60:
  Page 8. line 8, leave out "may" and insert "shall"
  The noble Baroness said: Paragraph 60 of the Explanatory Notes states that Clause 10,
  "prescribes the procedure for determining applications for part of a trial to proceed in the absence of a jury under clause 9. This provision is likely to be supplemented by rules of court, especially those provided for in clause 12".
  The intriguing issue is that the Explanatory Notes state that the provision is "likely" to be supplemented. The noble Baroness will of course be expecting the usual question—that is, can she explain the circumstances in which the Government would envisage that rules of court would not be made? I beg to move.
  Baroness Scotland of Asthal: I accept the spirit in which the question is teasingly asked. Clause 12 provides, as such provisions usually do, that rules of court may make such provision as appears necessary. In practice, rules will need to be made, but I am not persuaded that there is any advantage in departing from the customary formula. But, if it reassures the noble Baroness, I cannot at the moment think of any circumstances in which rules would not be made in accordance with the normal practice.
  Baroness Anelay of St Johns: I am grateful. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Clause 12 agreed to.
  Lord Campbell of AllowayI had intended to move Amendment No. 61, but I wonder whether, at this hour, the Committee wishes me to do so. If it does, I shall.
  Baroness Scotland of Asthal: I may have misunderstood the noble Lord, but I thought that he indicated earlier that he was not minded to move the amendment at this stage. Otherwise, we have another half an hour.
  Lord Campbell of Alloway: I would be grateful if the Committee would allow me to move the amendment on the next occasion.
  Baroness Anelay of St Johns: There may be some misunderstanding all round. I had assumed that my noble friend was letting go the clause stand part objections so that he could turn his full and undivided attention to the amendment and that we would deal with it today. I understand from the look on the face of the Government Whip that he anticipated that we would continue until 7.30 p.m. If my noble friend were not to speak to his amendment today it could not be dealt with until Report. I believe that is the
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  interpretation put on it by the Government. But, as always, it is up to my noble friend to decide what he wants to do.
  Lord Campbell of Alloway: I am extremely grateful. If I have to speak to it today, I was under a misapprehension.
  Baroness Anelay of St Johns: I hesitate to interrupt my noble friend, but would he prefer to move the amendment on Report?
  Lord Campbell of Alloway: No. I prefer to move it at the next sitting of the Grand Committee, if I am allowed to.
  Lord Davies of Oldham: I am grateful to the noble Baroness, Lady Anelay, for a precise and accurate summary of the position we are in. If the noble Lord wishes to move the amendment, he needs to do so now. He can of course reserve his right to move it on Report, but if he wants to move it in Committee, the time to do so is now. We have about 30 minutes before we adjourn.
  Lord Campbell of Alloway Lord Campbell of Alloway moved Amendment No. 61:
  After Clause 12, insert the following new clause—
  "MULTI-COUNT INDICTMENTS

  (1) A procedure to reduce complexity and length of trial on multi-count indictments in the interests of due and expeditious dispensation of justice on implementation of these provisions shall be introduced by Rules of Court to ensure that appropriate directions as to the form of indictment and on other matters arising on the depositions shall be given by a judge of the Crown Court at a pre-trial hearing, subject to review by the trial judge before arraignment.

  (2) Before the pre-trial hearing, a judge of the Crown Court shall have considered whether on the depositions the form of indictment is appropriate in the interests of due and expeditious dispensation of justice, and whether certain directions such as set out in subsection (3) should be given, and if he is of such provisional opinion shall so inform the prosecution and the defence in writing when a date is given for the pre-trial hearing.

  (3) At the pre-trial hearing, or at the trial before arraignment, the judge having entertained representations from the prosecution and the defence may give such directions which may include—

  (a) severance of certain counts with directions for trial on such other counts;

  (b) designation of sample counts with directions that other counts lie on the file;

  (c) election as to whether to proceed on substantive counts or on conspiracy counts which replicate the substance;

  (d) provision of particulars of any count;

  (e) amendment of indictment;

  (f) such other directions as may be appropriate in the interests of due and expeditious dispensation of justice.

  (4) A panel of judges designated to have conduct of pre-trial hearings shall be established by the Lord Chancellor in consultation with the Lord Chief Justice."

