Domestic Violence, Crime and Victims Bill [Lords]

Public Bill Committee, 29 June 2004.

Standing Committee E

Domestic Violence, Crime and Victims Bill [Lords]

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

On a point of order, Mr. Benton. There have been reports this morning of investigations being conducted in relation to murder and manslaughter, which will obviously have an impact on the subjects that we are discussing. Can the Under-Secretary of State for the Home Department, the hon. Member for Wythenshawe and Sale, East (Paul Goggins), make available any details that his Department has on those reviews and say whether there has been any analysis of the impact that they could have on, for example, the domestic violence homicide reviews that we discussed at an earlier sitting?

Paul Goggins (Labour, Wythenshawe and Sale East)

Further to that point of order, Mr. Benton, I do not have anything to add immediately to enlighten the hon. Lady, but I promise to look into her point. If there is any appropriate information, I shall bring it to the Committee.Clause 10 restraining orders: England and Wales

Clause 10 - restraining orders: England and Wales

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 10, in page 6, line 4, at end insert—

'(1A) In subsection (1) of that section after ''an order under this section'' insert—

''(a) if the prosecutor asks it do so, or

(b) if the court thinks it is appropriate to do so.''

'(1B) After subsection (2) of that section insert—

''(2A) For the purpose of deciding whether to make an order under this section the court may consider evidence led by the prosecution and the defence.

(2B) It is immaterial whether evidence led in pursuance of subsection (2A) would have been admissable in the proceedings in which the offender was convicted.''

(1C) After subsection (3) of that section insert—

''(3A) An order under this section takes effect on the day on which it is made, but the court may provide in any such order that such requirements of the order as it may specify shall, during any period when the offender is detained in legal custody, be suspended until his release from that custody.''.'

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following amendments: No. 34, in page 6, line 6, after 'heard', insert

'on the making of an order under this Act and'.

No. 11, in page 6, line 16, at end insert—

'(2) For the purpose of deciding whether to make an order under this section the court may consider evidence led by the prosecution and the defence.

(3) It is immaterial whether evidence led in pursuance of subsection (2) would have been admissable in the proceedings in which the defendant was acquitted.'.

No. 12, in page 6, line 34, at end insert—

'( ) In section 3(2)(fa) of the Prosecution of Offences Act 1985 (c.23) (functions of the Director of Public Prosecutions) after ''orders under'' insert ''Sections 5 and 5A of the Protection from Harassment Act 1997 (Restraining Orders),''.'.

Dominic Grieve (Conservative, Beaconsfield)

Clause 10 deals with the Government's intention to provide restraining orders that should be capable of being made on acquittal as well as on conviction, as they are at present. In addition, the Government intend to widen the conditions under which restraining orders may be made after conviction to cover conviction for any offence and not just a category of offence, as at present.

Amendment No. 10 is probing and is designed to find out from the Government whether the Bill's drafting will achieve the exact aims that the Government intend. As matters stand, my understanding is—the Minister will correct me if I am wrong—that a restraining order made after conviction is made of a court's own motion when the judge decides that it is appropriate to do so. So far as I am aware, no further evidence that could go towards the making of that order is adduced in court following a conviction. I had a look at the Protection from Harassment Act 1997, and nothing in it suggests that such a provision would be possible. If I am wrong about that, I would be grateful to be corrected.

In providing alterations to restraining orders on conviction, the Government have first, under clause 10(1), widened the scope of the offences to all offences for which a restraining order can be made. They have then added subsection (2), which states:

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

That raises two questions. First, do the Government wish the present format to continue, whereby only the court of its own motion can make the order? With restraining orders on acquittal, the possibility exists for the prosecution to make an application. Should it not therefore be for the prosecution, as well as the court, to make an application after conviction?

Secondly, what provision exists if an application is being made after conviction for further evidence to be adduced if necessary, in the same way as would happen after acquittal? Should not we ensure that the provisions after conviction and after acquittal are identical? Have the Government got the wording right to achieve that objective? If they do not intend to achieve that objective, and their view is that the procedure after conviction and after acquittal can be wholly dissimilar, I would be grateful to know why. For example, where someone is convicted of an offence of violence and more material could be placed before the court about the violence that he had done to a member of his household that had not been adduced in the main trial, because, for some reason, it had to be excluded, would it not be desirable for the prosecution

to be able to say, ''We have some more evidence that we want to present as a reason for making a restraining order under the Protection from Harassment Act 1997''? Under the Government's proposals, that could happen after an acquittal, but I do not think that it could happen after a conviction. That is the nub of amendment No. 10.

Amendment No. 12 is mainly consequential. Amendment No. 11 is designed to make it clear that evidence can be led by the prosecution and the defence after acquittal in relation to the making of an order. New section 5A may provide for that to happen anyway, but I am not certain that, as it is drafted, it ensures that that is the case. I seek an assurance that the Government have noted those points; if the clause requires some amendment, it could be usefully amended along the lines that I have proposed.

David Heath (Liberal Democrat, Somerton and Frome)

I have a good deal of sympathy for the comments made by the hon. Member for Beaconsfield (Mr. Grieve). I shall primarily discuss amendment No. 34, which comes from a similar point. As I understand it, the procedure is that a victim may make representations and has a right to be heard on the variation or removal of an order. That being the case, it seems extraordinarily perverse that there is no right to be heard at the making of the order in the first instance.

The Minister in another place argued that such a provision was unnecessary for two reasons. First, because of the nature of the evidence that is given, the person is likely to be present in the court. Although there may be occasions when they are not, I accept that they often will be, or that they will be represented even if they are not physically present. The second argument is that the court, because it will have heard all the evidence in the main case, should not have to take other matters into account at the point of making the order.

As the hon. Member for Beaconsfield usefully pointed out, other evidence or circumstances that were not admissible or that were irrelevant to the main case may be admissible or relevant to the making of a restraining order. For that reason, my amendment simply provides for the victim to be heard at the point at which the order is made. It makes the procedure analogous to that which is spelled out in the Bill for the variation or revocation of an order, where it is clear that it is important that everyone who is a party to the order has the opportunity to be heard. I hope that the Minister will be sympathetic to the intention of the amendment and also to its content. It is a simple, small amendment that is in the spirit of the Government's proposals. It would make the situation explicit for the courts, and it would improve on the current position.

Vera Baird (Labour, Redcar)

There is concern among women's groups that there is no opportunity for the victim, at the end of a trial, to have some input into the kind of order that will be made. She may be there, as the hon. Member for Beaconsfield conceded, but she may well not. In some cases, the victim of a crime may

just want to give evidence, leave and hear the outcome of the case later. There is no compulsion to remain to the bitter end, and she may not feel the impulse to do so.

There may be no opportunity to instruct the Crown Prosecution Service as to exactly what kind of order would help. More importantly, the victim should be there while the terms of the order are debated before the judge, because the orders are likely intimately to affect her life and relationships. We are talking about domestic violence on the part of a person who may well remain the father of the defendant's children. It seems slightly cavalier for a blanket order to be made without the defendant having any input at all, and there does not seem to be any reason why she should not have the opportunity to have input. Of course, that is part of the sentencing process and normally does not involve representations from elsewhere. However, there is a pretty direct analogy with victim impact statements: that is not the latest term for them; I have forgotten what it is—

Harriet Harman (Labour, Camberwell and Peckham)

Personal.

Vera Baird (Labour, Redcar)

Yes, victim personal statements; I am grateful to the Solicitor-General. The statements set out the impact that the criminality had on the victim, and that is dealt with on sentencing, so that the judge has a full appreciation of the depth of the criminality's impact. That is exactly the sort of thing that one would want put forward at that stage. Those statements are a good parallel to use in justifying taking that step.

It is probably a good idea to ensure that the victim in a domestic violence case has a right to be heard. Similarly, it seems hard if the defendant does not have a right to be heard, although, of course, he will continue to be represented, so there are no real problems there. When we come to consider the position on acquittal, it may be more difficult to ensure that the defendant has a right to be heard, and that no order is made if he is not there, because as soon as he is acquitted, there is no power to keep him in court. It is therefore easy for him to avoid an injunction by leaving at that time. However, that is a matter to discuss later. It seems to be a bit of a miss that the victim will not have a say in the kind of order that will govern not only the defendant's life, but hers, and I invite the Minister to think about introducing change.

Chris Leslie (Labour, Shipley)

Good morning, Mr. Benton. As usual, it is a pleasure to serve under your chairmanship.

As was mentioned at an earlier sitting, the fact that we present amendments first and then debate clause stand part means that we do not talk about the good parts of the proposals. Essentially, the clause is about allowing the courts to make a restraining order in respect of any offence and extends the availability of such orders to offences beyond the two currently allowed in the Protection from Harassment Act 1997, which are harassment and fear of violence.

Amendments Nos. 10 to 12 are quite similar to those debated in the other place, and the Attorney-General was anxious that we should look at them in more detail, because some important issues were raised. We have done that, and despite our hope that we could look at them in a favourable light, we are unable to support the conclusions reached in them.

Under the 1997 Act, the decision to impose a restraining order on a person convicted of harassment or of putting someone in fear of violence is taken by the court in parallel with the sentencing process. The prosecution often reminds the court that it can make an order, but it does not actually apply for one. That procedure works very well, and figures show that the court makes restraining orders in more than half of cases in which a person is convicted under those two offences in the 1997 Act. Under the clause, the same procedure will apply to courts sentencing someone convicted of any offence.

Dominic Grieve (Conservative, Beaconsfield)

I appreciate the Minister's point, but of course the two offences under which the restraining order can currently be made lead one almost inexorably to think about making a restraining order. Widening the scope of the offences to all offences on which a restraining order could be made would make it likely that there would be many occasions on which the court might well not think of a restraining order, which was one of the reasons for bringing the prosecution into the process.

Chris Leslie (Labour, Shipley)

It may well be that the courts would not think it appropriate to impose a restraining order in certain cases. In our view, it would, however, be wrong to restrict the court's ability to making restraining orders simply for harassment and causing fear of violence. There are many other parallel criminal offences—criminal damage, stalking or other offences—that people can imagine putting a victim under the persistent threat of fear or danger, for which the court might want to make restraining orders. We wanted simply to remove the two offences from being the only circumstances in which restraining orders could be put in place.

Sylvia Hermon (UUP, North Down)

Will the Minister reflect on what he has said? We do not have antisocial behaviour orders in Northern Ireland at present, although we are consulting on them. What impact does he anticipate the restraining orders will have on antisocial behaviour orders?

Chris Leslie (Labour, Shipley)

They are two separate court orders and relate to specific purposes. It would not be right to see them as similar or identical. Restraining orders are to protect a victim or class of victims. Antisocial behaviour orders have a different, wider ability: to protect the public interest, or a particular neighbourhood and so forth. The orders are of a different nature. I am sorry that the provisions are not familiar, for whatever reason. It is not within my portfolio, but I will certainly look at the history and origins of antisocial behaviour orders in Northern Ireland and at why, as the hon. Lady says, they are not occurring.

Clause 10 is drafted so that a court can sentence someone convicted of any offence and impose a restraining order; it could also do so when dealing with somebody on acquittal of any offence. In the latter case, the prosecution and defence would be able to inform the court's decision by adducing additional evidence, admissible under the civil evidence rules. That relates to the point made by the hon. Member for Beaconsfield.

At present, we do not have the ability to put a restraining order in place on acquittal. In such circumstances, it would be right for there to be the opportunity for further evidence to be adduced, but it should be under the civil arrangements, since the prosecution would not have been able to establish guilt to secure a conviction. I think that the hon. Gentleman is right about the Protection from Harassment Act 1997.

David Heath (Liberal Democrat, Somerton and Frome)

It is nice to have a third Minister participating in our proceedings, but I dispute the logic of what he has said. By definition, a restraining order does not deal specifically with the offending behaviour that has been the subject of the trial; different behaviour is required to be restrained, not necessarily the behaviour for which the person was found guilty. It seems extraordinary that such a restraining order can be made only on the evidence been brought forward on a specific charge, which may not be the matter on which the restraining order is made.

There is no capacity under those circumstances for bringing forward other evidence on a civil court basis in support of a restraining order. That does not sound logical, and I hope that the Minister will consider it carefully.

Chris Leslie (Labour, Shipley)

Perhaps I did not explain correctly. On acquittal, the court would be able to hear the further evidence offered; obviously, there was insufficient evidence to secure the conviction. If the court decided to make an order after conviction, it would base that on the evidence that was adduced in respect of the conviction; that would be the motivation.

So far, the courts have worked well. They have produced restraining orders on many occasions. We do not have evidence that they are working improperly. We simply felt the need to widen the availability the restraining orders so that the courts can make them both on conviction for any offence and on acquittal.

Dominic Grieve (Conservative, Beaconsfield)

I share the view of the hon. Member for Somerton and Frome (Mr. Heath) that there is an illogicality here. There was a strong argument for not allowing restraint orders to be made on acquittal at all—a principled argument based on the need to go to the civil court. However, I confess that the proposal was sold to me. I accepted that justice should be speeded up by enabling a court to grant a restraining order where it has been seized of the matter and where it is clear that an injunction—that is what a restraining order is—should be granted. I accepted that that was a way of simplifying and streamlining our justice system,

but if that process is going to be used on acquittal by allowing extra evidence to be adduced, I cannot for the life of me see why it should not be allowable to adduce extra evidence on conviction—if, for instance, although there is a conviction for an offence, one or two of the component elements that would persuade a judge that a restraining order must be made are still missing.

I do not understand the Minister's logic. Once he has taken the major step of allowing restraint orders on acquittal, it is only a minor step to deal with the matter after conviction and allow further evidence to be adduced.

Chris Leslie (Labour, Shipley)

I take the point. We felt that it was not necessary to do that given that a conviction will have been established on the basis of the evidence presented before the court, and that evidence will have led the court in many circumstances—as has been the case in the past, even in respect of two particular offences—to decide to impose a restraining order. We did not feel that it was necessary to do more than that.

I hear what the hon. Gentleman says, and I will look further at his argument, but I am advised that the provision is not necessary and that no representations have been made on needing extra evidence to be adduced following conviction, given that so much will have been done to establish the guilt of the individuals concerned that that will naturally lead the court to impose a restraining order. We feel that we have struck the right balance.

Amendment No. 10 would mirror procedures in respect of antisocial behaviour orders following conviction. In those cases, section 86 of the Anti-social Behaviour Act 2003, which amended the Crime and Disorder Act 1998, enables the CPS to ask the court to make an order and allows the prosecution and defence to lead additional evidence. We did not feel that it was necessary to do that in the present case, not least because we made changes and established the procedures in respect of antisocial behaviour orders precisely because experience had shown that there was a need to clarify the role of the CPS in proceedings to ensure greater consistency across England and Wales. We also needed to change the arrangements to prevent problems that had arisen where some courts had indicated a reluctance, or had even refused, to hear applications for orders on conviction made by local authorities on the grounds that they did not have a standing before the court. Such matters are particular to antisocial behaviour orders. They are different from the procedures relating to restraining orders. The latter are working well and we do not feel that there is any particular need to change them.

We do not believe that making restraining orders available on conviction for an offence will pose insurmountable problems. Courts are already familiar with the concept of harassment and are unlikely to experience significant difficulties appreciating which cases might call for an order. I have already said that in such cases the CPS will be able to remind the court of its powers.

Amendment No. 12 is consequential; it is necessary to make amendment No. 10 work, and it stands or falls with that amendment. Amendment No. 11 would bring the subsections governing the admissibility of evidence in proceedings for restraining orders on acquittal into line with the equivalent subsections dealing with antisocial behaviour orders. Amendment No. 11 is not necessary, although I understand the probing intention behind it. Whereas under the 1998 Act restraining orders are made following a conviction, clause 10 would allow them to be made after an acquittal. Because the prosecution will have failed at that stage, the Government have linked the production of evidence in such proceedings to the rules governing the admissibility of evidence under hearings for a civil injunction under section 3 of the Protection from Harassment Act 1997. There are a number of other drafting issues relating to amendment No. 11, but I shall not discuss them at this stage because they are too technical. We needed the civil injunction arrangement because we are extending the measure to include acquittal and make the restraining orders available at that time.

The Government's intention in drafting subsection (2) was to deal with one of the issues raised in response to the consultation paper: the need for victims to be kept informed when an application is made to vary or terminate a restraining order that is protecting them. I have heard my hon. and learned Friend the Member for Redcar (Vera Baird) and Opposition Members argue that they want to extend the right to be heard. Subsection (2) will give any person who is mentioned in a restraining order a right to be heard—to make representations—if an application is made to vary or terminate the order. 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 an order, so they will be able to exercise their right to be heard.

Amendment No. 34 would extend the right to be heard where the restraining orders are made in the first place, thereby changing established procedure where courts make restraining orders on conviction. In such cases, as my hon. and learned Friend suggested, the court makes its decision as part of the sentencing process and on the basis of the evidence that it has already heard. Not only is the defendant present and legally represented in most cases, the person to be protected by the order will, almost invariably, be in court for the proceedings.

CPS lawyers often regard it as their duty, as officers of the court, to make known the victim's views on a restraining order, and the responses to our consultation document revealed no particular dissatisfaction with those arrangements. In addition, it is possible that giving defendants, as well as victims, a right to be heard on the making of an order could lead to adjournments and delay the protection provided by restraining orders. It is important that we try to ensure that the court is able to put in place relatively swiftly the protection for the victim or the defendant in those

cases. If court proceedings need to stop and start to enable various parties to be heard, there is a risk that the protection will be delayed.

I understand that in designing the structures we must ensure that we do not block the ability for people to make their views known as early as possible. However, my advice is that saying that the current arrangements, in which the CPS is able to make its points to the court on behalf of the victims, work. There is a need to avoid a series of adjournments and protracted proceedings in the court, because the orders protecting the victim need to be made as swiftly as possible.

Geoffrey Clifton-Brown (Conservative, Cotswold)

Perhaps I have misread section 5 of the Protection from Harassment Act 1997 and clause 10. When someone has breached a harassment order and the matter goes back to the court, the court has the power to convict the person on indictment or impose a fine. Will the Minister clarify whether the court, as opposed to anyone else, can vary the original terms of the harassment order?

Chris Leslie (Labour, Shipley)

I think that that is the case. One of the reasons why we want to extend the right to be heard to the victim—the party to the case—is so that on variation or termination, or application for such, of the restraining order the victim has the capability to be heard. Unfortunately, restraining orders have sometimes been varied without the victim being informed that such proceedings were taking place. That is why we have put the measure in the Bill, as a result of which we have provoked the debate about whether there should be a general right to be heard at all stages of the restraining order being put in place. We do not consider that it is necessary to have that extra right at the outset of the proceedings. I accept the strength of the argument being advanced, but I am advised that such steps are not necessary because there is greater likelihood of such a right being the norm at the outset of the case.

David Heath (Liberal Democrat, Somerton and Frome)

The Minister has said two things that disturb me. First, he suggested that all we are talking about is a right to be heard in a vague way. In fact, we are arguing that there is a need to adduce more evidence to secure a restraining order in the same way as an injunction is secured in a civil court. Secondly, he said that a delay in the making of the restraining order would leave a victim unprotected. That is not the case. When criminal proceedings are in train, any restraining orders can be made under bail conditions and will remain in place until the conclusion of the case. It is nonsense to suggest that there is no capacity to apply a restraining order until the conclusion of the criminal case.

Chris Leslie (Labour, Shipley)

The hon. Gentleman is arguing against himself. He said that he wanted people to come forward to give evidence under acquittal, which is an arrangement for adducing further evidence before the restraining order comes into place. If there were an adjournment, clearly the restraining order would not have been put in place. It makes sense for the court to

have the capability to decide on a restraining order and thus provide protection to the victim as soon as possible.

Dominic Grieve (Conservative, Beaconsfield)

I am not sure that the Minister is following the point. Let us consider a restraining order being put in place on acquittal. There will almost certainly be a delay in achieving that. If more evidence is to be adduced following the acquittal, it is probable that the case will be adjourned to another day. It will be difficult to put the order in place then and there. Now, let us consider putting in place a restraining order after conviction. As the hon. Member for Somerton and Frome said, if the judge does not sentence then and there, he can impose bail conditions or remand the person in custody, which would prevent the convicted defendant from taking the actions that would subsequently be prevented by the restraint order. I do not follow the Minister's argument.

Chris Leslie (Labour, Shipley)

I hope that the hon. Gentleman does follow my argument, although he may not agree with it. We need the restraining order must be capable of being agreed by the court early on in the proceedings. It will be necessary to make parallel procedural changes to the rules of the court to make sure that there will be hearing of evidence on acquittal. Our intention is to take such action in as swiftly as possible. Although this is a developing policy, I believe that it is necessary to make sure that the court has the ability to put a restraining order in place as a preventive mechanism, not as a punitive measure, in order to protect the victim from the fear of violence or harassment soon after acquittal or conviction. I am receiving advice that we do not need to extend matters further. We will be watching developments very carefully, but neither the advice that I have been given nor the responses to the consultation paper suggest that the arrangements suggested in the amendments are necessary.

Sylvia Hermon (UUP, North Down)

Can the Minister assure the Committee that, from the advice that he and his colleagues have received about the compatibility of this provision with our obligations under article 6 of the European convention on human rights, he is absolutely assured that the orders are compatible with the right to a fair trial?

Chris Leslie (Labour, Shipley)

I am assured of that. The Home Secretary would not have made the statement on the front of the Bill were that not the case. With human rights considerations, it is important that we bring into the balance the need to protect the rights of the victims to be free from harassment and fear of violence. It is important that we have a prevention power through restraining orders even under acquittal to provide those individuals their human right to be free from fear of violence or harassment.

Dominic Grieve (Conservative, Beaconsfield)

The hon. Member for North Down (Lady Hermon) touches on a question that the Minister himself has not raised: is there a problem in allowing further evidence to be adduced after

conviction in order to secure a restraint order based on article 6, as the restraint order would be seen as part of the total package of the sentence, and therefore would not follow the rules of a fair trial? Is that the problem that has led the Government not to go down this road, even though they are prepared to allow further evidence to be adduced after acquittal?

Chris Leslie (Labour, Shipley)

We do not see the restraining order as a punitive sentence—it is a preventative measure that is currently available on application. In the family civil court environment, the order may be agreed by a court. We see the restraining order being achieved under the rules of admissibility of evidence under civil procedure, and, similarly, it is a preventative measure. On that basis, there is no particular difficulty.

Vera Baird (Labour, Redcar)

I understand entirely what my hon. Friend is saying. He, along with everyone else, is right that post conviction there is not a problem. The vulnerability of somebody who has been a victim arises post acquittal, when there is no ability to impose bail terms and it is important to be able to act quickly. If, post conviction, the judge felt that he needed more evidence, does my hon. Friend perceive that he would have the power to call for it?

