My Lords, I thank noble Lords who have spoken to these amendments. Perhaps I may be forgiven for taking up the invitation from the noble Lord, Lord Paddick, to write to him. He is, with respect, entirely correct that there are a number of issues here. He asked specific questions to which he is entitled to receive specific answers. While I will do my best to answer some of his questions in my remarks, I will need to go through Hansard to pick up others and write to him.
These amendments relate to different aspects of how the domestic abuse protection order will be made. To be clear, and in response to a point made by my noble and learned friend Lord Mackay of Clashfern, these amendments relate to how DAPOs will operate when they are made normally, not only in the exceptional case when they are made on a “without notice” basis. I hope the Committee will permit me to go through the amendments in turn.
I hope that nobody understood my comments in the last debate to be dismissive, to use the word of my noble friend Lord Cormack. I referred to the experience of the noble Lord, Lord Anderson of Ipswich, as a recorder, the vast experience of my noble and learned friend Lord Mackay of Clashfern, and the fact that the amendments are supported by the Magistrates’ Association to underline that we have given these amendments the most careful consideration. I am sure that all noble Lords who have had significant engagement with my noble friend Lady Williams and me will accept we have gone out of our way to hear their concerns and engage with them.
On Amendments 80 and 81, Clause 34 sets out that a responsible person must be specified for each positive requirement imposed by a DAPO. The responsible person will have a duty to make the necessary arrangements to deliver the requirement, promote compliance and inform the police of any breaches.
Clause 34 also sets out that the courts must receive evidence about the suitability and enforceability of positive requirements from the responsible person before making an order. The responsible person will typically be a representative from the organisation delivering the particular programme that the person subject to the DAPO is required to complete, such as an organisation that delivers a perpetrator behaviour change programme or a drugs or alcohol treatment programme.
Amendment 80 in the name of the noble Lord, Lord Ponsonby of Shulbrede, would require the court also to consider evidence from probation or youth offending teams as appropriate, alongside evidence provided by the responsible person. While I agree with the noble Lord that the court should consider all the evidence necessary prior to making an order, I consider that the evidence provided by the responsible person will be sufficient to establish the suitability and enforceability of positive requirements without the specific requirement for further evidence from probation or youth offending teams. We do not consider it appropriate
to require evidence from youth offending teams, as a DAPO cannot be made against a person below the age of 18.
I agree with the general aim of Amendment 81, which is to maximise the effectiveness of the requirement to attend drug, alcohol or mental health programmes. However, as I have just mentioned, Clause 34 already specifies that the court must consider the evidence provided by the responsible person in relation to the suitability and enforceability of the requirements prior to making a DAPO that imposes positive requirements. I understood that to be a point also made by the noble Lord, Lord Paddick. The court will also be able to take into consideration any representations made by the person against whom the order is to be made, which I hope that responds to the point made by the noble Baroness, Lady Jones of Moulsecoomb. Given these provisions, I do not believe that the specific agreement of the alleged perpetrator is also required to maximise the effectiveness of such programmes. I hope that that responds to one of the points of the noble Lord, Lord Anderson of Ipswich.
Amendment 82 relates to Clause 36, subsection (1) of which provides:
“A domestic abuse protection order takes effect on the day on which it is made.”
Clause 36(2) provides that where a DAPO already exists, the courts may make the new DAPO take effect when the existing DAPO ceases to have effect. I agree with the noble Lord, Lord Paddick, that there should be no gap in the protection provided where there is a transition from an old to a new DAPO. However, as Clause 36 already provides for this, we do not see reason to make the change proposed in Amendment 82.
As for the explanatory statement to the amendment from the noble Lord, Lord Paddick, on whether the same provisions could be imposed under both orders, that is a matter for the court, which would look at all the circumstances of the case. One must remember in this context that the two orders might be sought and obtained by different applicants. I hope that that also answers the points of the noble Baroness, Lady Hamwee, but if, on a reading of the debate, it does not, I will, if I may, write to her with any additional points.
On Amendments 83 and 84, Clause 36 also provides that the DAPO can be flexible in duration, so that longer-term protection can be provided to victims if needed. I understand the concerns expressed by the noble Lord, Lord Ponsonby, and other noble Lords about DAPOs being applied indefinitely, but the flexibility of the DAPO, including its duration, is central to its effectiveness, particularly when compared to existing orders. By contrast, the two-year limit proposed by the noble Lord is both hard-edged and somewhat arbitrary.