  The noble Lord said: I am much obliged to the Committee. This is a procedural provision of general application throughout the law and is not related exclusively to domestic violence. One must be extremely careful, when considering a provision of general application, to get it right. One accepts, of course, that something must be done about sample

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  counts, but the procedure proposed in Clauses 9 to 11 is extremely complex and cumbersome— unnecessarily so.
  I have sought, in this probing amendment, to amend the existing procedures to deal with the problem of multi-count indictments and the decision about not taking into account matters left on the file. It would introduce a procedure to reduce complexity and length of trial on a multi-count indictment, in the interests of expedition and dispensation of justice. The provisions of this amendment would be introduced by rules of court to ensure that appropriate directions as to the form of indictment and on other matters arising on the depositions should be given by a judge of the Crown Court at a pre-trial hearing. Pre-trial hearings take place at present. It is right to use that machinery for that purpose, subject to review by the trial judge.
  Using the pre-trial hearing, a judge of the Crown Court must consider whether on the depositions the form of indictment is appropriate in the interests of due and expeditious dispensation of justice, and whether certain directions should be given. The proposed new clause provides that, if he is of that opinion, he shall so inform the prosecution and the defence in writing when a date is given for the pre-trial hearing.
  This is a novel proposal, extending the extant procedure. At the pre-trial hearing, or at the trial before arraignment, directions given may include those given at present on a pre-trial hearing: severance of certain counts with directions for trial on other counts, and designation of sample counts with directions that other counts lie on the file, which is accepted as a procedure by the commission. Another possible direction is election as to whether to proceed on substantive counts or on conspiracy counts which replicate the substance. That can save a lot of time and do away with the length and complexity of jury trial. The judge can also order the provision of particulars; amendments to the indictment; or give other directions. Finally, the panel could be appointed by the Lord Chancellor or judges designated to conduct the hearings.
  That is the proposition which I have moved. I am grateful for having been allowed to do so. I hope that Members of the Committee may consider that, at all events, in principle, this is a simpler and more appropriate way to proceed, by using extant procedure and extending it to meet the circumstance.
  Of course, it will not appeal to the noble Baroness, Lady Scotland, but there it is. I would suggest that it is a matter worthy of consideration as a fairly simple and straightforward means of resolution of the problem that has to be faced. I beg to move.
  Lord Carlisle of Bucklow: Perhaps I may support my noble friend Lord Campbell on what he said at the beginning of his remarks. It is something that has been disturbing me, as I said earlier—on Clause 6, I think. In a Bill described as the Domestic Violence, Crime and Victims Bill, we are inserting clauses that go far wider than domestic violence and affect and change the whole basic law in certain areas of the country.
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  This is another classic example where, to deal with the problem of Kidd, which I accept exists, we are using a domestic violence Bill to answer the problem of Kidd, when, in fact, the Law Commission says that it is really fraud cases that give it concern.
  I have now found the quotation that I could not find when I was last on my feet. Paragraph 2.9 of the Law Commission report, dealing with the case of Kidd and the comments made by the noble and learned Lord, Lord Bingham, states:
  "The logic and correctness in principle of this decision"—
  that is, the earlier decision—
  "cannot be faulted and we do not seek to do so".
  That is, of course, the decision that we cannot sentence on offences for which a person has not been convicted or has asked to be taken into consideration. It continues:
  "However, at a stroke it created major problems for dealing with much high volume offending. Lord Bingham pointed out that: Prosecution authorities will wish, in the light of this decision and the Reg. v. Clark, to include more counts in some indictments. We do not think this need be unduly burdensome or render the trial unmanageable. The indictment in Reg. v. Kidd—
  that was a case of sexual offences—
  "provides a convenient example. It contained 18 counts alleging abuse of eight different girls. Most of the counts related to [a day during] a period in one or two calendar years".
  That was what the noble and learned Lord, Lord Bingham, said. In paragraph 2.10 of the report, the Law Commission states:
  "While this is unlikely to create an insurmountable problem in sexual offence cases, the decision creates obvious problems in cases of multiple theft and deception where the total sum involved is highly relevant to sentence. In such cases, the decision of Kidd"—
  and then it deals with that. In other words, the Law Commission says that the problem is not so much in the area of domestic violence. The problem is mainly to be found in the area of fraud. We must be careful that we do not insert into the Bill matters which should be in a wider criminal justice Bill and which do not directly involve the issues in this Bill.
  7.15 p.m.
  Baroness Anelay of St Johns: I am grateful to my noble friend Lord Campbell for tabling the amendment. He was the first of us to come forward with the proposal that we should be able to explore alternative solutions to the problem of Kidd. He has brought his considerable experience and expertise over many years at the Bar and as a judge to bear on the amendment. As he says, it provides a simpler alternative.
  As my noble friend Lord Carlisle said, my noble friend Lord Campbell also directs our attention very properly to the fact that the Bill goes far broader than domestic violence. It is a Domestic Violence, Crime and Victims Bill, so no doubt the Minister will say, "The matter is within the title; we've told you it's about crime. Crime covers just about everything, so you've been warned. We could 'Christmas-tree' it until kingdom come if we wanted to". Indeed, we know that