Chris Leslie (Labour, Shipley)

My hon. and learned Friend is learned for a very good reason: she knows far more than I about the whys and wherefores of the court. In the procedures that we have in place, we do not envisage a post-conviction scenario having the same admissibility of evidence as the post-acquittal scenario. However, I may need to take further legal advice on that, and supply a note to the Committee to say whether I am right. If I am wrong, I shall certainly write to my hon. and learned Friend. She raises a reasonable point that has arisen from debate, and I shall certainly discuss it with officials. The current advice is that the arrangements in the amendments are not necessary, and I hope that through my great argument I have been able to persuade the Committee of that fact.

Geoffrey Clifton-Brown (Conservative, Cotswold)

The hon. and learned Member for Redcar has raised a vital point. When the Minister writes to her, will he be sure to write to the whole Committee?

Chris Leslie (Labour, Shipley)

The round-robin letter arrangements are well established, and to write to one Member means writing to all. I hope that the amendment will not be pressed.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful to the Minister for a full series of answers. In part, he answered some of my concerns. I remain puzzled however at the willingness to allow for further evidence to be adduced after acquittal, which is necessary for the civil proceedings of establishing the restraint order, while refusing to allow that to happen after conviction. That is an illogicality that I simply cannot get away from. I raised the question of the Human Rights Act 1998 and wondered whether that had caused the anxiety, but the Minister tells me that it has not. I cannot see the

problem or why the Bill should not be amended along the lines that I suggested, not necessarily using the text of amendment No. 10 but in a way that makes it clear that further evidence can be adduced after conviction if that is thought to be necessary to establish the foundations for the restraint order.

That might be an abstruse argument and in reality that problem might never arise, but I shall look at my law reports from time to time and I will be interested to see whether, over the next five to 10 years, there is a problem where after conviction a judge says, ''Well, you may have been convicted but there is no material on which I can make a restraining order. I am not allowed to listen to further evidence.'' If that is the case, much to my dismay, we will have the Domestic Violence, Crime and Victims (Amendment) Bill 2007—or whenever it will be.

Vera Baird (Labour, Redcar)

Although I perceive that my hon. Friend the Minister thought that I was bowling him a googly, I was not trying to do so. A judge, post conviction, still has the right to adjourn sentence and to put bail terms that say, ''Do not go near your victim at all. I do not feel that I have got enough evidence from this single conviction to make a decision about a restraining order. I am now in a civil jurisdiction and I want to get more evidence from Mrs. A and Mr. B—people I have seen already—or from the neighbour who was spoken of but who was not present at court because her evidence was not admissible under criminal test.'' I cannot see that there could be anything to stop that happening. Therefore, it might be that there is no need for the provision that we are discussing to be in the rules. Judges tend to have a good deal of jurisdiction over how they run their courts.

Dominic Grieve (Conservative, Beaconsfield)

I note carefully the hon. and learned Lady's comments, and she might be right. I have a slight doubt whether that is the case, because the restraint order is a creature of statute in the criminal jurisdiction of the court. While a judge can always call following conviction for evidence to be given on voir dire in order to hear background matters relating to sentencing, I have a doubt that he can allow further evidence to be adduced on oath in an adversarial fashion subsequent to conviction, when he is supposed to have dealt with all that in the course of the trial.

David Heath (Liberal Democrat, Somerton and Frome)

Without having the legal expertise to back up my views, I share the hon. Gentleman's concerns. It would still be open, would it not, for somebody who has failed to secure the restraining order in the criminal court because of the restrictions that the Government are rather perversely applying at the point of making the order, to seek an injunction in a civil court on precisely the same grounds? It is not the case that someone would be entirely prevented from taking appropriate action—it just becomes more inconvenient, which is the point of the Government's proposals.

Dominic Grieve (Conservative, Beaconsfield)

I agree entirely. It clearly does not do that; it would still be possible to bring civil proceedings. We have tried to produce a streamlined procedure. Perhaps I am straying into issues for the

clause stand part debate, but it is not necessarily ideal that a number of Crown court judges have looked askance at me when they have heard about this matter and they have said that they are not happy about having to take on a jurisdiction with which they are not particularly familiar. Doubtless, like everybody else, they can be trained in order to do it. I have noted that one or two anxieties have been expressed in that department. That being said, and as I have alerted the Minister to what might be a minor flaw in the way in which clause 10 is drafted, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 82, in

clause 10, page 6, line 7, at end insert—

'(4B) Where the defendant and any person mentioned in the order are involved in Family Proceedings (as defined in section 63 of the Family Law Act 1996) either party may apply to that Family Court to vary, but not to discharge, the order and the court, if it is satisfied that it is appropriate for it to do so, may vary the order in so far as it affects the parties involved in the Family Proceedings or any child of either of them'.

I am indebted to Mr. Neil Addison for pointing out the difficulty that he perceives with the Bill as it stands, and I want to seek the Government's view on it. The concern is that, almost inevitably, as a result of this legislation, a great deal more restraining orders will be made, particularly in the context of a breach of non-molestation orders. Often, in domestic violence cases, that will relate to couples with children, so that the family division would normally be intimately connected with what is considered.

The purpose of the Government's proposal is to avoid a person—a victim—having to seek redress from criminal and civil courts, moving between the two and experiencing the inherent difficulties and the potential confusion in that process. Family courts are often better equipped to consider these issues in the round in the longer term. We will deal with that in discussing a later group of amendments. However, that is not the point of this amendment, which would give a concurrent jurisdiction between the criminal and family court on varying an order that has been made. I suggest that because there may be some sort of operational difficulty between the terms of a restraining order and access to children, or other matters that fall within the province of the family court. At present we do not have a unified court. We are told that that is a long-term intention of the Government, but it is not going to happen in the near future.

Where the family court would wish there to be a variation in the terms of the restraining order, it could not make such an order under the proposals that we are considering today. It would have to send the defendant, the victim and any other witnesses involved back to the criminal court to amend the order. That is an unnecessarily time-consuming and difficult procedure if our purpose is to introduce a more streamlined approach.

I understand that we are talking about separate jurisdictions and that although there is an overlap, there are different purposes for those. The amendment

proposes giving a family court the power to make a variation on an order where it is appropriate to do so in the interests of the family unit or children involved. It should be able to do so without the ping-pong process, which is unnecessary. The amendment itself would not create a unified jurisdiction—it could not. It would provide more ease of operation for those who are affected by the orders and give latitude, which is missing in the current proposals.

I hope that the Minister will give serious consideration to my proposal, which would improve, rather than undermine, the Government's proposals.

Chris Leslie (Labour, Shipley)

I understand why the hon. Gentleman suggests that, and it is perfectly reasonable for him to debate it, but there are difficulties with his proposal, because either party would be able to apply to the family court to vary the restraining order.

Although it is true that the purpose behind the clause is, in part, to save the victims of crime from having to bring separate proceedings in different courts, the principal ground and main reason for the proposal in the clause is that if criminal courts are hearing evidence of a particular problem with harassment and difficulties, they should be able to address them. The clause ensures that the criminal court has the capability to choose a restraining order for particular offences.

Restraining orders are made for specific purposes to protect a person from harassment. They are also made following evidence in a criminal case that leads the court to conclude that it is necessary to make an order to protect the victim from harassment. In those circumstances, that is properly a matter for the criminal courts. Family courts, which typically deal with matters such as divorce, adoption applications, child care and so on, are not best placed to vary a restraining order, made following a criminal case, that deals with harassment. That is why I do not support the amendment.

In addition, the logic of the amendment might well be to allow the converse situation to apply. If family courts were able to amend orders made in criminal courts, some might suggest that the latter should logically be able to amend orders made in the former—the family courts. We believe that that would be highly undesirable; just as criminal courts might lack the experience and expertise to make appropriate amendments to orders made in the family courts, so the family courts are not often well placed to amend restraining orders agreed in a criminal case.

When restraining orders need to be varied to allow a child contact order to function properly, an application to do so can be made to the criminal court. I accept that that will involve a separate set of proceedings, which is the regret that the hon. Gentleman voices. However, that is an entirely different scenario from the one that we try to remedy in the Bill, in which the criminal court feels it necessary to protect the person from harassment regardless of

whether the criminal case has ended in a conviction or an acquittal. On those grounds, I hope that the hon. Gentleman will not press his amendment.

David Heath (Liberal Democrat, Somerton and Frome)

I do not intend to press my amendment, but I hope that the Minister will give it a little more thought. He has accepted that the process will, of necessity, be more cumbersome than it would if the amendment were made. He knows from the debate on the previous amendments that, in making the order, the criminal court will not have evidence that may relate to family circumstances and child contact arrangements, as the family court will. Of necessity, the family court has a much wider view of such matters, not only because it will have heard a wider range of evidence, but because the interests that the family court protects are wider than those of the criminal court.

It is not inconceivable—indeed, I will go further: it is almost probable—that there will be instances in which a restraining order will be set in such terms as to cause operational problems with child access arrangements, to the detriment of the child. Given the Government's intention on this issue, it seems extraordinary that that should not be able to be remedied in a family court, and that the family court should have to consider the matter and go back to the criminal court, with the cost and inconvenience that that would incur, to vary an order.

Nobody suggests that that should work the other way round; I do not propose that. However, if we are serious about family courts and the specialist expertise that we are developing in them, we must allow them to do the job in the round and effectively. What is being proposed works against that. I am disappointed by the Minister's response. I have not given up hope that he will give the matter further consideration.

Sylvia Hermon (UUP, North Down)

Is it the hon. Gentleman's view that the real reason for the Minister's skilful deflection of the amendment is that clause 10 finds itself in part 2? This is the Domestic Violence, Crime and Victims Bill; clause 10 comes under part 2, which deals with crime. Does the hon. Gentleman agree that the real reason why the Minister has deflected the amendment is that restraining orders are intended to go way beyond family courts and domestic violence, and to be a sweeping broadening of the criminal law to include those who have no conviction and are going to be acquitted so that they can have a restraining order? That will completely undermine ASBOs.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. Lady is right on the breadth of the application. My amendment simply addresses the circumstances in which a matter would be before the family courts. That is self-limiting, because the wider extent of the application is not likely to be a matter that would interest the family courts. It is only where the family courts have a locus in the first instance that they would seek to vary a restraining order. However, the hon. Lady makes a serious point, which she may wish to pursue on stand part.

My amendment would improve the Bill and I hope that the Minister will consider it further. However, at this point, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 44, in clause 10, page 6, line 15, leave out first 'the defendant' and insert

'a party to the case'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following amendments:

No. 45, in clause 10, page 6, line 15, leave out second 'defendant' and insert 'party'.

No. 46, in clause 11, page 7, line 8, leave out first 'the defendant' and insert

'a party to the case'.

No. 47, in clause 11, page 7, line 8, leave out second 'defendant' and insert 'party'.

David Heath (Liberal Democrat, Somerton and Frome)

This is essentially a probing amendment. We are dealing with restraining orders on acquittal. At present, the judge can place a restraining order on the defendant in the proceedings only on the basis of the evidence that he has heard, or, in the case of a restraining order on acquittal, on the basis of any other evidence that may be put forward at that point in the trial. I suggest that the Minister considers replacing the ''defendant'' with ''a party'' to the proceedings.

I do that because I can envisage circumstances—albeit unusual ones—in which a person has been acquitted because a court has heard evidence that the offending behaviour, such as harassment, which was not to the point of the indictment before the court, was perpetrated not by the defendant but by another party to the case. It is not inconceivable that a successful defence might be made that the prosecution had matters the wrong way round and that the person who had been accused of harassing behaviour that constituted an offence was innocent because the other party to the case was at fault, or both parties were equally at fault, or a third party such as another household member was responsible for behaviour that might be the subject of a restraining order.

At present, the courts can place an injunction only on the defendant, on the basis of the evidence that they have heard. Other persons may be subject to criminal proceedings at a later stage as a result of evidence adduced during the trial under the terms of this part of the Bill. There may be other persons in the court about whom evidence has been heard and about whom more evidence could be led as part of the procedures, against whom an injunction—a restraining order—should be placed. I have a simple question for the Minister; should that not at least be considered as a possibility? I accept that it is not a probability in most cases, but if it were found that it was not the husband but an elder sibling who had been the perpetrator of domestic violence, and if the evidence against the elder sibling as it emerged had been overwhelming, the Crown Prosecution Service might well take a view that the next step would be to bring a prosecution against that elder sibling. It would be sensible for the court at that

point to apply a restraining order to that elder sibling, who might be a party to the case, in order to restrain their behaviour until proceedings could be brought.

If our interest is in the protection of all concerned, it does not seem entirely logical to restrict the capacity to make restraining orders simply to the defendant, who has, after all, been found not guilty of criminal behaviour and who therefore starts the proceedings as innocent as any other person in court. That person is innocent of the charges brought against him; that is an important principle of which we must not lose sight.

Dominic Grieve (Conservative, Beaconsfield)

I am rather sympathetic to the hon. Gentleman's point, although I do not think that what he is putting forward is workable in practice. In my professional experience, I have been present in court at the acquittal of defendants, and at cases in which defendants pleaded guilty, where the judge, as a result of what he has heard, has bound over witnesses or victims to be of good behaviour. I remember that once being done at the assizes, as they were then known, by a red judge at Shrewsbury in a case involving an alleged robbery. In that case, it was clear that both parties in what was a pretty trivial matter had behaved very badly. The bind-over seemed absolutely appropriate for all concerned.

The difficulty with the hon. Gentleman's proposal is that the witnesses are not parties to the case, and cannot be made parties to it. There is no way in which they could fairly be made parties to it, because they will have had no opportunity to be represented in the course of the proceedings. By changing ''the defendant'' to

''a party to the case'',

the hon. Gentleman is presumably widening the provisions to include any participant in the evidential process. That would lead to terrible procedural problems and the real risk that a person cannot have been properly represented while the proceedings were taking place. For that reason, the hon. Gentleman's amendment is unworkable, although I understand his intentions.

David Heath (Liberal Democrat, Somerton and Frome)

I predicted that that would be the case. I said that this was a probing amendment, because I could see that there would be considerable difficulties with it. I simply wish the Government to consider the possible application of a restraining order to others involved in a case. I am quite sure that my amendment is not a practical solution to that problem.

Dominic Grieve (Conservative, Beaconsfield)

I am grateful; I defer to the Minister and look forward to hearing his views on the subject. If one wanted go down the road that the hon. Gentleman suggests, one would move towards civil proceedings. There is no way of avoiding civil proceedings, because one has to bring the people against whom the restraining order is to be applied into the proceedings as parties. Otherwise, they are not parties, and they cannot be proceeded against.

Vera Baird (Labour, Redcar)

The hon. Member for Somerton and Frome is right to accept the argument about practicality. Indeed, I would suggest that what he proposes may be unlawful. The elder sibling in his

example may never have been involved, let alone represented, heard or had legal aid. There would have been no cross-examination on his behalf. We are talking about an erosion of the article 6 rights to a fair trial; although the hon. Gentleman means well, he has swept that all away at a stroke.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. and learned Lady must not misunderstand what I am saying; under the circumstances that I envisage, we are talking about proceedings at the conclusion of a trial where there has been an acquittal. As she pointed out earlier, that effectively opens up civil proceedings at the end of a criminal trial with the convenience of the trial judge being in charge of proceedings. Under the Government's proposals, further evidence could be heard at that point, and would inevitably be heard because it would be the right of any party against whom a restraining order had been made to be heard at that point, make legal representation and have legal aid if necessary.

Vera Baird (Labour, Redcar)

I appreciate and understand that entirely, but the apprehension that gives rise to the judge deciding that there ought to be proceedings taken against the elder sibling will have arisen in the course of evidence that the elder sibling may never have been in court to hear during the criminal trial. The urge for an injunction—in effect, a restraining order—against a sibling or any other witness will have to have come from what has happened in the course of the trial. It is easy for someone to blame someone else for what they are alleged to have done in course of a trial, as that person, even if present, will not be represented.

How does the judge fairly get to the position at which he decides that considering a restraint order is permissible? The only way it could be done would be by replaying all the evidence heard against the elder sibling in the civil proceedings after the trial. Therefore, civil proceedings might as well have been started in the first place. The proposal in the amendment is not at all practical, and I am sure that there would be repeated breaches of article 6—on the right to a fair trial—against the party who find themselves pilloried in a case with which they have never had any connection.

The bind-over provisions would require the person who is going to be bound over to agree to be bound over. That seems a much more sensible way in which to proceed. The hon. Member for Somerton and Frome should not forget that all such provisions contain an inherent power to bind a witness over if it is thought that there is any apprehension that that person will go on to breach the law. The amendment is therefore otiose.

The third, and the major reason, why I oppose the amendment is that I cannot think of anything more likely to discourage somebody who truly is a victim of domestic violence from pressing on with an allegation against the perpetrator than appreciating that if the perpetrator wants to make an allegation in court that the victim has misbehaved, she herself will become

vulnerable to the prospect of a restraining order, backed by criminal sanctions. That would be totally discouraging, and it flies completely in the opposite direction of the Bill.

Chris Leslie (Labour, Shipley)

I am indebted to my hon. and learned Friend the Member for Redcar and to the hon. Member for Beaconsfield for making the points that I was going to make. I have a four-page speaking note that I can gladly reduce to two because many of my arguments have been well aired by others.

I had not realised that the technical definition of ''a party to the case'' would not, as the hon. Member for Beaconsfield suggested, include the witness. In fact, the parties to the case would be the prosecution and the defendant. One of the oddities of amendment No. 44 is that we could end up with restraining orders on the prosecutor, which would be an interesting scenario, but not one that Committee members would necessarily welcome.

If a prosecution has been brought, there will be 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 although actions amounting to harassment or violence by the defendant are admitted or proved during the case, they are not themselves sufficient to secure a conviction for the offence with which he was charged.

The defendant will be legally represented in court and will have ample notice of the alleged conduct that will be examined in court. However, a witness to the case, who could well be the alleged victim, will not necessarily have had legal representation during the case and will not have had the same notice that their conduct will be examined in detail. The amendment, which would allow the courts to make restraining orders in respect of witnesses, is therefore unfair and might deter victims or witnesses from supporting prosecutions. As hon. Members have noted, the courts have the power to bind over witnesses, and, if there were sufficient ground, the police and the CPS could consider bringing prosecutions against them. There are therefore fundamental differences between the position of the defendant and the witness in the case, which means that it would not be appropriate to extend the power in the way intended by the amendment. Given that the arguments have been well aired, I hope that the hon. Member for Somerton and Frome will not press his amendment.

David Heath (Liberal Democrat, Somerton and Frome)

The debate has aired the issue. As I said earlier, there are difficulties with my proposal; I never intended it to be anything other than a probing amendment. I am not entirely clear about what would happen where the court overwhelmingly took the view that there was a need to restrain potential harassment at the end of a criminal trial, on acquittal, where the defendant was not likely to be the harassing party. In such circumstances, the matter should go to a civil court for fresh proceedings. I had hoped that there might be a way for the criminal court to take on the

functions of a civil court under those circumstances, but I hear, understand and agree with the legal arguments from both sides. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Heath (Liberal Democrat, Somerton and Frome)

I beg to move amendment No. 41, in clause 10, page 6, line 15, leave out 'an' and insert 'a temporary'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following:

Amendment No. 42, in clause 10, page 6, line 34, at end insert—

'( ) On the making of a temporary order, the court shall refer the matter to the appropriate family court for urgent consideration.'.

New clause 11—Restraining orders on conviction or acquittal of an offence arising out of domestic violence—

'(1) Any order granted under section 5 or 5A after conviction or acquittal of an offence arising out of domestic violence shall be a temporary order.

(2) On the making of a temporary order under this section, the court shall adjourn further hearing to the Family Proceedings Court or the County Court.

(3) The person or persons for whose benefit the temporary order has been made shall be entitled to be heard and represented by a lawyer at the adjourned hearing, and may lead, as further evidence, any evidence that would be admissible in proceedings under section 3.

(4) Domestic violence may include, but is not restricted to—

(a) actual or threatened physical, verbal, sexual, psychological or emotional abuse;

(b) intimidation, harassment or stalking;

(c) actual or threatened damage to property;

(d) threats of harm to or restriction of access to others, including children;

(e) unwarranted restriction of or interference with access to money, personal items, food, transportation and communication; or

(f) restriction of freedom of movement or access to potential sources of support;

by a person or his or her agent towards a cohabitant, relevant child or associated person as defined in section 62 of the Family Law Act 1996 (meaning of ''cohabitants'', ''Relevant Child'' and ''associated Persons'') and may be a single act or a number of acts forming a pattern of abusive behaviour.

(5) Abuse has occurred if the defendant causes a relevant child to witness or puts a relevant child at risk of witnessing the abuse of an associated person.

(6) The victim is not to be regarded for the purposes of subsection (3) as having caused or allowed the child to see or hear abuse or, as the case may be, as having put the child, or allowed the child to be put, at risk of seeing or hearing the abuse.'.

David Heath (Liberal Democrat, Somerton and Frome)

I am indebted to the Law Society for these amendments, which have been advanced by family lawyers who are concerned about the interaction between a criminal case and any proceedings that may be taking place in a family court.

The amendments help to make two points. First, although we do not have a unified jurisdiction, we have specialist judges in family courts who are better able to make judgments in the round. Secondly, there is a lacuna in the current proposals, which we have already explored to some extent. On acquittal, there is no bail order and therefore no restraining order on a defendant that can be attached to a bail order. The hon. and learned Member for Redcar is right to say

that there will, inevitably, be a delay between acquittal and making a restraining order, because there must be time to prepare evidence and for witnesses to make an application to the judge on the terms and rectitude of a restraining order. Therefore, there is a period when the victim is not adequately protected by any means.

One difficulty of the current proposals is that it would be difficult, prior to criminal proceedings, for a victim to secure a civil court injunction that would serve the same purpose. However, there is a problem arising from that: they would be unlikely to get legal aid for such a purpose if a criminal prosecution were forthcoming. Therefore, nothing persists to provide the protection to the victim in the period between acquittal and the restraining order being made by the criminal court.

Under the amendments a temporary order should be available, prior to referring back to the family court for urgent consideration. That would ensure that the family court has the capacity to take into account in such proceedings all the circumstances of the family, the victim and the defendant, and all the circumstances that enable a proper solution to be applied. It is right that the person should have access to that and, if required, to legal aid to secure those matters before the civil court.

One argument that has been advanced against the Government's proposal is that the route of appeal becomes much more complicated if more than one jurisdiction takes part in the procedures. I do not accept that because when the appeal has moved to the family court, that court would take responsibility for the terms of the order. That would be the point of making the order rather than the previous criminal proceedings, a matter that would be clearly understood by all concerned. There is no obvious reason why the family court—or any other civil court—should not hear new evidence. In those circumstances, it would be perfectly proper to do so. Indeed, that is one of the benefits of the system.

There is another problem with making the order in a criminal court. If the defendant is held to be represented at all, it will probably be by the CPS. The prosecutor is a criminal lawyer. The prosecutor has a narrow focus on the terms of the charge before the court. Yes, the interests of the lawyer are to secure justice and, within that context, to secure the prosecution, but he is not interested in the future relationship between the parties to the case. The lawyer is neither interested in the circumstances of the family nor in the holistic approach, which is of considerable importance. That is the basis on which I tabled the amendments.