It is vital that victims can be provided with longer-term protection when needed. Clause 36 gives the court several options so that it may determine the duration of each DAPO based on the facts of the case before it. The order can therefore be in place for a specified period until the occurrence of a specified event or further order of the court. To give noble Lords a simple example: the victim is attending a course of study, which has two years and three months to go. Is
she to be required to obtain a two-year order, which might prevent the perpetrator going near that place of study, then have to come back to obtain a further order for three months? If that were to be the case, one would ask, rhetorically, why it should be so.
As set out in Clause 36, the court may specify within the DAPO itself different durations for different requirements imposed by the order. The courts may also vary or remove certain requirements or discharge the order entirely where it is satisfied that the order is no longer necessary for the protection of the victim. It is important to note that the Bill already contains various mechanisms to protect the right of the person subject to the DAPO. Under Clause 33, the court can only impose requirements that it considers necessary to protect the victim from domestic abuse or the risk of domestic abuse. Clause 34 requires the court to avoid, so far as is practicable, imposing any requirements that conflict with the person’s religious beliefs or interfere with their work or attendance at an educational establishment. Clause 36, as the noble Lord, Lord Anderson of Ipswich, noted, provide a maximum duration for any electronic monitoring requirements of 12 months.
I move on to Amendments 85 and 87 to Clause 37. The clause provides that failure to comply with any requirement imposed by a DAPO without reasonable excuse is a criminal offence carrying a maximum penalty of five years’ imprisonment, or a fine, or both. That sends a strong message to perpetrators that non-compliance will not be tolerated. As specified in Clause 37, where a DAPO has been made without notice, the behaviour of the perpetrator can be considered a breach only if, at the time of the behaviour, the alleged perpetrator was aware of the existence of the DAPO.
I agree with the general aims of the amendments proposed by the noble Lord to Clause 37, which are to ensure procedural fairness so that criminal liability and punishment for breach of a DAPO will occur only where the breach is proved to the criminal standard of proof and where the perpetrator knows of the order’s existence. However, I do not believe that the amendments proposed are necessary. The criminal standard of proof—I am afraid that I do not have a Latin tag here for the noble Baroness, Lady Hamwee—will apply automatically in any criminal prosecution for breach of a DAPO. As already mentioned, Clause 37 already specifies that the behaviour of the perpetrator can be considered a breach of the DAPO only if the perpetrator is aware of the order at the time of the relevant behaviour.
Let me say an extra word about each of those points. First, we believe that the civil standard of proof is appropriate for making what is a civil order. This is the position taken with a number of existing protection orders of this kind. I recognise that those on the now somewhat virtual Liberal Democrat Benches do not support this approach as a matter of principle and I understand their reasoning, but I do not agree with it. The principle that I have set out that a civil standard of proof is appropriate for such orders is now firmly established as part of our legal framework.
It is worth noting in this context that to the extent that the Joint Committee considered this question when examining the draft Bill, it is evident from its
report that it had no issue with applying the civil standard of proof. For example, at paragraph 84 of the report, the Joint Committee said:
“The standard of proof required for a DAPO is the civil standard (balance of probabilities) which means a DAPO may be made in criminal proceedings even if the perpetrator has been acquitted.”
A similar point was made at paragraph 107. I have no doubt that if the Joint Committee had any concerns about applying the civil standard it would have made that clear.
One of the strongest elements of a DAPO is that it is a civil order, made on the civil standard of proof. That means that if a victim is not able to, or chooses not to, seek remedy through the criminal justice system, they can still access protection from the court. At the same time, we want to send a clear message to perpetrators that breach of an order will be acted on, which is why we have provided that breach of an order will be a criminal offence. As noble Lords will know, that is already the case with many existing civil orders, including restraining orders, non-molestation orders, knife crime prevention orders and serious crime prevention orders.
Breach of a DAPO does not lead automatically to criminal sanctions. The breach would need to be reported to the police, who would then investigate and refer to prosecutors for a decision on whether to pursue a prosecution. Criminal sanctions would be imposed only following a conviction for the breach offence in the criminal court, which would need to be proved to the criminal standard in the usual way.
The second point is the requirement proposed by the amendment that a perpetrator must be aware of “the requirements” of a DAPO and not only of its existence. I hesitate to disagree with a point that the noble Lord, Lord Anderson of Ipswich, said was unanswerable. However, I am sure that the noble Lord will not take it amiss if I do, and I will explain why. Adding “the requirements” of the DAPO is likely to lead to a lot of uncertainty, much litigation, and less protection for victims. What are the “requirements” of a DAPO? What would that mean? Is it the terms of the DAPO or what the terms require you to do in practice? They are different things. What does it mean to be aware of the requirements of a DAPO? Is it to have read them, to have understood them, to have understood their legal effect or to have understood their practical effect? They are all different things. Therefore, in response to the noble Lord, Lord Anderson of Ipswich, and to a similar point raised by the noble Lord, Lord Paddick, I say that we generally require people to obey orders of the court once they are aware that an order has been made, and that a DAPO should be no different.