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  the Government possibly plan to do some "Christmas-treeing" if the consultation on compensation for victims goes the way in which they anticipate. My noble friends were right to direct us to the broad application of the Bill. My noble friend Lord Carlisle may have more to say on the Christmas tree than on almost anything else in the Bill, if and when we see the part of it to which he has a deep objection.
  My noble friend Lord Campbell made it clear that he is trying to make very good use of the pre-trial hearing. That is a very interesting way to direct our attention. I shall be interested to hear how the Minister responds on that, as it is a relatively new development and has been lauded as trying to make the system more efficient. I am not so sure whether all practitioners quite believe that all the time.
  The real question has to be whether the Government considered a proposal such as that put forward by my noble friend. I would have hoped that they did before deciding to go down the avenue that they chose. If they considered his solution, why did they reject it? What were their reasons? If they did not, will they do so now?
  Lord Renton: When the then Criminal Justice Bill was before us last Session, I supported the Government on the proposition that in fraud cases the defence had the right either to apply to or agree with the court to dispense with the jury for the rest of the case. However, it worries me that this Bill deals with a far wider sphere in which juries can be dispensed with. Also, it is a bit too vague, so I very much support what my noble friends have said. I hope that the Minister will realise that the matter is very important. She should keep an open mind about it at the moment. She needs to make the provisions of the Bill more precise.
  Baroness Scotland of Asthal: I really want to assure the noble Lord, Lord Campbell of Alloway, that the problem is not that the provisions would not attract me. However, if one looks at Kidd and how it was decided, one sees that the old way of dealing with such cases—quite frankly, it was very practical and solicitous—did not attract the Court of Appeal. That is the reality of our position as a result of Kidd. Although it has impeccable logic in terms of the legal construct that it propounds, it has presented us all with some practical difficulties.
  What I shall say in answer to the noble Baroness is this. Was this type of approach considered? Yes, it was. Was it disregarded for falling foul of similar objections to that which were evidenced in Kidd? The answer to that is also yes. Can we reasonably anticipate that it will find favour with the courts? The answer is no. Therefore we have to think about what will find favour, and that is why the Law Commission spent a considerable time crafting the scheme we have set out.
  Let me say at once that I do not think this clause would be of much assistance in the kind of case for which Clauses 9 to 12 have been designed. We are concerned here with offending conduct which is repeated so many times that there are far too many
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  Individual offences to be accommodated in a single jury trial. This kind of offending would once have been dealt with by trying a defendant on "specimen counts" and, where there was a conviction, sentencing for a wider range of offending.
  The kind of scheme put forward by the noble Lord, Lord Campbell of Alloway, is very similar to that which we used to have. Perhaps, quite naturally, it is attractive to me as a practitioner familiar with that type of regime, but in practice it has implicitly been disapproved of in Kidd and Others on the ground that it involved sentencing an offender for offences of which he had not been convicted, had not pleaded guilty to, and had not agreed to have taken into consideration. This decision creates a particular problem in cases such as multiple theft and multiple fraud.
  I should say to the noble Lord, Lord Carlisle of Bucklow, as foreshadowed by the noble Baroness, Lady Anelay, that the Long Title of the Bill includes an opportunity to deal with this matter. That was obviously evidenced by the noble Baroness when she introduced her provisions in relation to common assault. She would have said to me then that she had taken advice and it could be included. We need to grapple with the fact that this is a perfectly proper place. To that end, when this matter was considered during the passage of the criminal justice Bill it was thought that if it did not go through in that Bill, it would find a new and soon-to-arrive vehicle on which it could hitch a ride.
  The clause moved by the noble Lord, Lord Campbell of Alloway, unfortunately would not solve any of the problems with which we are now faced as a result of Kidd: the problems of manageability, cost and sentencing which arise in cases of this kind remain. Where there are dozens, or possibly hundreds, of counts, severance is basically of no use. The type of sample counts as provided for in subsection (3)(b) will no longer work, and conspiracy may not be relevant.
  As much as I would have loved to have been able to say yes to the noble Lord, Lord Campbell of Alloway, as a practical pragmatist, I have to say no because although this proposal may persuade me, I doubt whether it would find favour with the Court of Appeal, which has already expressed its view fairly unequivocally.
  Lord Campbell of Alloway: I thank all noble Lords who have spoken, in particular my noble friends Lady Anelay and Lord Carlisle, and most of all the noble Baroness, Lady Scotland, who I knew would not be able to accept the amendment.
  But the Minister is wrong about her cardinal point that the amendment would run into trouble and not in effect give credence to Kidd. This is not the time of day or night to begin that argument in any depth, but I do not accept for one moment that that is the situation. Indeed, it was crafted to deal with it precisely in the way identified by the noble Baroness—and that was the way in which matters were run in the days of the assize.

