First, I thank the noble Baroness, Lady Hamwee, for such clarity in raising some of my concerns. My enthusiasm for the Domestic Abuse Bill is somewhat muted by the worrying trend from the Government more broadly to use civil protection notices and orders to expand the coercive powers of the state, criminalising a greater range of behaviours without the bother of reaching the burden of proof of criminal law.
To be honest, I was surprised that those who usually speak up on civil liberties in this place seemed rather quiet on this, which is why I was glad to see this amendment. I know that the issue of domestic abuse is emotive and sensitive, and that we all want to do what we can to oppose it, but due process is important too, so I warmly welcome this amendment and thank the noble Baroness, Lady Hamwee, and the noble Lord, Lord Paddick, for raising it.
It is a crucial amendment, because it aims to ensure that a criminal standard of proof is applied to a breach of a domestic abuse order. That is just not clear as the legislation is written. It seems an important protection for justice and the rule of law. The danger of any hybridisation of civil and criminal instruments is that criminal penalties can be given out without satisfying the criminal burden of proof, which means that someone can effectively be found guilty of a crime and labelled as a proven abuser without a legal test or representation. That feels far too subjective in the Bill, as it stands.
Of course, I understand that breaches of orders must have consequences. They are not just a piece of paper; they are not just there for show. The amendment seeks to clarify how the judgment of a “reasonable excuse” for a breach in the legislation, or that it was “beyond reasonable doubt”, is arrived at. It must be the role of the courts, but it is just not clear.
Dispensing with the criminal burden of proof can have some unintended consequences that are not in the interests of the victim either. Some campaigners
fear that the police may choose to use breaches of an order as an easier alternative to proving charges for more serious criminal offences, such as assault or criminal damage. A lower threshold may imply that something has been done by the authorities—as it were, ticking a box—but perhaps more should be done. If the police go about choosing an easier tick-box solution, without the nuisance of gathering evidence that can be tested, that is a bad outcome, so we must ensure that order breaches are not used as an alternative to pursing criminal charges where appropriate.
It is also nerve-racking that some breaches of an order may be relatively minor and very far from criminally threatening to anyone, least of all the person the order is protecting. Some fear that alleged victims may be deterred from reporting breaches if that automatically criminalises their partner or their ex-partner, who might perhaps be the parent of their children.
The worry is that those who the Bill seeks to protect are being sidelined in the process and potentially disempowered. Their agency is potentially undermined by decisions taken by the police or third parties who can use breaches of an order to criminalise alleged perpetrators, regardless of what the victim wants or of however minor the breach. If that were to happen, the main loser would ultimately be due process. I therefore support this amendment wholeheartedly and look forward to the Minister clarifying this or reassuring us that this is not a way of avoiding a criminal burden of proof.