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The noble Lord, Lord Paddick, in this context drew attention to the phrase “without reasonable excuse” and asked a series of questions about how that would be interpreted. I certainly do not want to gloss a phrase composed of usual English words that is very familiar to the courts. The noble Lord also asked a specific question about a read-across from other orders in this regard. On that point as well, in consonance with the invitation he extended to me, I will write to him if I may.
I now turn to Amendment 87 to Clause 38. Clause 38 specifies that a person—the victim, the person who applied for the order if that was not the victim, or any other person with the leave of the court: that is, the permission of the court—can apply for a warrant for the alleged perpetrator’s arrest if the applicant “considers” that the alleged perpetrator has failed to comply with the DAPO or is otherwise in contempt of court in relation to the DAPO. The amendment would change the standard of belief required of the applicant who is applying for such a warrant from “considers” to “reasonably believes”.
We do not agree that this amendment is necessary because, although the standards might be said to be different, we do not consider that the amendment would significantly increase the standard of what the applicant has to believe before they can make an application. Moreover, this is the standard required of the applicant when applying for a warrant. The judge when issuing the warrant has to meet the “reasonably believes” standard—see Clause 38(5)(b). In so far as the noble Lord, Lord Paddick, is seeking to ensure that no warrant can be issued before this test is met, that is already the case because that is the test required to be met by the judge issuing the warrant.
Finally, Amendment 88 relates to Clause 42, which specifies the conditions in which a court may vary or discharge a domestic abuse protection order—a DAPO—made by that court or any other court. Clause 42 already provides that where an application to discharge or vary an order is made by the person protected by the order, and their application seeks to reduce or remove the protections provided by the DAPO, the court must hear from that person. As I understood the point made by the noble Lord, Lord Paddick, it was whether “hear” meant hear in person. I will deal with this point in more detail when I write to him. Generally, when a court hears from somebody, it means that it receives that person’s evidence or submissions. The noble Lord will be aware, as will all Members of the Committee, that there are a host of provisions in the Bill that deal with matters to ensure that vulnerable persons are not unduly exposed to the court process—but if I can add to what I have just said in my letter to the noble Lord, Lord Paddick, which seems to be lengthening by the minute, I will certainly do so.
Amendment 88 would, however, require the court to hear the views of the person for whose protection the order was made if they wish to be heard regardless of who has made the application to vary or discharge, and regardless of what the variation would involve. Of course, to state the obvious, we agree that the views of the person for whose protection the order was made are important when the court is considering whether to vary or discharge an order, but we do not agree that this amendment is required in order to achieve the aim behind it. That is because, as I have already intimated, and in addition to the requirement I have set out to hear from the protected person where they are seeking a reduction in the protection provided, Clause 42(6) directly incorporates the provisions of Clause 31 into the court’s process for considering an application for discharge or variation.
Clause 31(1) sets out that before making a DAPO, the court must consider
“any opinion of the person for whose protection the order would be made—
(i) which relates to the making of the order, and
(ii) of which the court is made aware”.
The incorporation of Clause 31 into Clause 42 means that where the court is made aware of the views of the protected person about the requested discharge or variation, it must take them into consideration.
Before I sit down, I should pick up one other point which is a rather standalone point made by the noble Baroness, Lady Hamwee. She asked two questions relating to the alternative of a contempt of court procedure. As I understand it, she first asked why that was in the Bill, and the short answer is that some victims may not want their perpetrators to be criminalised or to see that route taken. That is why the alternative is there. She also asked a more detailed question about experience in the use of contempt of court orders in this and related contexts. Standing on my feet now, I am not sure what data is available in that regard, but I will reply to her in writing on that point. I hope that is a sufficient and acceptable answer to the points she raised.
I reiterate my undertaking to write in particular to the noble Lord, Lord Paddick, because he asked a series of detailed questions. I hope that my explanation of these various issues has gone at least some way to reassure the noble Lords, Lord Ponsonby of Shulbrede and Lord Paddick, and the noble Baroness, Lady Hamwee. While accepting that I am sure we will not agree on every point raised by the amendments, I would none the less invite the noble Lord to withdraw his amendment.