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  I make those two points, thank everyone who has spoken and beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Baroness Anelay of St Johns Baroness Anelay of St Johns moved Amendment No. 61A:
  After Clause 12, insert the following new clause—
  COMPOUND ALLEGATIONS

  (1) The Crown Court Rule Committee shall make rules of court under section 84 of the Supreme Court 1981 (c. 54) (power to make rules of court) to make provision for the trial of compound allegations and, in particular, the rules shall provide—

  (a) a definition of "continuous activity" suitable to be tried as a compound allegation;

  (b) a procedure for informing the sentencer in the Crown Court of the true extent of the guilt of a defendant who is found guilty by the jury of the compound allegation.

  (2) The definition referred to in subsection (l)(a) shall include the same conduct occurring on series of separate occasions or the same repeated conduct which, looked at in the round, may properly be regarded as one activity.

  (3) The procedure referred to in subsection (1)(b) shall provide that the procedure may only be applied—

  (a) where the allegation involves—

  (i) two or more similar offences;

  (ii) connected by time and place of commission or common purpose (typically, the same act committed against the same victim), so that;

  (iii) they can fairly be recognised as forming part of the same transaction or criminal enterprise; and

  (iv) having regard to the allegations made and the defence put forward that, save for particular marginal issues, it may fairly be said to be an all or nothing case; and

  (b) where the case has been identified at a preparatory hearing as appropriate for the use of a compound allegation.

  (4) The procedure referred to in subsection (l)(b) shall include provision that—

  (a) in order to convict of the count containing the compound allegation, all (or at least 10) of the jury must agree that they are sure that the defendant committed the alleged offending on at least one (the same) occasion;

  (b) in order to acquit, all (or at least 10) of the jury must agree that they are less than sure that the defendant committed the alleged offence on any occasion at all;

  (c) if the jury is unable to attain the level of agreement either to convict or acquit, then there may be a retrial;

  (d) if, but only if, the jury has convicted in accordance with paragraph (a) then the jury must be asked, for sentencing purposes, to clarify the extent of that offending by identifying any occasion or occasions of alleged offending where it is unable, by a sufficient majority, to agree that it is sure of guilt, and any occasion so identified is to be discounted by the judge in measuring the appropriate sentence.

  (5) The rules to be made under subsection (1) may also provide—

  (a) directions for the judge to follow at a preparatory hearing under subsection (3)(b), including but not limited to the appropriate scope and form of an indictment for a compound allegation; and

  (b) directions for the judge as to the summing up and direction of the jury at the end of a trial of a compound allegation.

  (6) The Crown Court Rule Committee shall make rules of court under section 2 of the Indictments Act 1915 (c. 90) (powers of rule committee) and section 84 of the Supreme Court Act 1981 (c. 54)
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  to provide that offences under the Protection of Children Act 1978 (c. 37) may be tried as compound allegations, and for the purpose of this subsection, the Rule Committee may by order amend or repeal provisions of the 1915 Act."