New clause 11 contains a definition of domestic violence, and I do not propose to rehearse yet again the arguments for a viable definition, save to say that I still believe that it would improve the Bill if it contained one. The new clause gave me an opportunity to put one in, and I hope that the Minister will not lose sight of the insistence of many members of the Committee that a viable and unambiguous definition of what constitutes domestic violence would improve the Bill.

I hope that the Minister will consider the amendments, which have been proposed by practitioners in the field. They recognise the difficulties of what is involved and want the legislation to work more satisfactorily than it might do, as drafted.

Chris Leslie (Labour, Shipley)

New clause 11 would make restraining orders made on conviction or acquittal for offences of domestic violence have only temporary effect. In making such an order, the court would be required to refer the case to a family or county court for further consideration. We have heard the arguments advanced by the hon. Member for Somerton and Frome in favour of such action.

Amendments Nos. 41 and 42 would have a similar effect. They would make all restraining orders made on acquittal have temporary effect. Similar amendments were tabled in the other place, and the Government made it clear that we were opposed to referring restraining orders made in the criminal court to the civil courts for further consideration. When considering the amendments, it is important to bear it in mind that restraining orders under the Protection from Harassment Act 1997 are civil, preventive 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, which are offences of harassment and putting people in fear of violence. That includes cases such as stalking by a stranger.

The Government's aim in clause 10 is to extend the protection offered by the restraining orders to cover cases when someone has been convicted of any offence and to allow the courts to make restraining orders when there is insufficient evidence to convict, but when the court considers it necessary to do so to protect the victim. Our proposals will obviously help victims of domestic violence, but they will also help in other types of cases that would not come within the remit of the family court and when it would not be appropriate for it to consider the case. We can envisage such circumstances in assault or criminal damage cases, for example.

I understand that there might be concerns that clause 10 is moving into the criminal court matters that might be more properly dealt with in the family court, where judges and lawyers are trained in family rather than in civil matters. However, that is not the case. The Protection from Harassment Act 1997 has never dealt only with family law matters, and it was built on the assumption that a criminal court could and should be able to make a civil order on conclusion of criminal proceedings. Clause 10 simply continues that principle. If the case raises family law matters, there should be separate family proceedings to deal with them. To hand over part of the criminal proceedings for the family court to reconsider would not offer any further protection for victims and defendants alike. Therefore, we believe that new clause 11 is unnecessary.

Amendments Nos. 41 and 42, which would remit to the family court all restraining orders made on acquittal, regardless of whether it was a case involving domestic violence, would be unworkable in practice, because they would send to the civil court even those cases that had nothing to do with domestic violence and where the parties were, perhaps, unknown to each other. Obviously, it would be absurd for civil courts to have to reconsider a restraining order in a case of stalking, or harassment or putting someone in fear of violence where the parties were not known to each other.

Dominic Grieve (Conservative, Beaconsfield)

What steps will be taken to ensure that in a case where someone is prosecuted, convicted or acquitted of an offence that is related to domestic violence and where family proceedings may be running in parallel, the court knows what is happening? Although things may have greatly improved, experience suggests that the channels of communication between the family court and the Crown court are often likely to be poor, if not non-existent. It is clearly desirable to ensure that the Crown court does not make orders that duplicate ones that may be in existence in family proceedings.

Chris Leslie (Labour, Shipley)

That point has occurred to the Government as well as to the hon. Gentleman. He asked what steps we are taking to address those issues. I understand that a working party has been established, which involves not only the president of the family court but my right hon. and learned Friend the Solicitor-General, to examine the relationship of issues between the criminal and family jurisdictions. I have no doubt that my right hon. Friend has heard the hon. Gentleman's point and will look to take it forward in that working party.

There are other drafting arguments about amendments Nos. 41 and 42. I shall not bore the Committee with them. I have made the point as clearly as I can that we cannot simply restrict the temporary nature of the orders, and we should not have an automatic referral to the family courts, not least because of the scope of restraining orders occurring in those wider criminal proceedings. I hope that the amendment will be withdrawn.

David Heath (Liberal Democrat, Somerton and Frome)

Uncharacteristically, the Minister does not appear to have read the amendments to which he is referring. New clause 11 clearly qualifies the temporary orders as those that are

''arising out of domestic violence''.

Therefore, it is complete nonsense to suggest that matters that would normally come within the scope of the Protection from Harassment Act 1997 and that were not cases of domestic violence would be referred to the family court. They would not be. It is clear that the only circumstances in which an order would be temporary under this provision would be where it were a matter arising out of domestic violence, as defined in new clause 11. A large part of the arguments that the Minister was given to give to the Committee do not hold water and are based on an incorrect premise.

There is still potential for confusion. There is also an undermining of the whole purpose of the family courts and the edifice upon which they have been built, which is that they are centres of expertise where people understand the complex issues involved in relationships and make judgments based on that understanding. Simply to allow the criminal courts as a matter of convenience to usurp the authority of the family courts would be a retrograde step. I understand the need for and expediency of allowing criminal courts to take action under certain circumstances, but it would be better for that then to be subject to mature reflection by a tribunal that exists for that specific purpose and that ensures not only the integrity but the comprehensiveness of the process so that the right solution can be achieved for a particular relationship in a particular set of circumstances, especially where children are involved, as they so often are in cases of domestic violence.

I reject the Minister's arguments for dismissing the amendment because they are based on a false premise, which I hope I have exposed. I will not press the amendment to a Division today, but I will wish to return to the matter on Report. I hope that the Minister will take the trouble to read the amendment carefully, and to understand its purpose. It is a legitimate and serious purpose; indeed, I expect nothing less from those who advised me on this matter. I hope that we will be able to make further progress on this at a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Vera Baird (Labour, Redcar)

I have four small points on which I seek reassurance.

First, there is the lacuna pointed out implicitly in the amendments of the hon. Member for Somerton and Frome. There is concern that there may be a gap in time when the victim will not be protected after somebody has been acquitted of a criminal offence and before the evidence on which a restraining order can be considered has been served on him or her to give them an opportunity to deal with it. If the defendant has been convicted, there can be bail pending sentencing that can include the restraint order, so he can be ordered not to go near the defendant. However, if he has been acquitted, his bail term has come to an end and, although I accept entirely the Minister's aim that the material on which the application for a restraint order post-committal will be made ought to be served in the proceedings if possible, there will be times when events have moved on during the course of the trial and issues have been raised in it so that it is not practical to give the defendant adequate notice to be able to deal with all matters straight away, and an adjournment would be inevitable.

The power in new section 5A is to make an order prohibiting the defendant from doing anything if it is considered necessary to do so, and, if it is possible under section 3 of the Protection from Harassment Act 1997 on the way in which evidence can come in on a

civil basis, to bring evidence to justify a temporary injunction. There is also a power to have a temporary injunction under that Act. My guess is that those provisions combine to allow a court before which the restraint order will soon be heard to make a temporary restraining order until the evidence is heard, which will be sufficient to protect the victim from any further assaults or misconduct in the meantime. That is obviously a key to the purpose of this legislation, so I would like to be reassured that I am right about that, or that by some other route, safety would be guaranteed at the point of acquittal.

From the other vantage point, it seems clear that a restraining order can be, for as long as is necessary for the protection of the victim, wide enough to direct that the defendant should do anything necessary. That means that we will have to face the possibility, perhaps frequently, that somebody in a domestic violence case who is acquitted of a criminal offence will be ordered to leave his home under these proceedings. Is that intended? I do not have great concerns about the matter; the alternative is that the complainant would go straight to the civil court for that to happen. However, we have to be ready to face the fact that, on acquittal, somebody may be ordered to leave their home. I want to be sure that that is intended and that I have not understood the matter too widely.

I also seek a reassurance that, on acquittal, when a criminal court is functus officio—it has done its job; the criminal proceedings are at an end—the defendant's legal aid will carry on, so that in what are now purely civil proceedings, criminal legal aid will none the less cover the person in question so that he can continue to be represented.

Lastly, and not altogether frivolously, although with a slight twinkle in my eye for a reason that will become clear, I mention new section 5A(6), which states:

''A person made subject to an order under this section 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 section 5''.

That means following on a conviction, and it seems to suggest that an appeal against a restraint order at a magistrates court would go to the Crown court. Those acquainted with the Court of Appeal criminal division will be amused to appreciate that it also means that a restraining order in the Crown court would be appealed to the Court of Appeal criminal division. That would be a civil order, heard on the civil standard, and it might involve all manner of family considerations; I wonder whether their lordships know what is coming.

Chris Leslie (Labour, Shipley)

I am sure that their lordships, as ever, know what is coming. It is important that we do not rehearse ad nauseam the purposes behind clause 10. We should simply underline the fact that this is a major step forward, designed not only for domestic violence cases, but for preventing harm to the victim. Although restraining orders are preventive rather than punitive, I believe that it is important to extend their availability beyond the two offences in the 1997 Act.

My hon. and learned Friend raised important questions. It is right that we should try our best to make sure that the presumption is for the victim's immediate safety in such situations. As I said, I am not the expert that she is on the legal procedures. A parallel consideration of the rules of court is going on, to establish what changes might be necessary to make the arrangements come into place. However, the hon. and learned Lady says herself that the provision for injunctions under section 3 of the Protection from Harassment Act 1997 means that a court can provide that protection at the outset.

My hon. and learned Friend's point about the right of appeal against restraining orders is important. The arrangements that she suggests are indeed those envisaged. I am sure that the courts would be able to cope and adjust flexibly to the changes in policy that we envisage.

My hon. and learned Friend asked whether restraining orders could prohibit any particular activity. They have a wide prohibitive scope. However, they could not be used to order a defendant to do something, although the court could use them to, say, prevent someone from entering a family home if it were necessary to protect a person from harassment. One of the beauties of the restraining order is that it has that flexibility and scope.

Under this clause, we have had a useful run though many of the facets of restraining orders and the ability to extend them. By and large, I sense that Committee members see the benefits, especially for the victims of crime, that will flow from allowing the courts extra scope to act when they hear specific evidence on any offence, not least in circumstances in which the defendant may be acquitted. It is right that we shift the balance in favour of the victim, but, of course, we have the relevant protections in place in law.

Question put and agreed to.

Clause 10 ordered to stand part of the Bill.

Clause 11 - Restraining orders: Northern Ireland

Sylvia Hermon (UUP, North Down)

I plan to spend a few moments on the clause, which extends restraining orders to Northern Ireland. Part of me, but not all, is pleased that for once the Government have remembered Northern Ireland in relation to criminal law. As I said in debate on clause 10, we in Northern Ireland do not even have antisocial behaviour orders. I say that with great regret, because criminal law was not devolved even during the brief time that we had an Assembly, which was suspended in October 2002. Responsibility for criminal law in Northern Ireland has remained in Westminster since 1972. Last year, I was one of the first to complain that only a small portion of the Criminal Justice Act 2003 extended to Northern Ireland. However, we have a

listening Home Secretary. Although he comes in for a lot of criticism, he is much admired in Northern Ireland for his extension of some provisions there.

Turning to restraining orders, the Constitutional Affairs Minister repeatedly made reference to the fact that the Protection from Harassment Act 1997 goes wider than domestic violence. That is absolutely correct. It deals with pursuing a course of conduct that leads to harassment and with the fear or threat of violence that can arise from harassment. I therefore have difficulty with the positioning of clause 11. I urge Committee members to remember that we have moved on from domestic violence to the crime section of the Bill. Although our debates are couched in terms of domestic violence, I urge all Committee members to pay attention to the wider remit of clause 10 and, in Northern Ireland, clause 11.

I should like to assist the Minister on two points. First, there is the question of references to the Northern Ireland Human Rights Commission. I was astounded—to put it mildly—when during a sitting last week I mentioned the NIHRC to the Minister and he was taken aback to hear that we have one at all in Northern Ireland. It is a statutory human rights organisation, not just any old human rights organisation. It was set up by the Labour Government under the Northern Ireland Act 1998. It has a statutory remit to be consulted and to advise the Government on the adequacy and protection of human rights. Its remit extends to all legislation that applies to Northern Ireland.

I again ask the Minister whether he has consulted the NIHRC. I should add, lest it be thought that I am the NIHRC's chief fan, that I do not agree with half of what it says. However, given its remit, it ill behoves the Government not to have consulted it, particularly on clause 11. I say that in the context of the fact that, long overdue, the Government have just completed their consultation period on ASBOs, which were introduced in the rest of the UK in 1997.

I am greatly worried that, under the clause, a person might be punished without a conviction for any offence, as long as their behaviour comes within the definition of harassment. The Minister has said that a restraining order can apply whenever there is criminal damage to property. Let us suppose that a judge in Northern Ireland has the option of issuing an ASBO or a restraining order. Will the Minister explain why such a provision is being drafted now and which factors will be uppermost in the mind of the judiciary in Northern Ireland? I accept that that question is hard to answer, but will he explain the guidance and the factors that a judge in Northern Ireland will take into account when deciding whether to issue an ASBO or a restraining order?

ASBOs are intended to ensure that a young person or a not so young person does not get a criminal record, but now restraining orders will be issued more frequently than ASBOs, and more people will therefore have criminal records. I need assurance from the Minister that the Northern Ireland Human Rights

Commission has been consulted. What advice did it give about clause 11? Can he reassure me that ASBOs are still worth while in Northern Ireland?

Chris Leslie (Labour, Shipley)

I appreciate the points made by the hon. Lady. It is important to take note of the fact that, although the provisions under clause 11 are identical to those under clause 10, they apply to Northern Ireland and we must consider them in that context. Although the provisions are identical, there is a different legislative context in Northern Ireland—although the point that the hon. Lady made about criminal law matters not being devolved but held at Westminster is correct, hence the fact that we are discussing them now.

It is important at the outset that I deal with the issues raised by the hon. Lady and reflect especially on the fact that restraining orders are not a punishment, but a preventive means of protecting the victim of a particular crime or a particular individual. Such matters came out of the consultation paper ''Safety and Justice'', which suggested that that was a good way forward. We would be wrong not to offer the benefits of the change in England and Wales to Northern Ireland.

The Solicitor-General and the Attorney-General have been working closely with the Director of Public Prosecutions in Northern Ireland, especially the domestic violence lead, Raymond Kitson. I pay tribute to them for their work. There has been a close dialogue between those involved in such matters in Northern Ireland and those here. I am aware that the Northern Ireland Human Rights Commission exists in a statutory context, but although it was established under the Northern Ireland Act 1998, it was not consulted specifically on restraining orders. However, it was consulted on the wider proposals to extend the Bill and its domestic violence provisions to Northern Ireland. That dialogue continues. Obviously, it is for the House to scrutinise the provisions step by step and to make specific decisions.

I am not a legal expert in this respect, but I understand that in Northern Ireland there is a closer working relationship between the civil, family and criminal sides in the same court environment. In a sense, therefore, many provisions will be somewhat easier to operate.

An order was laid yesterday for debate under the affirmative procedure to introduce ASBOs in Northern Ireland. I am hoping that there will be a debate on that before the summer recess, although I cannot guarantee the parliamentary timetable. I hope that reassures the hon. Member for North Down that we are trying to progress on extending to Northern Ireland some of the extra protections that have been available in England and Wales. Clearly, however, the relevant order has yet to be debated and agreed, and I would not want to pre-empt that process.

In general, I hope that the hon. Lady agrees that many issues of domestic violence and of the wider protection of persons from harassment or the fear of violence apply equally in Northern Ireland and in England and Wales. It is important that we have these provisions. We are seeking to achieve a realignment,

regardless of the jurisdiction. That is why clause 11 is in the Bill and I hope that it will be allowed to stand part of it.

Sylvia Hermon (UUP, North Down)

I am most grateful to the Minister for his response. I welcome the order in respect of ASBOs that was laid yesterday. It was challenged—judicial review was sought by the Northern Ireland Commissioner for Children and Young People because children had not been consulted—but the challenge did not succeed. It is welcome news to me that the legislation to introduce ASBOs was laid yesterday. Unfortunately, it will be done through an Order in Council so the provisions will not receive the proper scrutiny on the Floor of the House that it might otherwise have done.

The Minister is right that Northern Ireland is a small jurisdiction; we have 1.7 million people and the main courts are in Belfast. We only have nine High Court judges but legislation that was passed in this place last Thursday means that their number is to be increased by 10—a significant increase. It is, however, a pity that it was done last Thursday, before the judicial appointment commission could get up and going and ensure that the judiciary, in particular the High Court, was representative in terms of gender and ethnicity. There is not one female judge or one member of an ethnic minority in the judiciary in Northern Ireland.

I am pleased that restraining orders are to be made available in Northern Ireland through the Bill. I will closely examine their operation and how many are issued compared with ASBOs. I hope that the Government bear in mind the difficult circumstances that we have in Northern Ireland, particularly coming into the marching season. Where one might have anticipated ASBOs being issued, we may now have restraining orders. I will watch with interest. Perhaps when the Minister visits Northern Ireland he will come with me to visit the Northern Ireland Human Rights Commission and we will take it from there.

Question put and agreed to.

Clause 11 ordered to stand part of the Bill.

Clause 12 - Application by prosecution for certain counts to be tried without a jury

Dominic Grieve (Conservative, Beaconsfield)

I beg to move amendment No. 89, in clause 12, page 8, line 5, at end add

'of all matters against the Defendant.'.

We now come to a part of the Bill that is fairly controversial. I hope that I will be excused if I make a few general remarks. Doing so might enable us to shorten the debate on clause stand part, but that is dependent on the Government's response, particularly on Government amendment No. 57, which we shall discuss in a moment and which fills me with gloom and despondency.

The Solicitor-General will recollect that during the passage of the Criminal Justice Bill through the House any restriction on the right of trial by jury was fiercely contested, and that at the end of the day the

Government had to back down. They used the face-saving device of having one area that involved lengthy trials being subject to a double-lock mechanism of the resolution of both Houses of Parliament—something that is most unlikely ever to happen. I said to the Minister at the time, and I say it again, that the official Opposition accepted that there was a serious issue in relation to lengthy trials with multiple counts—indeed, not even lengthy trials but those that required multiple counts to be stated upon the indictment for the purpose of enabling the full gravity of a defendant's offence to be made clear.

In the past, such cases were dealt with by offences being taken into consideration at the closure of the trial on sample counts only. However, after court decisions, which were inevitable, in the late 1990s it was firmly established that unless a defendant accepted other offences being taken into consideration, they could not be considered by the judge when he formed an overview of the criminality of the defendant on conviction. We were left with an indictment loaded with multiple counts saying much the same thing, or we proceeded on sample counts only, which might not be representative of the defendant's criminality. If the defendant refused to accept the other offences being taken into consideration, he could be sentenced only on offences of which he was convicted. I have always accepted that that was unsatisfactory.

If somebody lays their hands on a credit card and uses it 150 times, he is obtaining property by deception each time he uses it and is thereby committing 150 separate offences, and if the jury were required to consider all 150 counts, it would be placed under a considerable burden. In the past, that would have been unnecessary because the defendant would have been charged with half a dozen counts—one at the start of the period when he obtained the credit card, several in the middle and one at the end—and the judge would have been invited to take the other counts into consideration on conviction. In the old days, even if the defendant said that he did not accept that, the judge could still impose a sentence on the basis that he had committed the offence, but he can no longer do that.

That reinforces my view that there is a justification for a change to be made to the law in respect of such circumstances. However, we have always been anxious that that change should not simply be a device whereby the Government open the floodgates and restrict the right to jury trial. The devil is in the detail. When I first read the clause I was not impressed, because it was drafted—perhaps it is modern drafting practice—in such a way that it gave the impression in clause 12(1) that the prosecution could

''apply to a judge . . . for a trial on indictment to take place on the basis that the trial of some, but not all, of the counts included in the indictment may be conducted without a jury.''

The first message is wrong, but I accept that it is further qualified as one reads the other subsections.

My first amendment, No. 89, deals with a discrete point and, if we address that quickly, we can, perhaps, deal with the much wider point, which is the

Government's intention to get rid of an important Lords amendment. I hope to be able to speak to that this morning, because I have to attend a funeral this afternoon.

One provision included by the Government in subsection (6) is that the judge, when deciding whether to allow certain counts to be tried without a jury if a person is convicted with a jury on the sample counts,

''must have regard to any steps which might reasonably be taken to facilitate a trial by jury.''

I assume that that means that the judge would discuss the matter with the prosecution, saying, ''Look, you have 60 counts on this indictment and you want to try 10. Wouldn't it be better to select 15 and drop the other counts, giving me sufficient basis on which to sentence? Some of the counts amount to a total criminality of £50,000, whereas the other counts only total a further £3,000. Will you please consider that?'' I assume that that is what subsection (6) is intended to achieve, but I am not sure that it does so. I tabled the amendment to make it clear that the judge has to consider what can be done to facilitate a trial by jury

''of all matters against the Defendant.''

I hope that that is already implicit in subsection (6), because I assume that that is what the Government intend. The Minister might agree with me that subsection (6) is slightly nebulous. What are these steps that

''might reasonably be taken to facilitate a trial by jury''

—and a trial by jury of what? Subsection (6) does not say. I assume that it must be of all matters against the defendant, in which case I urge the Minister to accept my amendment, which in no way detracts from what he is trying to achieve, but makes it clear what it is that the judge must set out to do.

I hoped that I would have an opportunity to speak to the Government amendment to the clause, but I fear that I will not. If I am not here to respond later, I would like to place on record that I believe that the House of Lords has correctly amended clause 12—

Joe Benton (Labour, Bootle)

Order. I need to point out to the hon. Gentleman that we are not discussing the Government amendment.

Dominic Grieve (Conservative, Beaconsfield)

I appreciate that, Mr. Benton, and I apologise. I hope that the Government will accept the Lords' amendment.

Harriet Harman (Labour, Camberwell and Peckham)

As the hon. Gentleman says, this is a small amendment. He is trying to draw out issues that he rightly says we need to discuss in relation to the Government amendment and issues that surround the context of clauses 12 to 16, which deal with multiple offending.

Perhaps I can assist the hon. Gentleman by explaining that we will resist his amendment on two grounds. First, subsection (6) serves as belt and braces for the provision in subsection (3), which says:

''The first condition is that the number of counts included in the indictment is likely to mean that a trial by jury involving all of those counts would be impracticable.''

I was trying to short-cut my point there, and I will have to refer back to that later.

We agree that jury trial referred to in clause 12(6) means a trial of all the counts, as it is the inability to hold such a trial that would justify using the two-stage procedure. We are therefore not persuaded that the drafting change in the amendment is necessary. One of the things that subsection (6) could apply is the severing of the indictment and holding two separate trials. Subsection (1) states that the judge must make an order for the trial

''to take place on the basis that the trial of some, but not all, of the counts included in the indictment may be conducted without a jury.''

Three conditions then follow. The amendment does not help and is unnecessary. Clause 12 exists to prompt the judge to consider whether there is any other way of dealing with the counts. That addresses the point raised by the hon. Gentleman about whether the indictment should be severed.

