COMMONS AMENDMENTS (Hansard, 2 November 2004)

§ Baroness Scotland of Asthal
My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 4 to 7.
These amendments aim to add a surcharge to criminal convictions in the courts, to fixed penalty notices for road traffic offences and to penalty notices for disorder. They divide into three categories. Particularly in view of the comments made by the noble Baroness, Lady Anelay, I intend to take a little time on these amendments so that the House has a full opportunity better to understand the way in which these provisions are made out.
For the surcharge payable on conviction, Amendment No. 8 inserts two new sections into the Criminal Justice Act 2003 that impose a duty on the court to impose a surcharge on a person convicted of an offence, except where the court makes an absolute discharge or a mental health disposal.
The surcharge payable in respect of penalty notices for disorder can be achieved principally through existing powers to make secondary legislation. However, Amendment No. 9 will change the maximum amount that can be prescribed as a penalty for disorderly behaviour from a quarter of the maximum fine to a quarter of the fine plus half of the maximum surcharge.

§ Baroness Anelay of St Johns
My Lords, perhaps the noble Baroness would assist me. I thought I was paying proper attention to her—I apologise if I was not—but on my list the next group of amendments are what I considered to be technical amendments—Amendments Nos. 4 to 7. I may be wrong. I had not anticipated that the noble Baroness was to speak now on surcharges, which are mentioned in Amendments Nos. 8 and 9. I appreciate that that may be an error on my behalf.

§ Baroness Scotland of Asthal
My Lords, I thank the noble Baroness. I think I have skipped a whole group. I have gone straight to the substantive group, but I have not dealt with the technical government amendments. The noble Baroness is absolutely right and I apologise to the House.
The government amendments to which I should have been speaking are those that were discussed in the other place, relating to the clause dealing with restraining orders. Attention was drawn to an inconsistency between the proposed procedures for making restraining orders following an acquittal, and those making an order on conviction. I think I skipped to the most substantive one, as I knew we would spend some time on it and so I did not highlight this group. I thank the noble Baroness very much. With her normal 202 acuity, she is right on the button and has assisted me greatly. I was perhaps somewhat thrown by the generosity of the noble Lord, Lord Thomas of Gresford, in withdrawing the previous amendment.
In relation to Amendments Nos. 4 to 7, it was pointed out that whereas the subsection dealing with the restraining orders following an acquittal specifically provides for both the prosecution and the defence to inform the court's decision by leading additional evidence that would be admissible in civil proceedings, there is no explicit provision for further similar evidence to be adduced following a conviction. The Government undertook to consider that point further.
The Government's original position was that where restraining orders are made following a conviction for an offence under the 1997 Act, the court will already have heard sufficient evidence of harassment or intimidation to make an informed decision about the need for an order. However, where a defendant has been acquitted, the court might have need of further evidence before it can make an informed decision about whether a restraining order was necessary to protect the victim from harassment. That is why we made explicit provision for the prosecution and defence to lead such evidence following an acquittal.
The Bill will make restraining orders available on conviction for any offence—not just those under the 1997 Act. The Government accept that there will, as a result, be cases where the court has not heard evidence of harassment during the criminal proceedings, and may require additional information to judge whether an order is appropriate. Although we believe that further evidence admissible under the Civil Evidence Act 1995 probably would be admissible in such circumstances, we accept that courts and practitioners in such cases would benefit from the greater clarity that would be provided by an explicit provision on the face of the Bill.
It is for that reason that we have introduced these amendments, which will remove the current inconsistency. The effect will be to make it clear that following both a conviction and an acquittal, the court can inform its decision about whether to make restraining order by considering additional evidence that would be admissible in civil proceedings. I hope that the amendment addresses the problem that noble Lords highlighted on the last occasion that the Bill was before the House.

Lord Renton
My Lords, before the noble Baroness sits down, perhaps she would explain something to me, and I dare say to various noble Lords, that has caused 203 great confusion. In Amendment No. 8, which adds a new clause after Clause 11, we find under new Section 161B—

§ Lord Davies of Oldham
My Lords, excuse me. If the noble Lord would allow me, we are discussing Amendments Nos. 4 to 7 at the moment and not Amendment No. 8.

§ Baroness Scotland of Asthal
My Lords, I believe that the noble Lord was misled by me earlier as I went straight on to the substantive amendments on surcharges, not having dealt properly or at all with this group of amendments. I have apologised for that and we are now on track, with the help of the noble Baroness, Lady Anelay. We are now dealing with the tidying up issues raised on the previous occasion.

Lord Renton
My Lords, I thank the noble Baroness for trying to explain the matter. I find it a very puzzling situation. If a surcharge is payable—

§ Baroness Scotland of Asthal
My Lords, I apologise. We have not yet come to that group of amendments. As I tried to explain, I wrongly started on the wrong group; I have totally acknowledged my error; I am back on track; and we shall come to the next group in a moment.