  The noble Baroness said: I am willing to move the amendment but I put on the record now that I was disturbed last week that, as a result of agreeing to the Government's request that I should continue with the last group on the Energy Bill, I then received a round robin e-mail from the Government Chief Whip's office, directed to all Opposition Front-Benchers, stating that representations had been made by Hansard to the Government objecting to my and other people's agreements to continuation. I shall obey the Government Whip's injunction that we should continue beyond 7.30 p.m. but I apologise completely and utterly to Hansard. It's not me, guv.
  Baroness Scotland of Asthal: My response will be pithy and short. If the noble Baroness takes two minutes and I take one—and noble Lords are content with that—we can probably complete it by half-past seven.
  Baroness Anelay of St Johns: I shall be as brief as possible within the context of not insulting the Law Commission by omitting its arguments. I shall do my best.
  At the risk of using up another 30 seconds, Opposition Front Bench spokesmen are concerned that the Government circulated that message. I know that the Minister will have had no cognisance of it but we on the Front Benches do not have governance of the business of the House. We always side with Hansard, which is much tested and tried— particularly by me going on now.
  I have tabled the amendments because I believe it is important to ask the Government to put on record why they have rejected the Law Commission's recommendations in paragraph 6.9 of their report No. 277, The Effective Prosecution of Multiple Offending. I am particularly grateful to the Public Bill Office for its drafting of the amendment because it was not part of the draft Bill produced by the Law Commission. However, it faithfully mirrors the recommendations made in the report.
  I referred earlier, at Second Reading and subsequently today, to the fact that the Government have stressed the importance of their multiple offending trial without jury proposals for the effective prosecution and sentencing of offences such as the downloading of large quantities of child pornography. I shall not repeat what I said earlier. The Law Commission states that these multiple offending proposals are specifically not necessary for those offences of downloading of pornographic material involving children.
  Paragraph 6.9 of the report states that in its view such offences are capable of being charged under the present law by way of a compound allegation. It goes on to say that if it is thought appropriate to crystallise these principles so as to make them clearly applicable to offending rather than theft or fraud, it may be achieved by a change in the indictment rules.

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  Can the Minister explain what advice the Government received that persuaded them that the Law Commission was wrong?
  Turning to the text of the amendment, it gives direction to the Crown Court Rule Committee to make rules of court to provide for the trial of compound allegations. The rules should define what is meant by "continuous activity". The intention is that, as a result, it would be possible for a host of offences of downloading child pornography and other such matters to be described as a "continuous activity". So, for example, the allegation would need to involve offences that were connected by time and place of action or were connected by purpose.
  The amendment follows the argument of the Law Commission as to the procedure to be followed regarding the effective communication of the jury's decision to the judge, at paragraphs 6.10 to 6.14—I shall not go into those now—and the procedure at preliminary hearings, at paragraphs 6.15 to 6.17, which I also will not summarise due to time. I beg to move.
  7.30 p.m.
  Baroness Scotland of Asthal: I hope that I will be as telegraphic as the noble Baroness. She is quite correct that, in addition to its proposals for the two-stage trials in certain cases, the Law Commission made recommendations for dealing with what it refers to as "compound allegations"; that is, cases involving offences so similar that they can be regarded as part of the same transaction. The examples it used included false expenses claimed repeatedly and regularly by an employee against his employer.
  This clause makes statutory provision for the scheme proposed by the Law Commission and closely follows the Law Commission's recommendations. I
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  commend the noble Baroness on doing that. However, it is not clear that statutory provision is in fact required. The Law Commission thought not. But we are still considering the detail of the recommendations and will consider further the extent to which, if at all, it might be necessary to resort to primary legislation. I hope that that makes the comment worth waiting for.
  Baroness Anelay of St Johns: It does—and we are not late by much. That sounds very flippant, but I am grateful to the Minister for letting us know that the Government are considering the detail of those proposals. I certainly have meetings arranged, between the Committee and Report stages, with organisations interested in the Law Commission's solution to the problem of multiple offending and I will look carefully at their proposals at that stage. It may well be that the Government will not tell us the outcome for a considerable time. Perhaps I will have to re-table the amendment on Report to give them a chance to respond. I beg leave to withdraw the amendment.
  Amendment, by leave, withdrawn.
  Lord Davies of Oldham: I pay tribute to the Committee and thank everyone for their co-operation. I reassure the noble Baroness, Lady Anelay, that I would not have dreamed of going on until eight o'clock and upsetting Hansard a second time. I was with her on that objective. I think that she will recognise that we have concluded the Committee's proceedings at a convenient point. I look forward to the Committee's next sitting on Thursday 5 February at 3.15 p.m.
  The Deputy Chairman of Committees: The Committee stands adjourned.
  The Committee adjourned at twenty-eight minutes before eight o'clock.