Dominic Grieve (Conservative, Beaconsfield)

The Solicitor-General has not completely persuaded me because there is a difference between the trial of all the counts and the trial of all the matters against the defendant. I highlighted that in my opening remarks when I said that, without this provision, I would normally expect in a criminal trial with multiple counts for the judge to discuss with the prosecution and defence whether it was possible to reduce the counts on the indictment. The classic way of doing that is by saying, ''Some of these counts don't really add anything, as they are very minor matters. He obtained £5, and that is of no consequence, but on the other day, he obtained £15,000.'' That is why I specifically used the expression ''all matters'' not ''all counts''. It must logically follow that if the judge is confined to examining how to have a trial of all the counts, he must have severance; or he must say, ''There are not so many counts that the jury can't handle it, and the jury will be able to handle it''; or he must say, ''We will have a trial of some of the counts and the rest I will deal with on a sample basis.'' I thought that my amendment added something, but the Solicitor-General has partially reassured me on the Government's intention, so I will not press it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Harriet Harman (Labour, Camberwell and Peckham)

I beg to move Government amendment No. 57, in

clause 12, page 8, line 14, leave out from beginning to 'and' in line 15.

I am very sorry that the hon. Member for Beaconsfield is filled with gloom and despondency—he need not be. I assure him that we are not talking about a restriction of the right to jury trial, and it is certainly not opening the floodgates.

Let me set out for the hon. Gentleman the reasons why we want to amend subsection (9) by removing paragraph (b), which was put into the Bill in another place. The purpose of the two-stage procedure is to replace the old sample count procedure. We are not creating a new procedure. We are regulating a procedure that has been going on since time

immemorial but that the courts said needed to be sorted out and put on a proper footing. The old sample count procedure was disapproved by the Court of Appeal in the case of Kidd. This is not intended to do any more than provide a proper statutory replacement for the former procedure. If he could live with the former procedure—albeit recognising its shortcomings—he ought to be able to live with this one, because it simply improves on, and give better safeguards for, what used to be the case.

A replacement is needed. We cannot leave the situation as it was left by Kidd; I accept that the hon. Gentleman has acknowledged that. Where alleged criminal behaviour consists of activity that is repeated many times against a long series of victims, it is impossible for the number of counts that can reasonably be included in the indictment to represent—or come anywhere near representing—the scale of the alleged criminality.

That has two unfortunate results. First, even if the defendant is convicted of all the counts on the indictment, the court may be unable in sentencing him to take account of more than a fraction of his offending. For example, as the hon. Gentleman said, if a scam nets only a small profit each time, the proceeds of the counts of which someone is convicted on the indictment might add up to only a couple of thousand pounds, whereas the total profit realised by the fraud might run into six figures; the Serious Fraud Office feels very strongly about that. In those circumstances, as the indictment would not reflect the totality of the offending, the court would be unable to impose a sentence that bore any relation to the seriousness of the crime. It is common ground that that is unacceptable. There is another issue that gets to the point about the £10 and the £1,000. We have to think about the situation of the victim: in the totality of offending, £10 might be a small amount, but it might be a big thing for the individual victim.

The second unfortunate result is that in such a case most of the victims will be denied the satisfaction of knowing that the defendant has been tried and dealt with for the offence committed against them. That is also unacceptable, and it causes a lot of complaint. It is not good enough for the judges and prosecutors just to talk together about the global figure, and to forget that the victims want justice. The public want that, too.

I quite understand that the purpose of subsection (9)(b), which was added in another place, is to ensure that the courts adopt a narrow interpretation of what is covered by the two-stage procedure. Our objective is the same. That is why we have the three conditions set out in subsections (3), (4) and (5).

I have explained the sort of circumstances in which we expect the two-stage procedure to operate. There is no intention of its being used to deny a jury trial in respect of cases that would now receive one. All we want is to allow cases to go before a court that at present cannot do so, but which were able to pre-Kidd.

Nor is there any intention that defendants who have been tried by jury on one count should be tried for other, tenuously related offences by a judge sitting alone. The hon. Gentleman expressed that concern—

he was obviously thinking about that sort of thin end of the wedge. Let me put his mind at rest. Rule 9 of the indictment rules—I have no doubt that he is familiar with them—will still apply. It provides that in order to be included on one indictment, charges must

''be founded on the same facts, or form or are a part of a series of offences of the same or similar character.''

We are saying that if we have indictment rule 9 and the three conditions that are set out, we do not need paragraph (b).

David Heath (Liberal Democrat, Somerton and Frome)

I rise to make the rather obvious point that subsection (9) sets out not conditions but a definition. If the Solicitor-General wants a definition, it should be a proper definition. If she does not, subsection (9) could be left out altogether. However, removing paragraph (b) creates an incomplete definition, which is surely unsatisfactory.

Harriet Harman (Labour, Camberwell and Peckham)

The distinction between conditions and definitions can be artificial.

I want to urge another point on the hon. Member for Beaconsfield. Committee members could identify all sorts of preconditions—we could think ourselves up hill and down dale—but at some stage we have to decide where the balance lies between legislative prescription and judicial discretion. Usually, I err on the side of legislative prescription, but given that the judges will be familiar with the circumstances and with rule 9, and that they will be guided by the conditions defining what sort of cases will get through and be regarded as sample counts, I do not think that we need the belt and braces of (9)(b).

Nor is that all: there are other safeguards. Before a judge may order the use of the two-stage procedure, he must decide that jury trial of the whole indictment would be impracticable. We will not even get there unless the decision is made that the jury trial on all the counts of the indictment would be impracticable. That is condition No. 1.

Vera Baird (Labour, Redcar)

That is reassuring, but I am not sure that it is reassuring enough. To say that the judge has to be satisfied that it is impractical to try all the counts is a very high test. In a case of 200 counts, nobody would have an interest in trying all of them. If one wanted to establish the gravamen of a case with, say, 200 counts of fraud, and some counts were bigger than others, the person in question would not get six months for one count and 199 times six months for the rest.

There comes a finite time at which it is not in anybody's interest to go on to the bitter end and keep trying extra offences, which will not add a penny's worth of sentence. It is a very imperfect test that requires the judge to decide that one cannot try all of an indictment, when in reality nobody would think of doing that. A narrower test needs to be considered—this one is too wide.

Harriet Harman (Labour, Camberwell and Peckham)

Subsection (3) sets out only the first condition; one would move on to the second and third conditions and then have to be compliant with article 6 of the European convention on human

rights. We need to remember that we are improving the safeguards that were absent before Kidd. We do not want to go over the top and find that we cannot have what we all agree we need to have: similar sample counts tried on the same indictment separately.

Dominic Grieve (Conservative, Beaconsfield)

I appreciate the distinction, and the point between us may be narrow. Clearly, the safeguard of judicial discretion might prevent the mischief that I see could arise from the way in which the clause is drafted. However, the trouble is that rule 9, which the Solicitor-General prayed in aid, is not an adequate safeguard, because under the Bill it would allow a jury trial to take place on obtaining by deception with one card, and would subsequently allow a completely separate card to be the subject of trial without jury because it had been linked in one indictment. To my mind that is completely unacceptable. Subsection (9)(b) was carefully inserted in the other place to prevent that from happening.

Harriet Harman (Labour, Camberwell and Peckham)

The hon. Gentleman ought to find reassurance on that point in subsection (4), which reads as follows:

''The second condition is that, if an order under subsection (2) were made, each count or group of counts which would accordingly be tried with a jury can be regarded as a sample of counts which could accordingly be tried without a jury.''

We come back to whether something is genuinely a sample. If the hon. Gentleman is not reassured by subsection (4), I point out that the judge will have to go through subsection (9)(c), which says:

''the judge considers that the sample count is a sample of the other counts.''

Dominic Grieve (Conservative, Beaconsfield)

I think I know what a sample means—we lawyers use the phrase ''sample count'' all the time, but that phrase is not defined. A sample count is what a judge considers a sample count to be, and we have to be careful under the clause to ensure that the absence of a definition cannot be abused. The Solicitor-General has not said why subsection (9)(b) prevents or impedes the interests of justice, which she is trying to further, as am I. If she gave me a good reason against the provision, I would be open to persuasion; but at the moment I am not persuaded, and I think that it is a good provision.

Harriet Harman (Labour, Camberwell and Peckham)

Moving swiftly on to deal with the very point that the hon. Gentleman raises, I agree that we do not have a definition. We have the name, ''sample count'', and we have conditions, which provide enough safeguards and are acceptable.

The reference to the familiar expression ''sample count'' is deliberate—we intended to refer back to the pre-Kidd procedures. Judges know perfectly well what a sample count is. We are confident that the issue can

safely be left to the judiciary's discretion. The Law Commission is content with the approach that we have taken, although I concede that it was not its original proposal.

Subsection (9)(b) is unhelpful for two reasons. First, cross-admissible evidence is evidence of one offence that tends to show that the defendant is guilty of another. Evidence has to be probative of an issue in the case in order to be cross-admissible. The sort of fraud cases that the hon. Gentleman said were particularly suitable for the two-stage procedure simply consist of repeated similar allegations that are not likely to be relevant to the central issue of dishonesty. The fact that, for example, the defendant has made the same allegedly false representations to scores of victims does not tend to show that he has been dishonest. That would therefore lack the probative element that is so important for admissibility, and such evidence would fall by the wayside.

I now come to the other and secondary reason. The whole addition to the clause is unnecessary, but it is also problematic. The main problem with it is the one that I mentioned—namely, the fact that the evidence might be missing the probative element. However, I shall throw in the other reason, just in case I have not yet persuaded the hon. Gentleman. The addition to clause 12 is also unhelpful for reasons of timing. The judge would be required, at the preparatory hearing—that is, before the evidence had been led—to make a preliminary decision on the issue of cross-admissibility between the link counts and the sample count. That would be more difficult at that stage. The judge could only take a preliminary view that might change during the hearing of the trial evidence. However, once he had done so, it would be too late to use the two-stage procedure, because he would have fallen foul of the admissibility test. The Government therefore concluded that the addition to subsection (9) should be removed, and I ask the Committee to support the Government amendment.

Dominic Grieve (Conservative, Beaconsfield)

In the short time available, I can only tell the Solicitor-General that, unfortunately, I remain unconvinced by her arguments. I do not see the mischief in (9)(b) that she describes. It appears to me that, in the sort of case that I described earlier—that of multiple obtaining on a single card—cross-admissibility would immediately be present. That is precisely the sort of case that ought to be approached from such an angle. We do not want someone convicted of an offence to be tried without a jury for large numbers of other offences that are not really linked to it.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee E

Clause 12 - Application by prosecution for certain counts to be tried without a jury

David Heath (Liberal Democrat, Somerton and Frome)

Welcome, Dame Marion. At the end of this morning's sitting, the hon. Member for Beaconsfield (Mr. Grieve) was filled with a sense of gloom and despondency at the position that the Government had adopted. I share that feeling. I am disappointed that they want to reverse what was an eminently sensible amendment tabled by my noble Friends in another place.

I am sorry to say to the Solicitor-General that I fail to be swayed by her arguments in support of a reversal. Her first argument was not entirely apposite in that she was comparing the status quo ante with the proposals under the Bill. None of us is questioning that. We accept that there is a need to tidy up the arrangements and to introduce such legislation. That is not the question. Consideration must be given to whether the amendment made in another place inserting subsection (9)(b) adds to our understanding of the Government's intention. My argument is that it does.

I therefore reject the second argument of the Solicitor-General, which is that such a provision at this stage will introduce a further condition on the application of the trial of a sample count. It is not a condition. Conditions under the clause are well set out under subsections (3), (4) and (5) and the judge must be satisfied that they are fulfilled under subsection (2). Subsection (9) comprises a working definition of what is meant by a sample count. It is not entirely satisfactory to say that a sample count is whatever a judge may consider it is. I have great confidence in our judiciary and I do not have any doubt that, in the main, it would interpret such matters entirely as Parliament wishes. If we are to have a definition, it should be reasonably comprehensive. That is why subsection (9)(b) should be in the clause.

When the matter was debated in another place, there was an interesting exchange between my noble Friend Lord Thomas of Gresford and Baroness Scotland of Asthal. My noble Friend asked her to 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 purposes of a trial.——[Official Report, House of Lords, 2 February 2004; Vol. 657, c. GC267.]

The Minister gave an odd reply and said that, yes, that was the case, but it was only the case that day, and the next day it might be different. I am not sure that I followed that differentiation, because if the definition of similar fact changed—it has changed on occasion—the definition of sample count would move with that redefinition. It would be sensible to use such a proposition in the Bill.

As for cross-admissibility, what has been inserted seems perfectly sensible. It is interesting that there was no dissent from that on the Government's part in another place. They said that they understood that as the meaning of the clause. They asserted that that was their intention, but said that they did not want to introduce such a provision because it would bring in a new threshold—a new conditionality—to the clause. They also argued that there was a difficulty, because a judge would have to make that assessment early on, before allowing the process to continue, although he or she may not be in a position to do so.

I am not convinced that the argument that has been advanced today is better than that advanced when the matter was debated in the other place. Their Lordships were not convinced—they felt that this provision was sensible. Cross-admissibility determines that we are dealing with similar cases in similar circumstances in a way that narrows the scope of the provision, but not to the point of extinction; it still allows exactly what the Government want to happen, but no more than that, which is a sensible limitation.

To return to my point of departure, I am saddened by the Government's seeking to overturn the Lords amendment. We will oppose the Solicitor-General today, if she moves that course of action, and we will seek to reverse that omission during later stages of the Bill. We have an expectation of success in that reversal, if not in this House, then in another place.

If the Government are determined that this provision should not be included, they had better introduce a similar formulation to the same effect that is acceptable to them. That is the only way that they will have any chance of avoiding a sterile argument on something on which we basically agree.

Harriet Harman (Labour, Camberwell and Peckham)

We shall press forward with our amendment. In response to the hon. Members for Somerton and Frome (Mr. Heath) and for Beaconsfield I ask the Committee to consider the following points. Is the judicial discretion too wide, without the Government amendment, in making decisions about what is a sample case? We know that there has to be some judicial discretion, because we cannot foresee every consequence. We all agree that we cannot prescribe for the judges, who will have to consider matters case by case. The question is where the line is drawn. There is enough to make it clear to the judges what Parliament intend a sample count to be. We cannot anticipate all the different

circumstances, but that does not mean that we have left the judges to their own devices, saying, ''Use your judicial discretion''—far from it.

I should like to draw the Committee's attention to the three conditions set out in subsections (3), (4) and (5).

''The first condition is that the number of counts included in the indictment is likely to mean that a trial by jury involving all of those counts would be impracticable.''

They must get over that test first; it must be impracticable to have all the counts on the same indictment.

''The second condition is that, if an order under subsection (2) were made, each count or group of counts which would accordingly be tried with a jury can be regarded as a sample of counts which could accordingly be tried without a jury.''

It must be impracticable, a sample and

''in the interests of justice''.

David Heath (Liberal Democrat, Somerton and Frome)

The Solicitor-General has talked about the second condition, under which those counts to be tried

''can be regarded as a sample of counts''.

Subsection (9) defines what a sample count is. The only qualification that she wishes to include in that definition is paragraph (c):

''the judge considers that the sample count is a sample of the other counts.''

It is stated that a sample count is simply what a judge considers to be a sample count, without any qualification or any suggestion of what Parliament means by that. Is she satisfied with that?

Harriet Harman (Labour, Camberwell and Peckham)

Not entirely, I am afraid. There is a problem with subsection (9), and I will get on to that; however, we do not have the same view as the hon. Gentleman on how to solve it.

We all agree at the outset that there must be judicial discretion; things must be done on a case-by-case basis. However, there are questions about that. Have we got enough reassurance that the judiciary know what Parliament's intention is in laying down the three conditions? First, we have the three conditions. Secondly, there is the protection of article 6 of the European convention on human rights, which states that people must have a fair trial—whatever the judge does, it must be in the context of a fair trial. Thirdly, there is rule 9 of the indictment rules.

The judges are not free: they have the three conditions and article 6, and if they get through those, they have to get through rule 9 of the indictment rules, which states that in order to be included on one indictment, charges must

''be founded on the same facts, or form or are a part of a series of offences of the same or similar character.''

Those are the chalk marks on the ground—not that the judiciary needs them, of course. The measure is clear and narrow enough.

The hon. Members for Beaconsfield and for Somerton and Frome also asked, ''You say that this is superfluous, so why not put it in anyway?'' Our second point has not been addressed by either of the hon. Gentlemen: it is not just superfluous, it is problematic.

There will be some cases that we would all agree are sample cases with the same defendant, and they would get through everything but they would fall out because there would not be cross-admissibility under the similar fact rule because the element of the probative requirement needed for that would not apply. There would be consequences that the hon. Member for Somerton and Frome does not intend, and that the Government and the Serious Fraud Office would not be happy to live with.

The hon. Gentleman asked whether we are entirely happy with subsection (9). We will have to look at that again. If what I have said is true—which I believe it is—and it is enough to have the three conditions and article 6 and rule 9, why do we need,

''the defendant in respect of each count is the same person''?

That point would not be reached with different defendants. Secondly, why do we need

''the judge considers that the sample count is a sample of the other counts''?

Also, why not add several more measures to that effect on to the end of paragraph (c)?

Hon. Members are worried about the fact that we are plucking out paragraph (b) and leaving paragraphs (a) and (c). I can see that it looks as though we are being inconsistent. We will have a further discussion about why we are doing that. The principal argument is that we have got enough there. At first glance, I cannot see why we need paragraphs (a) and (c). We might have to go for the three conditions, article 6 and rule 9. If that is more clear and straightforward and focuses everybody's mind in a helpful way, it might be satisfactory to hon. Members—or even, dare I say it, to those in another place.

David Heath (Liberal Democrat, Somerton and Frome)

I am delighted to hear what the Solicitor-General is saying, because it is precisely the point that was made by my noble Friend Lord Thomas of Gresford in another place. If we do not have a comprehensive definition, we do not need subsection (9) at all because it serves no useful purpose. If there is a proposal to delete it and replace it with some other assertion relating exactly to what the Solicitor-General has said, we may have a solution, but until we get to that point we must insist that the Bill's wording is more comprehensive and acceptable than what would be left in the Bill after the deletion.

Harriet Harman (Labour, Camberwell and Peckham)

I read the exchange between Lord Thomas and the Attorney-General in another place, but not the one between Lord Thomas and Baroness Scotland. Having said that we will look again at the clause to see whether we might take a different approach to subsection (9), I want to make it clear that we are not offering to change anything else. We are simply considering whether keeping subsection (9) is consistent with our argument for how things are supposed to be. Having a partial definition could be more problematic than standing back and examining the conditions.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

In line with what the hon. Member for Somerton and Frome said, it probably would be better if subsection (9) were examined. I am sure that my hon. Friend the Member for Beaconsfield will be very happy to hear of the words of the Solicitor-General when he returns to the Committee, but in the meantime, to ensure that we put down a marker and reinforce our opinion, I urge my hon. Friends to vote against the Government amendment, although I am encouraged by what the Solicitor-General says.

Harriet Harman (Labour, Camberwell and Peckham)

Hon. Members must decide for themselves how they will vote. I have explained what we will be doing. We will have discussions with the hon. Member for Beaconsfield as well as with other hon. Members who want to discuss the matter before any further changes are made. We urge the Committee to support the Government amendment.

Sylvia Hermon (UUP, North Down)

May I raise one concern before we are forced to vote? Given the rigour of the conditions in the clause and the Solicitor-General's references to article 6 and clause 9, what confidence has she that, given the rigorous tests already in the Bill, judges will make an application on a request by the prosecution?

Harriet Harman (Labour, Camberwell and Peckham)

I think that judges will grant well-founded applications made by the prosecution if they meet the tests. Judges want the full extent of offending to be able to be taken into account on sentencing, and they know that even the offence is only one offence among 100, it is the only offence that counts for the victims, and it matters to them. Judges all remember the pre-Kidd position, so they are used to sample counts. We are not presenting judges with a completely new structure; this is about strengthening and getting right a previous practice. I urge the Committee to accept the Government amendment.

Question put, That the amendment be made:—

The Committee divided: Ayes 11, Noes 4.

Vera Baird (Labour, Redcar)

I have real reservations about the clause, and I ask whether it is necessary. Although I accept that it is not a deliberate one, it is an assault on jury trial, which is the centrepiece of our democracy.

Under the new proposal, the process starts with an appeal. The Lord Chief Justice says, ''A man has been charged on four specimen counts of 17 allegations, and he cannot be sentenced for all 17, even though they are identical to the four, because they have not been admitted, and they have not been proved. He can only be sentenced for the four on which he has been tried.'' That is going to be the rule. He said that from now on, we can sentence people only for what we have tried them on. He thought that that would not be unduly burdensome or unmanageable.

The Law Commission, however, thinks that there is a problem that involves hundreds of cases. The Government have accepted that position and proposed this two-stage trial procedure. The first will take place before a judge and jury in the normal way and will try the sample, or specimen, count. In the event of guilty verdict, in the second stage, the defendant will be tried by a judge alone on any charge for which the first one was a sample. It is thought that many will plead guilty at that stage.

Is that really necessary? There is a problem. In the case of Kidd, Lord Chief Justice Bingham determined upon that one cannot sentence on a sample basis, and one can sample only on what people have admitted or had proven against them. For many cases, it is said that, because there are so many repeat offences of a similar type, they are far too big for a jury to try. One simply cannot sentence someone for the extent of their criminality; one can perhaps pick a few cases out, and if the person has done 10 times as many crimes as that, they will not be sentenced properly. The real problem is that we are not sentencing people for their complete criminality.

I think Lord Chief Justice Bingham thought that the provision would not be ''unduly cumbersome'' because he thought that the problem was likely to be confined mostly to theft and fraud charges, which are most likely to remain the main area. The Law Commission accepts that, and said, at paragraph 4.18 of its report that

''theft and fraud are likely to remain the main area in which this presents serious problems''

There are not likely to be a multitude of charges of sexual offences, because people's memories are too finite.

The other possibility, apart from theft and fraud, to which this new rule might be relevant would be the downloading of images of child pornography, which can involve a large number of charges. In the Law Commission's view, and in mine, the problem seems likely to be confined to those areas. Even in terms of downloading images of pornography the Sentencing Advisory Panel says that the numbers are not the primary basis for the sentencing—it is the course of conduct and its extent—but that they are relevant.

What is the problem with trying all the cases? Two references were made in the Law Commission's report: one was to a case in which there would have been 94 counts on the indictment—that is, charges on the charge sheet—and another was to a case in which there would have been 200. The SFO says that that is far too many; no jury could try that many charges fairly, and only a judge can do so. I am not sure about that.

My first reservation about the need for the measure is that in the Law Commission's worst case of 200 charges, there would, as I tried to say clumsily this morning, rarely be any purpose in trying all counts. We should stick to addressing theft and fraud, which are likely to be the most common matters.

I am not pretending for one minute that the sentences that I am about to use as examples of how things work are based on reality. If one commits a fraud of £10,000, one might be locked up for a year; if one does 10 frauds of £10,000, one does not get locked up for 10 years, but for some figure whose rate of increase diminishes as one goes further up the stage of repetition. The sentence in a fraud case involving £100,000 would probably not be significantly different from that in a case involving £700,000 or £800,000. Our anxiety must simply be to do enough; not all counts have to be tried.

Why is that not practical? Sentences do not increase as the numbers increase. We are talking mostly about theft and fraud. In this country, we do not sentence people guilty of such offences to very long sentences of life, 15 years, 10 years or anything like that. Rightly, we save such sentences for manslaughter, rape, violence and armed robbery. There is a finite limit on what somebody who has committed fraud or theft is likely to get, so we do not need to try them on all counts. Trying the last 50 of 200 counts would probably not change the sentence at all. We need to be able just to try enough charges.

What is the difficulty with that? We could sever an indictment: that is, cut a trial into bits. We could swear in successive juries to try them successively. That may sound long winded, and it may be, but what is the problem? I have been in cases of a different kind that were just as long winded. For instance, in the Orgreave trial during the miners' strike, more than 200 men were tried for riot, affray and other offences committed on a field near Sheffield. The first trial was going to involve 15 men to make it manageable. Some 200 people were involved; how many trials would taking 15 at a time mean? A lot.

The law and the courts still contemplate doing exactly that, and they have done so with every prison riot. There are simply successive trials, tried by juries. There may be a fear of inconsistent verdicts between jury A and jury B, but there could be inconsistent verdicts between judge A and judge B. The same judge will not necessarily try all cases. There might be inconsistent verdicts between the jury who try a sample and a judge who tries the cases that follow. I see no difficulty, once one realises that the scale of offences covered is likely to involve theft and fraud. The

important thing is that trying more and more offences involves the law of diminishing returns, unlike simply splitting them up and trying them.

I would have thought that part of the problem of bulk in trials had been solved successfully by section 101 of the Criminal Justice Act 2003, which allows the admission of evidence of the defendant's bad character—that is to say, evidence of a person's conviction—during criminal proceedings. For instance, in a first trial on 15 counts of theft and fraud, a jury may convict a man on 15, 14, 13 or however many counts, and therefore show that he has behaved dishonestly. The test would be whether we could put in that conviction, showing his bad character. The answer would come under section 101(1)(d) of the 2003 Act if

''it is relevant to an important matter in issue between the defendant and the prosecution''.

The case would be about dishonesty. The man in question would say that he had not been dishonest in relation to the transactions being examined in trial number 2; he would say that they were accidents, mistakes or flaws in his inadequate bookkeeping. Calling evidence that he had been convicted of dishonesty just before on related counts would be directly relevant to an important matter in issue between the defence and prosecution. With that power, brought in by the Government and directly applicable, there would be a great many pleas after the first trial as well. If there are pleas, the issues will be relatively easy for a jury to resolve.

What is the need for this provision, and what are the dangers? During the past few years, there has been a series of attempts to limit jury trial. Although I accept that this is not one such attempt, the provision is essentially about theft and serious fraud, which was one of the moves thwarted last time. However, it is now clear that the Government say that the clause is not an assault on jury trial, and that if anything goes wrong with the rest of jury trial because of it, that will be a result of the law of unintended consequences.

David Heath (Liberal Democrat, Somerton and Frome)

The hon. and learned Lady might remember that we were left in a slightly unsatisfactory position at the end of proceedings on the Criminal Justice Act 2003. The Opposition made a stalwart defence of jury trial for complex cases and certainly won, but only in the sense that the Government's proposals were not implemented; however, they remain in the Act. We were assured that we would have further discussions with the Home Secretary and others on what the next steps would be, but those have not yet materialised. Is she surprised that there has been no discussion of those matters?

Vera Baird (Labour, Redcar)

I do not know about that. I would have thought that there would be need for discussion only if there were any prospect of implementing the measures. Perhaps that is simply not yet being considered. I do not know why, or whether it has anything to do with the provisions in the Bill. However, I do not want to go down that road because I have been assured that the proposals are not being brought in.

I now turn to what I accept will be the unintended consequences of the measures. If there was a two-tier system of trial, people would soon be singing the praises of trial by judge alone: there is no doubt that it is cheaper and quicker than full-blown jury trial. I ask hon. Members to think about that. If I am in court doing an advocacy job in front of 12 people who cannot speak to me at all, I have to go at the presumed rate of the slowest member of the jury. They do not know the first thing about the law, so I have to explain everything that I am doing in great detail. A judge, on the other hand, could say, ''Yes, I've got that point, Mrs. Baird; do get on with it,'' and I would know that the judge knew the law. The process would therefore be much quicker and cheaper than jury trial.

People might say, ''This is odd. Why do we need a jury to take three weeks to try 10 of the counts when the judge has taken only a fortnight to try to the other 190? Obviously, we should scrap juries completely and get on with trials by judge alone. We are wasting a lot of public money.'' The move is not necessary, for the reasons that I gave. My fear is that it will, unintentionally, be the beginning of the end for jury trial.

Harriet Harman (Labour, Camberwell and Peckham)

It might assist the Committee if during this stand part debate I deal with clauses 13 to 16, which relate to the procedures underlying clause 12. If you feel that that is not helpful, Dame Marion, you could cut in and say that you had heard quite enough. In that way, we might not need stand part debates on the other clauses. Looking into the procedure and the substance of the clauses might be helpful, so I shall address matters in that way.

My hon. and learned Friend the Member for Redcar (Vera Baird) has made her case forcefully. I am sure that everyone on the Committee, including you, Dame Marion, thinks that she would make a jolly good Solicitor-General. However, on this occasion I disagree with her. She says that the measure is an assault on jury trial, but she agrees that no cases will be tried under the second stage of the two-part procedure—that is, by a judge on his own—that would have been tried by a jury in the pre-Kidd days. To that extent, there is no reduction in jury trial; therefore the measure is not an assault on jury trial. It simply regulates the situation that pertained before the Kidd decision in the Court of Appeal.

My hon. and learned Friend's second point was whether one could not simply have ''enough'' counts on the indictment. I have a problem with that; one should have the full extent of the offending on the indictment. I am a bit uncomfortable about slicing through the indictment and leaving the other offending to one side. I know what she means when she says that sentencing is not cumulative—the sentence does not go up in exact proportion to the sum involved. Otherwise, people would be convicted and sentenced to hundreds of years. I take the point that there is no mathematical accumulator, but it is important and right that the court has before it the full extent of the offending and that is on the indictment.

My hon. and learned Friend's argument about doing enough for sentencing does not take account of the fact that we need to know the full extent of the criminality on the indictment; nor does it take into account the question of the multiple victims in the cases. Each of the counts will represent a separate victim. In continuous offences that are tried by sample, there is only one victim, but a whole load of victims would just be pushed out of the picture by what my hon. and learned Friend suggests.

My hon. and learned Friend said that people will soon say, ''Let's not have juries any more. Let's just have trial by judge alone.'' She knows as well as I do that people say that all the time; it is an ongoing argument. That does not help us decide whether this is the right procedure. What somebody might argue in future is not a good argument for not supporting this clause.

As hon. Members have said, the provisions have their provenance in a Law Commission report that considered the problems that arise in cases in which the offending conduct of the defendant is repeated so many times that there are too many individual offences to be accommodated in a single jury trial. The report and its recommendations address a specific situation that is widely acknowledged to be highly unsatisfactory. In the past, such cases could be dealt with by means of a specimen count to ensure that the trial will be manageable for a jury. Upon conviction, the judge would sentence on the basis that the counts upon which the defendant had been found guilty were samples of the much larger number of offences committed. The defendant would thus be sentenced to a term commensurate with the totality of the offending. The 1998 Court of Appeal decision in Kidd and others precluded such an approach: the Court ruled that the practice of sentencing on the basis of specimen counts was inconsistent with the principle that a defendant should be sentenced for offences that have been proved by verdict, or to which he has pleaded guilty, or which he has agreed to have taken into consideration. The problem with specimen counts, therefore, was that the defendant was sentenced on the basis of offences to which he had not pleaded guilty or which had not been proved guilty by verdict.

That decision, although correct in principle, has given rise to a serious problem in certain cases of multiple offending. In those cases, the consequences of the impracticality of prosecuting the full extent of offending and the prohibition on specimen counts are that the vast majority of such offending is not prosecuted. The offender thus escapes appropriate sanction. That is a serious failing in the system. Defendants should not escape just punishment because court procedures cannot accommodate the volume of their offending. The court needs to have before it the full extent of the offending.

The Law Commission's recommendation for a two-stage trial procedure in the Crown Court seeks to address those problems. The scheme is aimed at allegations of multiple offending that do not fall into the category of a continuous offence—generally

because they are committed against a series of victims rather than only one and involve repeated similar offending. In terms of type of offence, we expect the scheme to operate chiefly in the areas of theft and fraud, in which the total sum is relevant to the sentence. At present, a person whose offending involves the commission of hundreds of offences, each involving a small amount, perhaps, but the overall gain of which might be considerable, cannot be sentenced to a term that reflects the true extent of their offending. That cannot be right. Confiscation of proceeds questions must also be taken into account.

The outline of the procedure is dealt with in subsequent clauses. The key elements of the procedure are as follows. The prosecution makes an application for the two-stage trial procedure to be invoked. The application is considered by the trial judge at a preparatory hearing. In the event of a successful application, an indictment is drawn up containing charges chosen to show samples of the offending. A series of linked offences, reflecting the full extent of the alleged offending, is placed in a schedule attached to the indictment.

The first stage of the trial is a conventional jury trial on the sample counts contained in the indictment. The second stage takes place only in the event of a guilty verdict on one or more of the counts tried before the jury. The judge alone decides on the guilt or innocence of the defendant in respect only of offences linked to those upon which the jury has convicted. The judge is not bound by the conviction of the jury at stage one but is free to come to his or her own view of the evidence. In the event that the jury has acquitted on a sample count, there is a presumption in favour of a directed acquittal on the linked counts. The defence has a right of appeal against an order for a two-stage trial, and the judge is required to give a reasoned verdict at the end of the second stage in the event of a conviction.

The two-stage procedure will have a number of benefits. It will preserve jury trial in respect of the core examples of the defendant's criminality. It will ensure that the jury trial is manageable and comprehensible. It will be likely to encourage guilty defendants, either on an initial arraignment or after conviction of a number of sample offences, to plead guilty to or to admit any linked offences of which they are also guilty. It will give the defendant a fair hearing, with the opportunity to present a defence in relation to any or all of the alleged offences. It will ensure that defendants will not be able to take advantage of the practical limits of trial by jury so as to go unpunished for a significant part of their offending. It will allow the court to sentence the defendant for the full extent of his or her offending while safeguarding a fundamental requirement of justice: that the defendant is sentenced only for offences that have been proved to a court after a trial, or to which they have admitted.

The two-stage procedure will also allow full expression of each of two fundamental requirements of justice: first, that a defendant should be sentenced

only for offences that are admitted or of which the defendant has been convicted after having had the opportunity to challenge the evidence; secondly, that defendants should be tried and sentenced for the full extent of their criminality. I would add a third requirement: that justice be done in respect of each person who is a victim of that criminality. The defendant will be given a fair hearing, with an opportunity to present a defence in relation to any or all of the alleged offences. The procedures thus safeguard the interests of the defendant by ensuring that the sentence will reflect that conduct which the prosecution has proved to the jury and, thereafter, to the judge.

I understand colleagues sense that when things are separated out like this, in the manner that the Law Commission has proposed, it looks uncomfortably as though the second counts will somehow be second-class justice, but that is not what will happen. That is not what happened pre-Kidd. Our proposal is an improvement on the pre-Kidd procedure. There will be sufficient safeguards, transparency in practice, rights of appeal and judicial discretion. Clauses 12 to 16 should stand part of the Bill.

Question put and agreed to.

Clause 12, as amended, ordered to stand part of the Bill.

Clauses 13 to 16 ordered to stand part of the Bill.

Schedule 1 - Modification of sections 12 to 15 for Northern Ireland

Paul Goggins (Labour, Wythenshawe and Sale East)

I beg to move amendment No. 61, in schedule 1, page 23, line 20, leave out from beginning to the second 'that' in line 23 and insert

'the requirement under Article 49A of the Mental Health (Northern Ireland) Order 1986'.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss the following: Government amendments Nos. 62, 64, 67, 68, 58 and 59.

Government new clause 20—Procedure for determining fitness to plead: England and Wales.

Government new clause 21—Procedure for determining fitness to be tried: Northern Ireland.

Paul Goggins (Labour, Wythenshawe and Sale East)

The amendments would reintroduce procedural changes for determining fitness to plead under the Criminal Procedure (Insanity) Act 1964 that were removed from the Bill in the other place.

New clause 20 introduces the central change. The decision on whether the defendant is fit to be tried is to be taken

''by the court without a jury''.

That replaces the current requirement that a jury take that decision. The change was a recommendation of Lord Justice Auld. It is designed to streamline the current cumbersome process whereby separate juries

have to decide, first, whether the defendant is to be tried and, secondly, whether he did the act or made the admission as charged.

New clause 21 does the same in respect of Northern Ireland. Lord Justice Auld's remit did not include Northern Ireland. However, the proposed measure has attracted equally strong judicial support there and the Government wish to extend the provision to Northern Ireland as we think that it will be of equal value there as it will be in England and Wales.

The measure will improve the court process, but I wish to examine the issue from the point of view of the defendants. I believe that it will have some added protection for them in two ways. First, such defendants are often vulnerable, and if the judge were to make the determination, they would not have to go before the jury on two separate occasions. The judge would determine fitness to plead and a jury would then be convened to determine whether the defendants did the acts as charged. It is important to stress that we do not consider the provision to be an erosion of the right to trial by jury. A defendant cannot be sent directly to hospital if he is found unfit to plead. The result of a finding of unfitness to plead is that the trial of criminal liability stops, but the jury is still convened to engage in a fact-finding exercise. The defendant can be sent compulsorily to hospital only if he is found unfit to plead and a jury finds that he did the act with which he was charged.

Sylvia Hermon (UUP, North Down)

I am sorry to interrupt the Minister in full flow. I am pleased that the provisions will be extended to Northern Ireland. He said that these defendants are vulnerable. I could not agree with him more. Perhaps I am wrong, but am I right in thinking that the provisions do not apply to youth courts? We are discussing vulnerable young people, but the provisions apply only to people over 18.

Paul Goggins (Labour, Wythenshawe and Sale East)

I am sure that advice on that will be with me soon. Perhaps I can clarify the position with the hon. Lady later in the debate. I am pleased that she welcomes the extension of the provisions to Northern Ireland.

As I said, the defendant can be sent compulsorily to hospital only if he is found unfit to plead and a jury finds that he did the act with which he was charged, so a person who is found unfit to plead by the judge will still have a jury to decide on the facts of his case. If the jury decides that he did not do the act with which he was charged, it must return a verdict of acquittal as it would if the case had proceeded to trial. In that case, the defendant walks out of the court completely free.

It is rare for medical evidence of fitness to be contested. In the first five years of the operation of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, evidence on fitness was challenged in only 10 per cent. of cases in which it was submitted. Frankly, it erodes the significance of the jury system for juries to be required to rubber-stamp what is often technical and professional evidence.

The second way in which the measure benefits the defendant is in relation to what happens if he disagrees with the decision that he is unfit to plead. If he disagrees, he is far better served by a judge making that decision, not a jury. The judge will have to give reasons for his or her decision, which will be open to challenge on appeal. Those reasons will be available to a defendant wishing to go to the Court of Appeal, but no reasons are given when a jury makes the decision. The proposal for the judge to make the decision puts the defendant in a more favourable position in the event of an appeal.

The remainder of the amendments in the group are consequential, applying mainly to Northern Ireland, to reflect the change of responsibility for determining fitness to plead. I realise that the matter caused some controversy in the other place, but I hope that the Committee will be reassured that the proposals are positive. First, they will not undermine the right to trial by jury; secondly, they simplify the court process; and thirdly, they strengthen the rights of defendants who may also be vulnerable. On those grounds, I hope that the measures will be included in the Bill.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I appreciate what the Under-Secretary was doing when reinstating the provisions removed with a reasonable majority in the other place by my noble Friends, together with Liberal Democrat Lords. I hope that, despite what he said, I will persuade him to think again. As he rightly said, the amendments effectively remove from the ambit of a jury the decision on whether a defendant is fit to stand trial, and award it solely to a judge.

The provisions will extend to Northern Ireland; the hon. Member for North Down (Lady Hermon) has already welcomed them. In debating other amendments, we will see how they apply to courts martial, too.

I have reflected on the debates in the other place, but I still think that despite the distinguished provenance of this proposal, to which the Under-Secretary referred—it is contained in Lord Justice Auld's report—there is a perception that the Government are removing more decision making from the lay members who contribute to the judicial process and concentrating it in the hands of legal professionals. In addition, the Bill effectively consigns the defendant to what could be incarceration in a mental institution without the benefit of their case being heard by a jury. That could also become an issue of civil liberties.

On reconsidering Lord Justice Auld's report, which is a lengthy and weighty tome that could prop open doors, I found that it devotes two paragraphs—barely a page—to requiring a judge alone to determine fitness to plead. Baroness Scotland of Asthal deployed only a minimal set of arguments to justify the change, hence my concern with the arguments in the other place. First, she argued that it was a waste of time and resources to convene two juries if a defendant's fitness to plead is being considered. That argument was not promoted by Lord Justice Auld in his two paragraphs.

If, at the end of the process, the defendant is deprived of his or her liberty, they will not be impressed that they did not have the opportunity for

their voice to be heard because the process cost too much or was too complicated. I appreciate that there is more flexibility in dealing with a defendant who is found to be unfit to plead with regard to an absolute discharge to hospital order, but he or she still loses access to an institution that commands public confidence during a process that could eventually take away his or her liberty. I also appreciate that the Under-Secretary said that there is an added protection for vulnerable people, but that may be afforded by a jury process in which the offender would have more confidence.

On resources, I am not sure that we will run out of people to serve on juries. There are plenty of people hanging around courts who could be put on juries. It is a question of opportunity costs. There are bodies in the court system that can be used in this process.

Baroness Scotland argued that a jury is unlikely to be as well qualified as a judge to interpret complex professional evidence. However, on closer examination that argument does stand up. I am not sure that the judge has any special qualities to bring to the process. The jury would be taking evidence from two medical practitioners, at least one of whom would be approved for the purpose of presenting evidence in such cases. It is, therefore, likely that the jury would be hearing evidence from professionals who are well placed to interpret the medical histories and conditions involved and to express their interpretation in a way that a jury can understand.

Judges and practitioners alike recognise that juries get it right. I doubt if the Under-Secretary can give me a long list of cases where the jury got it wrong over fitness to plead, or if he can produce a list of cases at all. If he can, I should be pleased to see it.

Lord Justice Auld acknowledged that the jury's role in unfitness to plead cases is often nothing short of a formality. The Under-Secretary alluded to that. There is usually no difference of opinion between the prosecution and the defence about the state of mind of the defendant. If that role is removed as an option, we will erode yet further what is still viewed, and what the hon. and learned Member for Redcar referred to, as a cornerstone of British justice that is there for the benefit of the British citizen. As it is, only about 1 per cent. of criminal cases in England and Wales culminate in trial by jury. If juries lose their role in cases of fitness to plead, we are certainly contributing to the demise of the jury system.

In the past five years, how many juries have sat to consider fitness to plead? Have there been any recorded complaints from defendants saying that the process was flawed? What estimates have been made of costs or savings to the public purse resulting from the difference between jury decisions and the decisions of judges sitting on their own? I do not believe that that was mentioned in the impact assessment, although perhaps it was there and I missed it.

By statute, under the Criminal Procedure (Insanity) Act 1964, the issue must be determined by a jury, either on arraignment or, if the court so decides, at any time

during the trial until the opening of the defence. Can the Minister reassure me that that would still be the case if the clauses came into operation?

I have tried to put the case for reconsidering the amendments. I hope that the Minister will not overturn the judgment made in another place, and that he will withdraw the amendments.

David Heath (Liberal Democrat, Somerton and Frome)

Previously, we debated an amendment tabled by my noble Friends in another place and supported by the Conservatives. In this instance, we are debating the replacement of something that was taken out as a response to an amendment by the Conservatives in another place and supported by my noble Friends. I do not think that we differ in our reasoning in this matter.

First, I welcome the application of the law to Northern Ireland. I do not welcome what is being done, but I believe in consistency; if one is determined to be wrong in England and Wales, then one may as well be wrong in Northern Ireland, too. That is a fundamental principle, and I am glad that the Government have finally accepted that.

However, the Government have got things wrong here. I am always slightly concerned when I hear Ministers quoting Lord Justice Auld's report or the Law Commission report, because the Government had no compunction about rejecting so much of what both reports said and then plucking a sentence or two and using the reports as a flag of convenience to justify what they are doing. I take with a pinch of salt the assertion that all that the Government are doing is what is arrived at by consensus, and what is a self-evident truth because it is in the Auld report.

I also have concerns—and the amendments are not the worst example of this by a long way—that one of the Home Office's priorities in recent years has been the chipping away at the role of the lay person in our judicial system. Whenever a lay person is involved, one can be sure that the Government will soon come up with a good reason why they should no longer be involved, and why the job should be left to the professionals, whether that be the judiciary or others. I do not accept that, because it is a cardinal principle of our law that the lay person is an integral part of the procedure. We are discussing a fairly marginal application of that principle, because, as has been said, by and large there will not be a contest about the medical advice proffered to a court. Very often, there is a view as to whether a person is unfit to plead. However, where there is a difference of medical expert opinion, the right tribunal for determining which opinion should be accepted must be the jury, not a judge.

A judge is not qualified to take a medical view. As the hon. Member for Chesham and Amersham (Mrs. Gillan) said, we may be dealing with incarceration of a person on a decision taken—if the Government have their way—by one judge. That judge will decide which of two equally valid, but differing, medical opinions he chooses to adopt. I prefer that decision to be in the hands of a jury. Our noble Friends in another place

were right to support the amendment that removed the provision. The Government are wrong to bring it back at this stage. The advantages are minimal, the potential disbenefit substantial, and I hope that the Government will think again. We will oppose the amendment.

Paul Goggins (Labour, Wythenshawe and Sale East)

Let me begin by responding to the question asked earlier by the hon. Member for North Down about the applicability of the measures to young people. I confirm that they will apply only to the Crown court, so they will apply to young people under the age of 18 who are before the Crown court. However, such persons would be there only if the charge was serious—we do not expect children to appear frequently at the Crown court. I hope that I have given some clarification.

I say to the hon. Members for Chesham and Amersham and for Somerton and Frome that any Government proposal that contains a suggestion of transferring responsibilities and decision making from juries to judges will be challenged and scrutinised. I accept that. It is an important part of our judicial system and we need to protect it. I well understand why people raise such issues. However, I emphasise that we are discussing not trial by jury, but determination of fitness to plead. The case in relation to fitness to plead is a technical and professional judgment that is currently put to the jury. We are suggesting that it be put to the judge.

As I said, the evidence is challenged only in some 10 per cent. of cases. I do not argue that the jury does not have the ability to understand such arguments. I reject any suggestion that ordinary men and women who are members of a jury are not capable of understanding the issues. However, my fellow Home Office Ministers want to make sure that we treat juries as an important and significant resource. Our argument is that we would not be making best use of that precious resource and time by putting them through a technical process that is rarely challenged.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Let us consider a high-profile case that stirred much emotion among the general public. Does the Minister accept that it would be more difficult to explain the exclusion of the jury from that part of the proceedings? Public interest in high-profile cases will be more satisfied if fitness to plead was dealt with by a jury of the people, not by a judge sitting behind closed doors. The amendments will be perceived outside the Committee as an erosion. The Minister is removing an important part of the process in which reasonable men and women are seen to participate in something that might be of great public interest.

Paul Goggins (Labour, Wythenshawe and Sale East)

I understand the hon. Lady's concern, but we have an important responsibility to educate the public more about the procedures within courts. The jury does not decide off the top of its head whether someone is fit to plead; it makes a decision based on technical and professional evidence that is given to it—evidence that is challenged in only 10 per cent. of cases. Members of the jury do not just make it up; they listen to the technical and professional evidence. We argue that if that evidence were put

directly to the judge, jury time could be used better. That benefits the defendant because the judge would have to list reasons for his decision, which would be challengeable in the Court of Appeal.

On the numbers that the hon. Lady requested, the Department for Constitutional Affairs does not keep figures for juries that have been convened to determine was fitness to plead. We do have figures for cases in which a person was found unfit to plead, and I will write to the hon. Lady and other Committee members with those figures. As for her final question, fitness to plead will still be able to be considered at any time until the opening of the defence. We are not changing that procedure at all. We want to change the person or persons who make the decision, not the procedure.

Vera Baird (Labour, Redcar)

It is a complete waste of resources if both psychiatrists—sometimes, there are even three or four—agree on a opinion, but the law requires a jury to be sworn in to decide the uncontested issue. Would it not better to alter the law to allow the judge to rubber-stamp on those occasions but to keep juries for the 10 per cent. of cases that are contested?

Paul Goggins (Labour, Wythenshawe and Sale East)

As always, my hon. and learned Friend makes an interesting suggestion, although not one to which the Government feel attracted. We must make a balanced judgment between the evidence that professional people give to the court and the sensible use of the jury's time and the effective use of resources. In drawing that balance, we have decided that in all cases the decision should be transferred.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I have heard what the Minister has said, but, with other Opposition Members, I remain unsatisfied. For the record, I would like to give notice that when the Committee comes to decide on Government new clause 20, which will be the indicative vote, we will seek to divide the Committee.

Amendment agreed to.

Schedule 1, as amended, agreed to.

Clause 17 - Powers of court on finding of insanity or unfitness to plead etc

Paul Goggins (Labour, Wythenshawe and Sale East)

I beg to move amendment No. 102, in page 12, line 17, at end insert—

'(4) Section 5A of the Criminal Procedure (Insanity) Act 1964 (''the 1964 Act'') applies in relation to this section as it applies in relation to section 5 of that Act.

(5) Where the Court of Appeal make an interim hospital order by virtue of this section—

(a) the power of renewing or terminating it and of dealing with the appellant on its termination shall be exercisable by the court below and not by the Court of Appeal; and

(b) the court below shall be treated for the purposes of section 38(7) of the Mental Health Act 1983 (absconding offenders) as the court that made the order.

(6) Where the Court of Appeal make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable as if the order had been made by the court below.'.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss the following: Government amendments Nos. 103, 104, 106, 63, 107 to 122, and 105

Government new clause 38—Courts-martial etc.

Government new schedule 1—Unfitness to stand trial and insanity: courts-martial etc.

Paul Goggins (Labour, Wythenshawe and Sale East)

This rather large group of amendments is intended to reflect in court martial proceedings the changes that were made in clauses 17 and 18. It also reflects the change made by new clauses 20 and 21, so that a decision on whether a defendant is fit to plead will be made by the judge advocate alone, rather than by the lay members of the court martial.

The service legislation in this respect is out of date. An attempt to provide an updated framework was made in the Armed Forces Act 1996, but the regulatory framework that it provided for has proved too complex and has never been commenced. It is therefore a matter of some urgency to put appropriate provisions in place.

The effect of the amendments is to allow courts martial to slot into the Mental Health Act 1983 and to make hospital orders on the same terms as civilian courts. That means abandoning the Armed Forces Act 1996 provisions, which envisaged a system allowing courts martial to commit people to hospital in Scotland or Northern Ireland, as well as in England and Wales. It must be emphasised however that, under the new provisions, a person who is admitted to hospital in England and Wales can later be administratively transferred to a hospital elsewhere in the United Kingdom, if that is appropriate in their case.

The amendments also address a problem with service legislation that has only become apparent recently in House of Lords and European Court of Human Rights case law. The Armed Forces Act 1996 envisages that orders admitting people to hospital or non-residential supervision would be made with input from both the judge advocate—who is a civilian judge—and the lay members of the court martial, who are non-legally qualified military officers who serve a function like a jury. That is consistent with the normal court martial sentencing procedure, which allows the lay members to have input into sentencing because of their expert knowledge about the effect of criminal offending on military discipline. However, the case law makes it clear that those orders are to be considered not as criminal in nature, but as mental health matters. Although the court members will still decide on the facts of the case, it is inappropriate to have lay input into the orders themselves. The decision should be made by the judge alone, on the basis of advice from mental health professionals.

In addition, amendments Nos. 102 to 104 make some technical improvements to clause 17. The changes are not related to the court martial system, but simply improve what we have already done for the civilian system.

David Heath (Liberal Democrat, Somerton and Frome)

If an individual is committed to a hospital by a court martial, does that individual remain under military discipline and subject to Queen's regulations?

Paul Goggins (Labour, Wythenshawe and Sale East)

My understanding is that they do not remain under military discipline. If any further details are of interest to the hon. Gentleman, I will write to him about them.

The amendments are large in number, but I hope that they are not too controversial.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am grateful for the succinct way in which the Minister has explained this large group of amendments, but fear strikes my heart when I read that the unfitness to plead provisions were out of date and that schedule 2 of the Armed Forces Act 1996 was never commenced due to its complexity. That is reflected in the large number of Government amendments that face us now. It is a minefield to try to make sense of such a large group.

The Minister tells us that in an attempt to bring the military sphere into line with civilian legislation, he has chosen to remove from the equation the two lay members who sit with the judge advocate. The arguments used to justify removing the jury process in non-military courts cannot be read across, because we are not talking here about a cumbersome or an arduous process or unnecessarily long procedures.

It would be interesting to know how many cases the provisions could apply to in the armed services and how many instances of cases of unfitness to plead there have been in the past five years. It is to be hoped that military procedures identify servicemen and women who have a severe mental health problem at an early stage, long before things came to a court martial. The statistics on that would inform the Committee.

What consultations has the Minister had with the armed services and their personnel? It would be interesting to know whether the military fully back the changes, and what problems, if any, were raised. There are intrinsically different sets of procedures for the armed services and for the civilian courts.

It would also be interesting to know what was behind the presence of the two lay assessors in the first place, because to remove them from the equation is quite a step forward. I find it hard to imagine how removing the two military personnel from the panel and leaving an outside judge advocate to sit on their own will benefit the offender. I also wonder whether we could find out what other European countries do in their courts martial, and whether there is any thinking in the Home Office about bringing our armed services procedures into line with procedures in Europe.

Will there be any savings? I am not sure what arrangements are made for people sitting on courts martial. It appears that there are only opportunity costs. It would be interesting to know what impact assessment studies have been done on these provisions.

As I understand it, we have an extraordinary law for our armed services, which are extraordinary services. For example, there is a military offence of cowardice

that does not read across into the civilian system. I cannot understand why we are interfering in the process of courts martial, which appear to be functioning well. Further, I would like to know why we are removing, in effect, the military presence in courts martial. That is like imagining a Church court without bishops. A court martial without representatives of the armed services seems a contradiction in terms.

What is the position when our armed forces are elsewhere in the world? During the passage of the Armed Forces Discipline Bill in 1999, Lord Burnham summed up our concerns:

''What may be acceptable in the garrison towns of Colchester and Aldershot may not be practicable or in the least possible at the sharp end in East Timor or Kosovo.''—[Official Report, House of Lords, 29 November 1999; Vol. 523, c. 672.]

What would happen if the situation arose when our armed servicemen were abroad on their duties?

Paul Goggins (Labour, Wythenshawe and Sale East)

The hon. Lady asked a number of questions. I will attempt to answer them all, but I think that I will fail. I will write to her on any detailed questions that I am unable to answer now.

The costs will be minimal; the numbers are small. One reason for that is that we have not been able, as the hon. Lady pointed out, to bring the 1996 Act into play, so we have not been able to do the things that we want. I emphasise the importance of what she said: prevention and early action, rather than letting things run and have negative consequences, is always to be preferred.

She asked about lay members. I am not sure when they were introduced, but their role is clear: to bring their understanding of the impact of offending to military discipline and to make sure that that is understood at the point of sentence.

The hon. Lady asked about consultation between my Department and the Ministry of Defence and consultation with the armed forces. There has been a great deal of consultation, and all the measures that we propose in this vast number of amendments are fully supported by the armed services. I hope that, with that reassurance, the hon. Lady will be inclined to support the Government's amendments.

Amendment agreed to.

Amendments made: No. 103, in clause 17, page 12, line 20, at end insert

'''interim hospital order'' has the meaning given in section 38 of that Act;'.

No. 104, in clause 17, page 12, line 24, leave out from first 'the' to end of line 27 and insert '1964 Act.'''. Paul Goggins.]

Clause 17, as amended, ordered to stand part of the Bill.

Schedule 2 agreed to.

Clause 18 - Appeal against order made on finding of insanity or unfitness to plead etc

David Heath (Liberal Democrat, Somerton and Frome)

In light of the previous debate, may I ask simply how the right of appeal operates in a court martial?

Paul Goggins (Labour, Wythenshawe and Sale East)

I emphasised that there was good collaboration between the Ministry of Defence and the Home Office and close consultation on this matter. However, there is no point in my pretending that I can answer the hon. Gentleman's question at this stage in terms of the technical detail that he requires. I undertake to seek further advice and to confirm that the arrangements are precisely the same as those in the civilian world. I hope that that satisfies him.

Question put and agreed to.

Clause 18 ordered to stand part of the Bill.

Clauses 19 and 20 ordered to stand part of the Bill.

Schedule 3 agreed to.

Clause 21 - Code of practice for victims

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to move amendment No. 13, in clause 21, page 14, line 27, at end insert—

'(5A) Notwithstanding the provisions of subsection (5) the code shall set out provisions to exempt victims of domestic violence and their dependants who are subject to immigration control from any proceedings that may alter their immigration status until such time as the Secretary of State is satisfied no domestic violence, or threat of violence has occurred, or is likely to occur whether or not any criminal proceedings have taken place or are likely to take place with respect to that domestic violence or threat of violence.'.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss the following:

Amendment No. 36, in clause 33, page 19, line 30, at end add—

'(3) The Secretary of State may exempt victims of domestic violence and their dependants who are subject to immigration control from the restriction on public funds to enable them to access emergency accommodation and living costs, and may recover such funds from the sponsor (as defined by section 113 of the Immigration and Asylum Act 1999) of the victim.'.

New clause 14—Effect of immigration rules—

'The Commissioner shall have regard to the effect of the Immigration Rules on victims of domestic violence.'.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

The clause is the enabling clause for the code of practice for victims, and we welcome this step forward in the way in which we deal with victims.

Amendment No. 13 is simply inspired by the plight of many people, the majority of whom, by far, are women, who come to this country to join their family or to get married and who are then subject to violence. I acknowledge that the Government have offered them protection to a certain degree by quite sensibly applying the new domestic violence rule to the immigration rules. I understand that if a woman can show that her marriage to a British citizen or to an individual who has settled in this country broke down because of domestic violence during her two-year probationary period but before she has indefinite leave to remain, she may be granted settlement. That has

regularised a situation and shows the humanity with which we can treat women who find themselves in those circumstances.

However, there remains a group of women who are over their two-year probationary period—they are commonly referred to as overstayers—and who do not have the protection of settlement open to them that is afforded by the application of the domestic violence rule. They are usually entirely dependent upon their spouse to regularise their situation and if he is abusive, they remain trapped, because the alternative, as they see it, could be deportation or worse. Their overstay is not their fault, as it is not in their control, and an abusive spouse can hold it over the head of the women as a controlling factor. If a woman is unable to access help or advice when her visa expires and her two-year probationary period is up, she is entirely at the abuser's mercy.

I have been particularly impressed, as I believe that the Minister and other Committee members have, by the Southall Black Sisters, who have highlighted this and other issues. I am sure that it will seek to persuade the Minister of the changes that it wants and I know that it has held meetings with Committee members in an attempt to do so.

I also appreciate that while considering this matter we should ensure that any provision cannot be abused, whereby parties agree to rely on a defence of domestic violence to secure settlement. That should not put us off considering amendment No. 13. I appreciate that it might not find favour with the Minister but if he cannot agree to it, I would ask him to undertake to address the issue and to provide a solution that the Government would find acceptable. It is not right that in 2004 we should consign a group of black and minority women to live in fear and trepidation. I look forward to hearing his views on the amendment.

Sandra Gidley (Liberal Democrat, Romsey)

Amendment No. 36 is intended to achieve the same ends in a slightly differently way. I share the sentiments of the hon. Member for Chesham and Amersham on the work of Southall Black Sisters, which has been active on this issue and persuaded several hundred organisations to back the campaign to amend the law.

It is easy to underestimate the impact of domestic violence on some women. One big problem is that often if someone is new to a country, newly married, does not understand the language well and is relying on their partner to sponsor them for money, they have nowhere to go if domestic violence is happening. It is even worse than that in some respects. There are well-documented cases where women have tried to go to the police, but with nowhere safe to go they have been forced to return to their violent partner and withdraw their allegations.

Sometimes we forget that there are children to consider. Although some women want to leave a partner and return home, because not everybody wants to stay in this country—we often ignore that

part of the argument—that is not an easy option for others who face hardship and being ostracised socially on their return.

It is useful to think about the scale of the problem. According to the work done by Southall Black Sisters, which deals with or becomes aware of the bulk of the problem, about 500 to 600 women a year have no recourse to public funds. Some 90 per cent. of those women have sponsors from whom, if the amendment were accepted, the Government would perhaps be able to regain some money. That problem is set against the 44,000 spouses a year who are granted settlement. Between 2000 and 2002 only 119 women applied for indefinite leave to remain under the domestic violence concession. It is not enough for the Government to say, ''We have the domestic violence concession, which women can use.'' It is clearly not being used to its full capacity. If the Government think that this measure is the way forward, I would welcome any suggestions as to how we can make it more effective. However, if it is only reaching about a quarter of the women who are affected, it is not ideal and needs to be reviewed.

Similar amendments were opposed in the other place. The reason given was that they undermined the integrity of the immigration and benefits rules. The Government confirmed their commitment to addressing the problem. I shall return to some of the Government action later, because there is not another convenient place to raise some of the questions.

It has been argued that this is a human rights issue. Failure to protect all women who are subject to immigration control from domestic violence, and withholding public funds from victims because of their uncertain status, is discriminatory, disproportionate and a violation of human rights. Why should the abuser not be more accountable? To deny women access to public funds in this relatively small number of cases has meant that some who have reported abusers to the police have often been left with no option but to withdraw their allegations. Unfortunately, we are sending a message that says, ''It's okay to do this, we're not going to come after you.'' The Government are seeking to address other aspects of the law, but this situation sends a message to a certain section of the community.

The amendments would protect all victims of domestic violence who are subject to immigration controls as defined under section 159 of the Immigration and Asylum Act 1999. That includes the spouses and married partners of persons with British citizenship or indefinite leave to remain. Since April 2003, things have gotten slightly worse: before then a relationship had to endure one year, but the period was increased to two years. As we have already been made aware, pregnancy is often a precipitating factor for domestic violence; with a two-year period, there is a much greater chance of that happening.

Other people who will be included are overstayers. It is important to be aware that some women are not kept up to date about their immigration status by their spouse. I am dealing with a case at the moment in which the spouse opens all the mail, so the woman

simply does not know what is going on. These things happen. The provisions will cover many other categories of person, as well.

Will the Minister explain why there seems to be no willingness to extend the domestic violence provision? Although I have highlighted the problems, why it is acceptable only for certain categories of women to claim the provision as a reason to stay. If the provision could be tightened up and extended to other groups of women, it would create a lot of reassurance.

I am not yet sure what solutions the Government propose. I hope that the Minister will take some time to clarify what is happening. In ''Safety and Justice'', the Government made a commitment to ensuring that victims can get access to safety and support, including refuge services funded through the ''Supporting People'' arrangements. The problem with the latter is that they cover only the non-housing aspects of support. Although there is some support available, relying on that provision neglects the very real problem that women have in accessing some sort of housing. Most refuges use housing grants to fund places, and housing grants are the one thing not available to women in that position. In its summary of responses to ''Safety and Justice'', the Home Office makes a commitment to ensuring that those who are still subject to immigration control can get access to refuge and accommodation, but the Home Office figures show a severe shortfall in provision of support and services to ethnic minority women.

I am aware that some £40,000 has been given to the Women's Aid last resort fund; that is very welcome, but there are criticisms that the take-up of that fund is poor and the system is somewhat complicated. The grants given by the fund are one-offs, and are limited to a period of two months. There is a lot of evidence to show that the average time between leaving a partner and lodging an application is approximately three months. That is because it is difficult to find a solicitor, who then has to gather together the information, and all that takes time. Although the Government have a fast-track unit at Sheffield to deal with some of the cases more quickly, the average is still 47 days. If one puts those two lengths of time together, it is clearly longer than two months. What will happen to those women after the two-month period for which they receive funding?

The process can be speeded up if people really know the system, but Southall Black Sisters told me that it was increasingly difficult to find a solicitor who understands the problems and is willing to deal with them on legal aid. Furthermore, the organisation does not want to direct women towards any provision that is less than the best. The other comment made was that the £40,000 will only help 23 women. I am not clear how long the £40,000 is meant to last. If it is meant to last for a year, that is great for the 23 women who are being helped, but what about the several hundred others who do not have access to any money?

Will the Government consider a fast-tracking system? I gather from reports in Lords Hansard that Baroness Scotland was going to have a look at the provision in respect of sponsors. I have mentioned

deterrents. The principle has already been established in various forms—by the Child Support Agency, for example—that costs can be reclaimed from sponsors. The system seems to work well in countries such as the USA, Canada, Austria and Denmark, so what is the problem with a similar system working in the UK?

Sally Keeble (Labour, Northampton North)

I want to talk briefly about some of the issues behind the amendment, and to ask my hon. Friend the Minister to look at alternative ways of achieving some progress on this, because there is a problem with what happens to victims of domestic violence who fall into the relevant categories.

The domestic violence exemption has been of benefit to many women. In Northampton, we have a large Bangladeshi community and there are substantial domestic violence issues there. The exemption has worked well. It can be accessed, and cases are dealt with sympathetically and promptly. However, there is an accommodation problem while cases are being dealt with.

Let me break the problem down carefully. Support in terms of accommodation in the refuge system can be accessed for the victim of domestic violence. Therefore, often the woman can be catered for, but there is a problem with the children. Many of the women I have seen have several children, some of whom are very young. There is a real need consider how that can be dealt with. These amendments might do that to an extent, but they do not deal specifically with children. There is also a degree of resistance simply to lifting the ''no recourse to public funds'' ruling, albeit that is only for 47 days, because it is felt that that would compromise the integrity of the system.

The problem could be dealt with in other ways. Women who are particularly vulnerable can be supported under community care legislation, if a proper assessment is made of their needs. A much more likely solution is that the children could be supported by social services under the Children Act 1989; that could extend to providing support for accommodation. When young children are involved and a violent father is around, the obvious thing to do is to house the children with their mother rather than to take them into care or leave them with the father.

I admit that arguing that case has been incredibly difficult. There have been a few test cases, but lawyers who will deal with community care legislation or the Children Act 1998 are few and far between. If the Minister is thinking of not accepting the amendments, will he undertake to talk to colleagues, especially the Minister for Children at the Department for Education and Skills and Ministers at the Office of the Deputy Prime Minister who have responsibility for local government housing policy, to find a way to ensure that the most vulnerable victims of domestic violence—very young children—are properly supported?

This is an extremely serious issue. I had to deal with the case of a woman who had been in this country for two years. Her violent husband had taken her passport away. She left him only when he took a knife to one of

the children. She was pregnant and after an appalling series of events, ended up having the baby in hospital, but the baby was very ill and died. The woman stayed in hospital for 10 days until his life support machine was turned off, and then for five weeks more because no one would house her. Meanwhile, the children were taken by the husband's family. To stay with a man who had taken a knife to one of them was not a clever proposal. I accept that that is an extreme example but, in such circumstances, it must be possible to make sure that, if the Government are not willing to compromise the support systems set out by the Home Office, they make other Departments work together to protect the interests of the most vulnerable victims.

Ann Keen (Labour, Brentford and Isleworth)

The organisation Southall Black Sisters is based in a constituency neighbouring mine. I have known the brave women there and the work that they do within the community for many years, especially in west London. That organisation and Hounslow Asian Women's Refuge welcome the Bill as a first step in creating a comprehensive legislative approach to domestic violence in this country. However, there is now an urgent need to ensure that the Bill recognises women whose immigration status is dependent on that of their husband or partner and who are trapped in violent relationships as much by the restriction on recourse to public funds and their fear of destitution and financial exploitation as by their fear of being returned to their country of origin.

The women's fear of destitution stems directly from their lack of access to welfare benefits and housing. It prevents many of them from making meaningful choices about leaving violent relationships. Many Members of Parliament do not have to face such women in their constituency advice surgeries because their cases are dealt with under cover within the community. The seriousness of the crimes that are being committed against women, not only by their husband or partner, but in many instances by other family member, goes unnoticed by MPs and perhaps by many community leaders.

We have heard from the hon. Member for Romsey (Sandra Gidley) about how difficult it is to secure legal representation. I am fully aware of that problem, having lived in the community for many years. Domestic violence is one of the most harrowing areas of life of which I am aware. It is so difficult for women who are working on the front line. I assure members of the Committee that the stress suffered 24 hours a day by those who are working with women who have no recourse to public funds is unprecedented.

In my professional life in nursing and since becoming a Member of Parliament, severe cases of domestic violence have been brought to my attention. I know that my hon. Friend the Minister and his colleagues have tried hard to find solutions, but the last resort money is inadequate. We are making attempts to deal with a serious situation but, without question, we are making some women very unequal in our country.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am very sympathetic to the hon. Lady's argument. I have a large ethnic minority population in my constituency. Even if such people have the courage to come forward and let me know about the situation that they or others are in, when I ask whether I can take any action to help them, they often say, ''No, we just wanted you to know about it.'' They do not want me to do anything, because that will create an even more difficult situation for them in the community. Members of Parliament are often aware of such problems, but are prohibited by the very constituents whom they wish to help from doing anything about them. Does the hon. Lady agree that that is even more frustrating, particularly for an MP?

Ann Keen (Labour, Brentford and Isleworth)

Yes, but we are here today to say that such requests have been made to us and that Ministers and their colleagues are trying desperately hard to respond to them. Even though people in that situation may feel at the moment that it is not always possible for us to be their advocates in the community, we have a responsibility to raise these issues—my hon. Friend the Member for Keighley (Mrs. Cryer), who has returned to her place, is an example to us all when it comes to courage and raising such sensitive matters in the community—and these circumstances do not mean that we cannot now find a solution to this very serious problem.

My hon. Friend the Minister and his colleagues are looking seriously at doing that, and the Bill is one of the most important that we could pass for everyone in these communities. It concerns human rights, equality and the decency of women who are trapped in violent situations and may have reached the point of no return. Suicide is very common, and none of us can sit easy with our conscience when we know that. I therefore urge the Minister to be favourable to the situation of women with no recourse to public funds.

Paul Goggins (Labour, Wythenshawe and Sale East)

My feeling is that this is probably one of the most important debates that the Committee will have, and I thank all hon. Members who have contributed so far. The hon. Members for Chesham and Amersham and for Romsey spoke on behalf of their parties, and I also pay tribute to my hon. Friends the Members for Northampton, North (Ms Keeble) and for Brentford and Isleworth (Ann Keen), who spoke from experience of supporting organisations and individuals who are caught in this dreadful situation.

I shall deal briefly with amendment No. 13 and new clause 14 and then move on to the substantial issue. Amendment No. 13 would include in the victims code provisions to exempt victims of domestic violence who are subject to immigration controls from any proceedings that may alter their immigration status while they continue to be victims of, or under threat of, domestic violence. As the Committee is aware, the code is intended to define the minimum statutory services that criminal justice agencies should provide to victims of crime. It is therefore simply not

appropriate for such provisions to be included in the code, however sympathetic we may be to the sentiments behind them.

New clause 14 would place a responsibility on the commissioner for victims and witnesses by requiring him to

''have regard to the effect of the Immigration Rules on victims of domestic violence.''

Given the commissioner's already substantial scope to consider the needs of various victims, and his power to make recommendations to the Home Office, which is responsible for the immigration rules, I am resisting the new clause on the basis that it is already within the commissioner's power to consider such issues. It would merely be a duplication; there is no need to include it.

Sylvia Hermon (UUP, North Down)

Under the Bill as drafted, the remit of the new commissioner for victims and witnesses does not extend to Northern Ireland, but I know that the Minister will bring me good news when we come to debate that and will indicate that it will extend there. However, what he has just explained does not apply to Northern Ireland. We do not have a commissioner with the powers to consider the very special case of women in the situation that has been described.

I remind the Minister that although Northern Ireland has only a few asylum seekers and although we may have our differences one with another, asylum seekers are very welcome. I ask him to reflect on the gap that has become apparent in view of the fact that the remit of the victims commissioner will not extend to Northern Ireland, unless he promises me otherwise.

Paul Goggins (Labour, Wythenshawe and Sale East)

That was a very good spot. We will come to those issues during our deliberations on the victims commissioner. Clearly, this is not the time to go into the detail of that. One of the undertakings that I will give the hon. Lady is that at the conclusion of those deliberations I will ensure that Northern Ireland Office Ministers are aware of our debates. In consultation with communities in Northern Ireland, they will be seeking to ensure that appropriate provisions are made for victims and witnesses there. That is the responsibility of those Ministers, rather than the responsibility of the Home Office. I hope that we can gently tease that out. I have just used an argument in relation to the victims commissioner and she rightly pointed out a slight discordance with its application to Northern Ireland. Wherever that occurs, I will make a note of it and bring it to the attention of my hon. Friends.

On amendment No. 36, the issue of domestic violence victims who are subject to immigration control was discussed thoroughly in the other place, and we had a useful and informative debate on Second Reading. I have made my involvement in those discussions clear throughout. While we do not intend to change the immigration or benefit rules, we intend to try to help and support very vulnerable women.

It might help the Committee if I set out in detail what the Government are doing to support this particular group of victims of domestic violence. This is an area of activity in which we can be pleased to note

the progress being made. As has been mentioned, the immigration rules now make specific provision for an application to be made on the ground of domestic violence and we have extended the types of evidence that can be used as proof of it. Even if it is not possible for a victim to produce evidence of a conviction, a caution or a protection order against their spouse or partner, they can provide other evidence, such as medical reports, letters of support from a refuge or a letter from local social services.

Applications made on that basis are now flagged up and dealt with as a matter of priority within the immigration and nationality directorate. The hon. Member for Romsey referred to this and I am pleased to note that the average time taken to process them has fallen considerably—to about 47 days. That means that where the application is successful and indefinite leave to remain is granted, the time without recourse to public funds is kept to a minimum.

Sandra Gidley (Liberal Democrat, Romsey)

I do not wish to be churlish and I welcome the improvement, but one other issue that has been raised is the fact that if someone does not get a decision in their favour they are no longer entitled to appeal. I understand that there are no special domestic violence measures or relaxations in that regard. Will the Minister clarify the situation?

Paul Goggins (Labour, Wythenshawe and Sale East)

It should be possible to appeal and I undertake to provide the hon. Lady with the information on the process. The issue involves recourse to public funds, but the process should still be in place.

I want to emphasise that we are working with voluntary organisations and others to try to reduce still further that average time of 47 days taken to consider the initial application. I was privileged and pleased to be involved recently in a meeting— alongside several colleagues from this Committee—with representatives from Southall Black Sisters and Women's Aid. I understand that they will shortly be spending a day in Sheffield with the IND caseworker teams that deal with applications for indefinite leave to remain under the domestic violence rules.

I am grateful to the representatives of those organisations for taking part in that activity, which is an important development. It provides an opportunity for them to talk to the caseworkers about domestic violence and the situations in which the victims with whom they are in contact find themselves, as well as for the caseworkers to explain to representatives of the organisations the problems that they encounter and to examine technical issues involving the procedures. The organisations can then better advise the women they work with. I hope that all that improves understanding on both sides and provides a platform for an ongoing and constructive dialogue that leads to an even swifter disposal of the applications.

Sandra Gidley (Liberal Democrat, Romsey)

I am delighted that this exchange is going to take place, but I gather from what the Minister says that the staff of the unit giving special attention to fast-tracking have received no particular training in domestic violence. That concerns me, because there is a general lack of understanding of the

problems relating to domestic violence, so if a specific unit has been set up with caseworkers to deal with the problem, the individuals involved should be made more aware of the wider issues and problems.

Paul Goggins (Labour, Wythenshawe and Sale East)

I agree that the officers who work in that unit should be sensitive, aware and trained appropriately. I am not in a position to comment on the specific training that they receive, but the meeting that they will have with the representatives of Southall Black Sisters and Women's Aid can only help to raise their awareness and understanding, which will be all to the good.

With regard to some changes that we are introducing, we have also agreed that if the applicant has no means of support, applications for settlement on the basis of domestic violence will be exempt from the fee that is normally charged. That is a significant exemption. The charge for postal applications is £155, and personal callers are charged £255. Those fees are waived in such cases.

The supporting people arrangements enable domestic violence victims to get access to housing-related support services. I am aware that those arrangements do not cover rent and living costs, but they have an important part to play in providing services such as advocacy and liaison with statutory agencies. In addition, the Home Office has made a one-off grant of £40,000 to be provided to Women's Aid to bolster its last resort fund—several hon. Members referred to that. This fund has been run by Women's Aid for several years, and its members can apply to it for funding to cover the living expenses of women who are making an application for indefinite leave to remain because of domestic violence. That money will help to meet the rent and living costs of the small number of refuge cases, where the women have no recourse to a public fund.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Does the Minister envisage that amount being granted annually?

Paul Goggins (Labour, Wythenshawe and Sale East)

I will come to the future arrangements in a moment.

I have had good dialogue with members from the organisations mentioned: Southall Black Sisters and Women's Aid. They made it clear that they retain their strong view that we ought to table amendments along the lines that they suggest. I accept their right to hold on to their opinion, but I have also asked them to work with us to find a practical way forward. The impression I have is that they are willing to do that.

First, we need to establish as precisely as we can how many women will fall into this category in any one year. There are some differences of opinion on what the figure might be, but we need to arrive at an agreed figure. Is it 500 or 200? We need to be sure. Secondly, we need to be sure of what the costs would be of supporting those particular individuals in any one year. Thirdly, we need to examine the last resort fund to review its effectiveness and administration to see how well it is meeting need even within its current remit. Those are the three things that I have agreed

with representatives of the organisations and colleagues on this Committee that we need to work on together as we move forward.

Sally Keeble (Labour, Northampton North)

The Minister talks about quantifying the problem. From a substantial Bangladeshi community, over a couple of years there were about six to 10 cases involving about 18 to 20 children—for them there is nothing. If legislation was used properly, it might be possible to make some headway.

Paul Goggins (Labour, Wythenshawe and Sale East)

My hon. Friend spoke powerfully about this issue in relation to children, and it is clear from my remarks that we have far from concluded on it. I will weigh her comments on children very carefully as we continue to discuss the issue with voluntary organisations and others. Clearly, the welfare of children is equally important in such situations.

Sandra Gidley (Liberal Democrat, Romsey)

The Minister referred to ongoing dialogue with Southall Black Sisters and other organisations in order to try to establish, among other things, how much money is involved. I shall refer to a briefing from that organisation. The concerns it deals with might have been raised in early days when information was not available, but I want to put them on record. Southall Black Sisters said

''It is not possible to provide an accurate costing for the funds required to support women with no recourse to public funds. We require statistics from the Home Office on the operation of the Domestic Violence Rule including information on numbers of applicants, numbers of dependants, processing times of applications at all stages of the process including appeal and judicial review, and success rates of applications at each stage. Until we have this information we cannot assess on average for how long women will require support and accommodation and on behalf of how many dependants.''

When I spoke to representatives of Southall Black Sisters, they seemed to believe that the information was not forthcoming. I appreciate that it was early days after the meeting and that it may not yet have been provided with the information, but will the Minister confirm that the information required by the organisations will be provided if possible?

Paul Goggins (Labour, Wythenshawe and Sale East)

My impression from the contacts that I have had in recent weeks is that the organisation is assiduous and persistent in its campaigning, and I suspect that it will remain that way. However, I assure the Committee that we intend to be open and get the benefit of such groups' experience, and we hope that we will be able to add to their understanding. It might not be possible to reach agreement on the figures, and I am not suggesting that it is a certainty that we will. However, we will try, and we shall use their experience and hope that they will benefit from ours.

Let me tell my hon. Friend the Member for Northampton, North that I have already had meetings with Ministers in the Office of the Deputy Prime Minister and will continue to have regular meetings with the Minister for Children as part of my other responsibilities in the Home Office. In all those discussions, we will continue to raise the issue and try to find a way forward, as we are trying to do with the voluntary organisations concerned. I can give my hon.

Friend that assurance. We are trying to avoid the creation of a loophole in our immigration and benefits system through which people who are not the victims of domestic violence might seek to find their way into this country. We want to ensure integrity and public confidence in our benefits and immigration system.

The hon. Member for Romsey mentioned the proposal that we consider pursuing sponsors for the repayment of money; my colleague Baroness Scotland undertook in the other place to consider that. We have done so and we will continue to weigh up the suggestion. However, at this point, we do not feel that it would provide the solution. It works on paper, but in practice it could become a complex and expensive administrative process. In addition, it might put victims of domestic violence at unnecessary risk from people with whom they have had an association in the past, which would concern me more than the administrative cost. We need to weigh those issues up.

Ann Cryer (Labour, Keighley)

I have had experience of that point. I dealt with six cases of very young ladies who were abandoned by their husbands and in-laws. In each case, I felt duty bound to mention the Child Support Agency and say that their husbands should be paying them. Each time, they became absolutely terrified. They would not go to a solicitor to get equal share of a house or do anything like that, as they were scared that their husbands or in-laws would come round to beat them. I am not sure that we can make any progress in that respect.

Paul Goggins (Labour, Wythenshawe and Sale East)

That is my concern, as well. The heart of our concerns has to be the welfare of the women and their children. I am not ruling out the proposal in our deliberations, but it is only fair to point out to the hon. Member for Romsey that we have yet not been persuaded to pursue it. However, we are seeking a practical solution, and I hope that we will be able to come back and give further details, if not to this Committee, then on Report.

I want what other Committee members want: to provide effective support for women who are caught up in a dreadful situation. My argument is simply that we do not need to make further amendments to pursue that aim; we need practical application, and I commit myself to continuing to provide that application to try to find a solution.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I have listened to the Minister, and it is obvious that he has the best interests of this group of people—mostly women—in mind. However, I remain to be convinced. There are a lot of unanswered questions, many raised by the Minister himself.

The dialogues that the Minister said will take place between voluntary organisations and officials in Sheffield will help, but I am not sure that he has arrived in his own mind at a solution to the issues. The matter is complex, but there are a group of isolated people who are not looked after and who are in danger. There will be disappointment that at this stage of the Bill's passage there was nothing in it to indicate the Minister's good intentions.

I know that the issue will be raised on Report, and I will not be so churlish as to press my amendment. There are merits in the other amendments, tabled by the hon. Member for Romsey and Government Members. I will withdraw my amendment, but I give notice to the Minister that this would be a suitable subject to explore on Report, particularly if he gave us more information in advance of Report. He has been courteous in all his dealings with every Committee member. If, after consultation with his officials here or in Sheffield, there are further or better particulars to pass on to the Committee, we look forward to receiving them.

Paul Goggins (Labour, Wythenshawe and Sale East)

Let me underline the fact that, as the situation unfolds, I will keep Committee members fully up to date.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am most satisfied with that. Although I am disappointed, I remain eternally optimistic. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to move amendment No. 18, in clause 21, page 14, line 33, at end insert—

'''services'' means as specified in the code but including protection, personal support, to receive and provide information and to receive explanation.'.

The provision of services to victims of crime goes to the heart of part 3 of the Bill. I would therefore like to ensure that the term ''services'' in clause 21 is fully understood by all those who are required to interpret the legislation. I have been excellently briefed by Victim Support on the amendment, which is based on a set of principles that reflects Victim Support's 30 years' experience of providing services to victims. Those principles are based on its knowledge of the rights that victims say that they would like to have. I know how much store this Government set on consultation; in effect, the consultation has been going on for more than 30 years.

Victim Support has promoted victims' rights for a long time. In 1995, it produced a report called ''The Rights of Victims of Crime'', which stated that such rights should include the right to receive information and explanation about the progress of their case; the opportunity to provide their own information about the case for use in the criminal justice process; the right to be protected in any way necessary; and the right to receive respect, recognition and support. The amendment is based on the wording of the 1995 report. When a similar amendment was debated in another place, concern was voiced that it would not provide sufficient flexibility. Of course, we do not want the description of victim services to be too prescriptive, as we want them to be enhanced in future. However, it can only be helpful for those interpreting the legislation to know the intention behind it, not only now but in years to come. I hope that the redrafted amendment is now considered to be sufficiently general to allow for future enhancements while at the same time setting down the essence of what services will mean for the victims. I look forward to hearing the Solicitor-General's reply.

Sandra Gidley (Liberal Democrat, Romsey)

I welcome the fact that the code will be introduced by statutory instrument, but I am also aware that Victim Support would rather see a minimum prescribed in the Bill. I know of the Government's current intentions. It is important to recognise that victims may need access to a wide range of services. I wish to cite a small example. It is important that health professionals are more aware of the problem of domestic violence. They could easily be expected as a norm to check with patients whether their injuries had been caused by a crime and refer them appropriately. If the Bill sets out that health professionals must be more actively involved, that can only be a good thing.

I do not believe that members of the Committee want the code to be so rigid that it would be difficult to change in the future, but a basic minimum of services outlined in the Bill will protect it from future Governments of whatever colour who might think differently about the subject and want to diminish the support that is available to victims.

Harriet Harman (Labour, Camberwell and Peckham)

Several important points have been made in the debate, and we agree with all of them, but we will resist the amendment. The hon. Member for Romsey is absolutely right. The health service has a critical role to play. A great deal of work has already been done, but there is much more to do to ensure that the health service recognises that as well as treating them for their injuries, its role is that of preventing people becoming victims of further offences. Furthermore, we in the domestic violence inter-ministerial working group regard it important that our colleagues at the Department of Health work with all the NHS organisations, including primary care, GPs, accident and emergency, health visitors and the royal colleges, to bring the health service into the whole picture of domestic violence.

Amendment No. 18 would give examples of services to be delivered to victims of crime by the agencies that are covered by the code of practice. Although it attempts to clarify and define what services may be included in the code and tries to leave open the possibility of other types of services being provided, we consider that it is too prescriptive. It could lead those who are charged with revising the code in the future to believe that any new agency obligation should fall into a category specified in the amendment.

Members of the Committee might be aware that there is a legal principle that, when illustrative examples are provided in statute, it is presumed that a definition is supposed to include only the types of issues in the illustrative example. The irony is that, by saying in a statute, ''For example, X, Y and Z'', there is the consequence of narrowing matters to X, Y and Z, which is the opposite of what the hon. Member for Chesham and Amersham said that she would like to do. That principle could restrict our flexibility when we come to finalise the first version of the code, and it could restrict it even more when the code is revised in future.

Although the hon. Lady's amendment adequately summarises the services in the illustrative draft of the code that we put before Parliament shortly after the introduction of the Bill last September, there is far more opportunity to develop new, innovative services for victims if we do not provide prescriptive examples at the outset. We are still at the relatively early stages of developing and embedding good support for victims. Despite the long decades of good practice in Victim Support, we know that we can and should be doing other things. I do not want us, in our current state of knowledge, to draw a line under that without returning to the House with primary legislation.

We take on board the points that have been raised and welcome those made on behalf of Victim Support and in respect of health services, but we urge hon. Members to resist the amendment.

Sylvia Hermon (UUP, North Down)

I understand that the Solicitor-General is considering the draft code of practice. May I ask her as she does so to reflect on the Northern Ireland code of practice on victims of crime, which was issued in 1998; it is six years old now and out of date. There are great lessons to be learned from the experience in Northern Ireland, particularly because after six years the Northern Ireland Office research and statistical information says that there is a high dissatisfaction rating—42 per cent.—particularly among defence barristers, and that

''A high proportion of interviewees did not have confidence in the effectiveness of the criminal justice system in bringing people who commit crimes to justice.''

That is the experience after six years with a code of practice for victims of crime in Northern Ireland.

Harriet Harman (Labour, Camberwell and Peckham)

I take on board the points that the hon. Lady makes about the Northern Ireland code of practice. I will, like my colleague the Home Office Minister, bring them to the attention of our colleagues in Northern Ireland, and I shall read across for our own work.

Let me now deal with a point made by the hon. Member for Romsey. There is already protection from future Governments in clause 22(9), which says that the service levels in the code cannot be reduced. The truth is that none of us can envisage anybody retreating from this measure. It is hard to imagine that any Government could get away with reducing a path that is so well mapped and on which there is consensus. I ask the Committee to oppose the amendment.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I find it amusing that the Solicitor-General agrees with everything that the Conservatives have said, but encourages the Committee to resist the amendment. It is eminently sensible if, having listened carefully to the objections that were made in the other place, dealt with them and withdrawn the amendments, the Government is still resisting. I will always acknowledge that we do not want to achieve a limitation leading to too prescriptive a definition, but I remain convinced that having no definition could be even more damaging.

The inclusion of the word ''including'' in the amendment fully answered the problems that were mentioned by the Minister in another place and by the

Solicitor-General today. In meetings, there did not appear to be much Government opposition to this proposal, and I was hoping that this amendment would be acceptable as redrafted, but my argument is falling on stony ground.

Sylvia Hermon (UUP, North Down)

Perhaps the hon. Lady could consider the wording of the amendment to which she referred. She put particular emphasis on the word ''including'', but the next word is ''protection''. If the Solicitor-General and others are to force us to a Division on this amendment, it contradicts what she has been saying about non-jury trials. What if those who fear domestic violence and who do not want to be intimidated as a witness in court favour a non-jury trial? The amendment, which includes the word ''protection'', undermines a few of her earlier arguments.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I am not entirely sure that follow that argument. When I moved the amendment, I said that I had tabled it at the particular request of Victim Support, which wanted it to be considered. The report that it sent me some years ago revealed that victims wished to be protected in any way necessary. Victim Support therefore felt that including the definition in the Bill was the right way to proceed.

I do not intend to press the amendment to a vote. It is important to know that the Government have listened carefully to the arguments, but it is disappointing that, even after an attempted revision of the amendment, they still resist it. I am sure that I will not get the amendment past the Committee, but I hope that that will not be the pattern for the rest of the Bill. We hoped that there would be some give and take with the Government in the discussions in the Committee and that the legislation could be refined during its consideration. However, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to consider new clause 16.New Clause 16 Provision of explanations to victims—

New Clause 16 - Provision of explanations to victims—

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I may be moving the new clause inadequately, because I am pleased to do so on behalf of the—

Marion Roe (Conservative, Broxbourne)

Order. I remind the hon. Lady that she cannot move new clause 16 at this stage. The new clause would come further on in the Bill; when we reach that point, it can be moved. We are currently considering whether clause 21 should stand part of the Bill, with which we are also debating new clause 16.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I stand corrected. I chose the wrong words, Dame Marion.

In speaking to new clause 16, I refer to a conversation that I had with the hon. Member for North-East Derbyshire (Mr. Barnes) yesterday. He asked me whether I could speak to the new clause on his behalf. He has been assiduous in backing the provision of explanations to victims—the title of the proposed new clause—not only by tabling early-day motion 1259, with which I am sure the Minister is familiar, but by having the ingenuity to raise the matter in business questions on 10 June. The hon. Gentleman feels particularly strongly about the issue. I know that he has been provided with a written explanation, but I hope that the Solicitor-General will put on the record in the Committee the reasons why the Government resist a provision, which, at first sight, appears eminently sensible. I would also like to know whether the proposed new clause could be applied to lay witnesses. I will listen to what the Minister has to say before I comment further on that.

I shall raise a couple of points on clause stand part debate. Having looked at the indicative draft of the code of practice for victims, I should like to know how the Minister envisages the geographical coverage of that code of practice. For example, if a Glasgow woman were mugged in Carlisle, would she be covered by the code of practice? A Carlisle woman mugged in Glasgow would not be covered by the code. What provisions are there for cross-border co-operation? We have heard about the code of practice for victims in Northern Ireland, but what is there in Scotland, and how will cross-border provisions be dealt with?

I also notice that the indicative draft of breaches of the code includes the opportunity to raise issues with an MP and the Parliamentary Commissioner for Administration. I do not want to get into a discussion on the indicative draft—you would not allow me to, Dame Marion—but because MPs are envisaged as part of the equation, I should like to know what impact assessment has been carried out on the role of the Parliamentary Commissioner for Administration. Notwithstanding that, I am currently filling in a questionnaire, as I believe all MPs are, in connection with the work of various commissioners. I hope that the Minister can address those points.

Harriet Harman (Labour, Camberwell and Peckham)

Clause 21 would require the Secretary of State to issue a code of practice that would be binding on the criminal justice and other organisations that deal with victims of crime and are named in the code. The code will list the services that victims should receive from those organisations. It will build considerably on the current victims charter, creating clear rights for all victims, in terms of information, advice, personal support and protection.

I will have to get back to the hon. Lady on cross-border issues, but I hope that there will be a sensible outcome on those matters.

Under the current indicative draft, the offence has to be committed in England or Wales, and the person providing the service under the code also has to be in England or Wales. However, we hope that the code will be followed as a matter of good practice in cross-border cases; that would make sense. There has been extensive debate with the parliamentary ombudsman about the regulatory impact issues.

In many parts of the country, excellent standards of service are already being delivered to victims by criminal justice agencies and organisations. We want the code to set the minimum consistent standard of service that victims can expect to receive, wherever they live. Clause 21(2) and (4) allows victims of certain crimes or victims with specific characteristics to be treated differently under the code. That reflects the fact that certain victims, such as victims of rape or domestic violence, may require an enhanced service.

Subsection (3) ensures that services can be provided to people other than victims, such as relatives of victims of homicide or parents of child victims. Subsection (6) ensures that it is not necessary for an offender to be charged or convicted before the victim is entitled to receive services under the code. The test for whether the code should apply in a particular case will therefore depend on a judgment, usually of a police officer, regarding the conduct reported or complained about. The clause is drafted to ensure maximum flexibility for the types of services, organisations and local structures covered by the code of practice.

Sylvia Hermon (UUP, North Down)

Will the Solicitor-General bear in mind a phrase used by Baroness Scotland in the other place during the consideration of the Bill? It struck me very deeply. She said:

''I need to be clear that the intention of this legislation is to introduce rights for all victims of crime. We are not looking to create a hierarchy of victims, attaching greater importance to some types of victims than others.''—[Official Report, House of Lords, 11 March 2004; Vol. 658, c. 1452.]

I could not agree more. That is a wonderful sentiment. The Northern Ireland code of practice on victims of crime is now six years old. What in heaven's name is the justification for not extending clause 21 to the people of Northern Ireland today? Why do we have a two-tier system, and why is there a hierarchy of victims? There are those in Northern Ireland to whom the new code of practice will not apply, and those in England and Wales to whom it will.

Harriet Harman (Labour, Camberwell and Peckham)

The noble Baroness was quite right to say that we do not want a hierarchy of victims. Of course, we have to recognise that some victims have greater needs than others, and some offences create greater vulnerability because of the difficulty that the victims face in coming to court. We must have a wide range of services and recognise that different sorts of victims have different needs.

We want to reflect and promote best practice in victim care in the criminal justice system and to encourage positive developments for the future. The victims group and the vulnerable or intimidated witnesses working group in Northern Ireland have created a sub-group to focus specifically on the provision of information to victims. Part of its remit is to review the existing code of practice. I am sure that the hon. Member for North Down will need to discuss that further with our colleagues at the Northern Ireland Office.

Sylvia Hermon (UUP, North Down)

I bring to the attention of the Solicitor-General and all Committee members a recent leaflet, published in 2002 by the Northern Ireland Office, called ''Information for Victims of Crime''. It gives a series of telephone numbers on the back page. For example, under the heading ''Personal Distress'' it states:

''If you are distressed or going through a personal crisis and need a sympathetic ear, telephone The Samaritans.''

That is deplorable. What the Solicitor-General has said is inconsistent with the information that was given to victims of crime in Northern Ireland. It is unacceptable that clause 21 does not extend to the good people of Northern Ireland—of whatever political background. It is awful.

Harriet Harman (Labour, Camberwell and Peckham)

The hon. Lady made her points clearly and with some force; no doubt they will need to be examined.

The debate on new clause 16 has shown an example of the cross-party nature of the issues. The clause seeks to ensure that victims are given explanations in cases where no charges are brought against a suspect, where charges are not proceeded with or where the original charge is substituted with a lesser one. Where no such explanation is given, the organisation concerned will be liable for civil proceedings.

I am grateful to my hon. Friend the Member for North-East Derbyshire for tabling the proposal, and I agree with the sentiment behind what he is seeking to achieve. I apologise to Committee members if they are fed up with my saying that we agree with the sentiment. We must get the sentiment right but we must also get the legislation right. Part of the discussion in Committee is about airing more widely the issues; the lessons will be learned. We must get the legislation in the correct form. I agree with the sentiment, because victims can be left perplexed and angry when they have been led to believe that the charges were to be brought against a particular suspect only to be told, sometimes, as has happened in the past, without further explanation, that charges have been dropped or that they will not be proceeded with. It might be even worse if they are told that a defendant is to be charged with a serious offence and they later learn that the charge has been reduced to what seems like a relatively minor one. It is important that, wherever possible, victims are given an explanation for such decisions.

We think that the new code will achieve that. In the draft code, a copy of which is available in the House Library, the Crown Prosecution Service has just such

an obligation and the police have a similar one in so far as they still have a decision-making role in relation to charging. It is extraordinary to think that it used quite often to be the case that a victim would learn that a charge had been dropped when they read about it in a newspaper. That is the background to all this. People can remember that until quite recently, charges would be dropped or downgraded, and the victim would never be told. To some extent, progress of substance has been made. The CPS has a programme on direct communication with victims and witnesses, and it must now explain to the victim why it is downgrading or dropping a charge.

David Heath (Liberal Democrat, Somerton and Frome)

I am most grateful to the Solicitor-General. Do the provisions to which she has just referred apply to all prosecuting authorities where a prosecution takes place in the name of the Crown?

Harriet Harman (Labour, Camberwell and Peckham)

Perhaps the hon. Gentleman would tell me what examples he is thinking about. I can think only of prosecutions by the Royal Society for the Prevention of Cruelty to Animals, where one would not communicate with the victim. Does he have examples of prosecutions that are not undertaken by the CPS where communication with the victim would be needed? Am I being dense?

David Heath (Liberal Democrat, Somerton and Frome)

I am trying to think of an example, which was why I was slow to rise when the Solicitor-General began to ask for one. I accept that in the case of most other prosecuting authorities there would not directly be a victim. In principle, though, the clause should extend to all prosecuting authorities, and they should be treated in exactly the same way.

Harriet Harman (Labour, Camberwell and Peckham)

I am trying to run through in my mind circumstances in which there could be a personal victim; there will be witnesses but not necessarily a victim. We will think about that.

That change to which I referred was long overdue, and it is becoming routine practice for the CPS to communicate when there is a change in the charge. The current indicative draft of the code does not apply to the Health and Safety Executive, but we can examine that. It is in the scope of the Bill to extend the code, and that is helpful. Therefore, the hon. Gentleman was probably making a more substantial point than he realised.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

That will be music to the ears of the hon. Member for North-East Derbyshire, because when he raised the issue at business questions, he referred to a Department with the responsibility to prosecute refusing to do so and using legal and professional privilege to escape that responsibility. He obviously had specific cases in mind—

David Heath (Liberal Democrat, Somerton and Frome)

The Department of Trade and Industry.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

Indeed.

What the Solicitor-General said is probably good news, but there seems to be a lacuna. There is no doubt that nothing would bring the victims code of practice into disrepute more quickly than people feeling that

they had been left out of the equation, not knowing what had happened and reading about it all in the newspapers or hearing it on the news.

Harriet Harman (Labour, Camberwell and Peckham)

Unfortunately, I had not got to my ''however'' point. I hope that the hon. Lady will still be as pleased when I have made it.

However, there may be occasions on which it is not possible to provide an explanation for a decision. It might, for example, jeopardise the continuing investigation of the offence or put the safety of a suspect at risk. In those circumstances, the CPS is expected to record the reasons for not passing on an explanation.

As for enforcement of the code, we are particularly keen to avoid setting up a new area of litigation during the drafting process. Complaints will therefore be investigated by the Parliamentary Commissioner for Administration, who will have access to all the documentation necessary to judge whether the police and the CPS have behaved reasonably in withholding explanations in a case.

I hope that those new procedures satisfy my hon. Friends. If not, I regret to say that we have to resist new clause 16.

Question put and agreed to.

Clause 21 ordered to stand part of the Bill.

Clause 22 - Procedure

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I beg to move amendment No. 20, in clause 22, page 14, line 39, leave out

'and the Lord Chancellor'

and insert

'the Lord Chancellor and the Commissioner for Victims and Witnesses as appointed under section 25(1).'

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss amendment No. 21, in clause 22, page 15, line 5, leave out 'and the Lord Chancellor' and insert

'the Lord Chancellor and the Commissioner for Victims and Witnesses as appointed under section 25(1);'.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I hope that I am giving the Government an opportunity to state on the record that the commissioner for victims and witnesses will be consulted even if he or she is not named in the Bill. The Bill does not specifically include the commissioner in the consultation process for preparing a draft of the victims code. That process is established under clause 22. The amendment would ensure that the new commissioner was fully consulted when the Home Secretary prepared and considered the draft code or any revisions before it was laid before Parliament.

The role of the commissioner is to be newly created, with his or her appointment being made by the Home Secretary under clause 25(1). To that extent, the commissioner will have statutory duties that are directly relevant to any revision of the code. For example, the Bill obliges the commissioner to keep the code under review and enables him or her to make proposals ad hoc to the Home Secretary. Clause 22

lays out the formal consultation process prior to introducing and revising the code. However, although it ensures that the Attorney-General and the Lord Chancellor are consulted, it does not provide the commissioner with an identified role at that stage. That is a missed opportunity.

On Report in the other place, a similar amendment was debated together with an amendment that would have enabled the commissioner as well as the Home Secretary to initiate revisions to the code of practice. At that point, concern was expressed that the commissioner's role had not been specified in sufficient detail. The Government responded by voicing concern that those amendments might trespass on the proper role of the elected Executive to make decisions about policy and resourcing.

The noble Baroness Scotland of Asthal said:

''Of course responsibility for making decisions which may directly impinge on the allocation of resources will be properly discharged by the ministerial officers and their colleagues along with the Secretaries of State who will be entrusted with that task . . . It would be inappropriate for the commissioner to have such a large role to play in relation to the code of practice. The commissioner will be able to offer his comments and amendments to the Secretary of State; and his suggestions will be given very serious consideration by the Government.''—[Official Report, House of Lords, 11 March 2004; Vol. 658, c. 1434-5.]

I have taken on board what the Government have said about the distinct roles of Ministers and the commissioner. Therefore, the amendment provides the commissioner not with the power to make any decisions in respect of resources but merely with the right to be consulted. That is the nub of the matter.

The amendment would ensure that the consultation process takes full advantage of both the commissioner's statutory duty to keep the code under review and his or her knowledge and experience of victim issues. By providing the commissioner with a specific named role in the consultation, the Government will benefit from his or her expertise, and they will have a clear remit to work within. The Minister said that the Government would give the commissioner's suggestions serious consideration. If that is the Government's intention, including in the Bill a duty to consult the commissioner Parliament would underscore that intention in statute.

The amendment will enable the commissioner to discharge his or her role effectively at the heart of victim and witness policy. At the same time as giving effect to the Government's intention, the amendment will go some way to addressing the concerns of those in the other place who argue that there is insufficient clarity about the role of the commissioner.

When the Minister in the Lords responded to this point, she was also dealing with a stronger amendment to give the commissioner greater powers to revise the code. I assure the Minister that this amendment does not provide the commissioner with decision-making powers that would affect public policy and resources. The argument on this occasion is about ensuring that the commissioner is at the heart of the consultation process in victims policy. My understanding is that the

Government have suggested that they are keen to do that. Therefore, I would be interested to hear the Minister's response to this point.

David Heath (Liberal Democrat, Somerton and Frome)

We concur.

Paul Goggins (Labour, Wythenshawe and Sale East)

This will be a brief response, and I hope that it provides the hon. Member for Chesham and Amersham with the reassurance that she seeks.

Amendments Nos. 20 and 21 would introduce a requirement for the Secretary of State to consult with the commissioner for victims and witnesses when drafting and revising the code of practice. We resist them because it would be inappropriate for the commissioner to have a statutory role in relation to the code of practice.

The commissioner will have a key responsibility in ensuring the effectiveness of the code. The commissioner will also be an important source of advice to my right hon. Friend the Home Secretary in relation to the code, as and when it is revised, along with other sources, such as the Parliamentary Commissioner and the agencies that have signed up to deliver on the obligations in the code. However, overall responsibility for the code and any revisions to it must lie with the Secretary of State, in conjunction with his criminal justice ministerial colleagues, as he is the person who is democratically accountable and in the best position to consider issues about resources and wider policy matters. I hope that that offers some reassurance that the commissioner's voice will be sought out and listened to. However, we resist the idea of placing that on a statutory footing.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I appreciate what the Minister has said, and it leaves me fairly satisfied that the commissioner will be part of the consultation process even if that is not stated in the Bill. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Mrs. Gillan: I beg to move amendment No. 19, in clause 22, page 15, line 9, at end insert

', and at the same time

(c) publish the reasons why he has or has not modified the draft in the light of any such representations'.

The amendment will help ensure that the Government make policy decisions about the victims code in an open, accountable and timely manner. Equally importantly, it will demonstrate that the Government have listened to the views of other stakeholders and the public. I am sure that it will appeal to the Minister because I know that he takes to heart the transparency of government and would wish to see it reflected in the Bill. Therefore, although he has resisted every amendment to date, I hope that he will look more favourably on this one.

I believe that the amendment will improve the consultation process outlined in the Bill by ensuring that the Home Secretary, in light of public consultation, publishes the reasons for policy decisions affecting the finalised version of the victims code and does so at the appropriate time.

The Bill sets out the process for introducing and revising the code, and it stipulates how the public should be consulted. However, it does not provide for a clear and accountable outcome to the process. The gap is significant because of the importance, widely acknowledged, of including stakeholders and members of the public at every stage of the policy-making process. The importance that the Government place on that and other areas of public involvement was clear when the Prime Minister introduced the new code of practice on consultation in January. He observed that the new guidance strengthened the commitment to providing respondents with feedback, and he noted that it was important to make consultation processes easier for people to engage with. Armed as I am with the words of the Prime Minister, I hope that the Minister will move in my direction and look even more favourably on the amendment.

Given that the latest good practice on consultations endorsed by the Government states that public engagement is vital and that outcomes are a key part of any consultation, adopting the amendment would demonstrate a commitment to public engagement in policy making at the key-outcome stage. Section 4 of the code of practice on consultation states that it is good practice to give

''feedback regarding the responses received and how the consultation process influenced the policy.''

It directs Government Departments specifically to publish a summary of responses and stipulates that, wherever possible, that summary should include a summary of next steps for the policy, including the reasons for the decisions taken.

The amendment would help to guarantee that the Home Secretary will not only give due consideration to representations made to him by key stakeholders and the public, but will demonstrate a willingness to listen to the public's voice when reaching final decisions in victims policy. In other words, this is straight out of the Government's mouth—the horse's mouth—and I hope that the Minister will accept it.

David Heath (Liberal Democrat, Somerton and Frome)

We again concur.

Paul Goggins (Labour, Wythenshawe and Sale East)

I suspect that the hon. Member for Chesham and Amersham will, once again, be pleased and disappointed by my response. I hope that her pleasure will be sufficient to lead her to withdraw the amendment.

Amendment No. 19 specifies that the Secretary of State should publish his reasons for accepting or rejecting suggestions to amend the code as a result of public consultation. I am happy to confirm to the hon. Lady and the Committee that it is my right hon. Friend the Home Secretary's firm intention to publish his response to the consultation with stakeholders on the contents of the code. However, that will be in line with the best practice guidance issued by the Cabinet Office, rather than through an amendment to this Bill. I hope that, with that assurance, the hon. Lady will withdraw the amendment.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

As usual, the Minister seeks to excite me and disappoints me at the last minute. I am most upset that he will not accept the amendment. I thought that it added to the Bill, and that was the view of many outside bodies, including Victim Support. I suppose that I will have to make do with the conciliatory remarks at the beginning of his response. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 ordered to stand part of the Bill.

Clause 23 - Effect of non-compliance

Sylvia Hermon (UUP, North Down)

I have a minor, technical point to make. The Minister will be able to dismiss it quickly and resolve the question in my mind.

Given the example of the old code in Northern Ireland, I presume that the need to comply with the code of practice for victims will apply to the police. Subsection (2) says that

''the code is admissible in evidence in criminal or civil proceedings and a court may take into account a failure to comply with the code in determining a question in the proceedings.''

Will a police officer's failure to comply with the code of practice for victims give rise, in England and Wales, to a complaint against them to the Police Complaints Commission? If the code were, in the fullness of time, to be extended to Northern Ireland, would a police officer's failure to comply give rise to a complaint to the Police Ombudsman for Northern Ireland?

Paul Goggins (Labour, Wythenshawe and Sale East)

In all fairness to the hon. Lady, I am looking carefully at clause 23(2), to which she refers. It does not mention the independent Police Complaints Commission. I shall seek clarification and write to the hon. Lady to confirm whether it would be admissible. My assumption is that it would be, but I do not want to commit myself in case I am wrong and mislead her.

Question put and agreed to.

Clause 23 ordered to stand part of the Bill.

Clause 24 ordered to stand part of the Bill.

Schedule 4 - Investigations by Parliamentary Commissioner

Paul Goggins (Labour, Wythenshawe and Sale East)

I beg to move amendment No. 73, in schedule 4, page 31, line 23, after 'by', insert 'any of these'.

Marion Roe (Conservative, Broxbourne)

With this it will be convenient to discuss the following:

Government amendments Nos. 74, 72, 75, 76, 77 and 83.

Government new clause 23—Victims of persons sentenced to imprisonment or detention.

Government new clause 24—Victims of persons subject to hospital order with restriction order.

Government new clause 25—Victims of persons subject to hospital direction and limitation direction.

Government new clause 26—Victims of persons subject to transfer direction and restriction direction.

Government new clause 27—Duties of local probation boards: interpretation.

Government new clause 29—Victims of mentally disordered persons: Northern Ireland.

Paul Goggins (Labour, Wythenshawe and Sale East)

The amendments provide a right for the victims of sexual or violent offences to be consulted and to make representations about the conditions of release of offenders. That right was introduced for the victims of offences when the offender received a prison sentence under the Criminal Justice and Court Services Act 2000, but there was no equivalent provision when the offender was detained under the Mental Health Act 1983. Victims of offences committed by mentally disordered offenders were left in ignorance of arrangements for the return to the community of those offenders.

The proposals remedy that deficiency. They have been the subject of wide consultation in the context of the draft Mental Health Bill when they attracted general support. They are strongly supported by groups representing the victims of offences committed by mentally disordered offenders. I stress that that does not mean that confidential medical information about offenders will be revealed. The provisions enable the victims of offences committed by mentally disordered people to be advised about arrangements for discharge and to make representations about the safeguards that they wish to see in place for their own safety and peace of mind.

The provisions will enable victims of mentally disordered offenders to know that the system has not abandoned them and that their legitimate concerns can be heard by those taking decisions about returning offenders to the community. Victims will feel secure that they will not one day find themselves confronting the person who caused them such harm, without having known that the person was, in fact, back in the community.

David Heath (Liberal Democrat, Somerton and Frome)

Do the provisions apply to those who were put into custody at a court martial?

Paul Goggins (Labour, Wythenshawe and Sale East)

My understanding is that precisely the same rules that apply throughout the general system will also apply to courts martial. Thus, the same provisions will apply. If I am advised to the contrary—[Interruption.] It seems that my advice this time is not in my favour. When I was advised previously, the answer was that the provisions would be the same and in parallel. However, on this occasion, I have been advised that the same rules do not apply to courts martial.

David Heath (Liberal Democrat, Somerton and Frome)

I find it helpful to have that answer, but it is not quite so helpful to the victims of a crime committed by a person who happens to be in military service. Should it not apply to people who are subjected to proceedings at courts martial?

Paul Goggins (Labour, Wythenshawe and Sale East)

Given that I did not readily know the answer to the hon. Gentleman's question, the least that I can do is reflect on his argument. Having thought about it, I shall certainly return to him with my conclusions. I am grateful to him.

The new clauses incorporate existing provision in section 69 of the Criminal Justice and Court Services Act 2000 and would add to them, so that the rights and duties are not arbitrarily removed if an offender becomes subject to powers under the Mental Health Act 1983. New clause 29 would amend the Justice (Northern Ireland) Act 2002 to require the Secretary of State to create a similar scheme for victims of mentally disordered offenders in Northern Ireland. In principle, the Northern Ireland scheme would closely mirror the England and Wales model.

In England and Wales, local probation boards would be tasked with providing the service to victims, while in Northern Ireland it is more appropriate that the duty should fall to the Secretary of State. I hope that the hon. Member for North Down is pleased that we shall extend the provisions. There will be small differences between Northern Ireland and England and Wales in operation and organisation, but the spirit and objective will remain the same, and I hope that the outcome will be the same. With that assurance, I hope that the Committee supports the amendment.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I understand entirely what the Government are attempting to do with these amendments, but I have a couple of questions that arise from their drafting and the principle that is established by the way in which the Government seek to maintain the victim's involvement if any aspect of a hospital order is invoked for the offender. I appreciate that new clauses 25 and 26 in particular cover the eventualities of an offender going to hospital and, on recovering enough, being taken to prison, and of a person being sent to prison and subsequently being transferred to hospital.

I have a problem with new clause 24 with which the Minister may be able to help. Subsection (2) states that only one of the conditions laid out in the new clause needs to be met in respect of the offender before the new provisions bite. At subsection (2)(b), the conditions include a situation where

''a verdict is returned that the patient is not guilty of the offence by reason of insanity''.

If an offender has been judged to be insane, why should the victim, in this narrow instance, be consulted on the release of that individual? I could understand the victim being informed—that is reasonable, and probably desirable—but it will be a matter of fact that the decision has been reached that the offender is insane, so it will be interesting to know how the Minister envisages the consultation process taking place. It will be the doctor who reaches the conclusion that the offender can be released; it is difficult to imagine the conversation that will take place. It might go like this: the doctor says, ''It's all right. How do you feel about it?'' Without an insight from the Minister, this could be viewed as a gimmick, so I look forward to his explanation.

I would like to hear how these provisions—in particular, the one I have just referred to—square with human rights legislation. How can the Minister be certain that revealing the doctor's views on the mental health of the offender is not revealing medical information that would in other circumstances be treated as confidential?

Once again, I ask about the resource implications, particularly because the burden falls on the probation boards. What extra training and manpower have been allowed for? When will an impact assessment be prepared for the new clauses? The Minister knows only too well that with the advent of the National Offender Management Service the probation service is somewhat challenged at the moment, and is certainly under pressure right across the board, so much so that in many instances a fully trained probation officer is often not the person who interviews offenders. The implications are particularly important for the probation service.

Lastly, there are cross-border implications. Are there similar provisions in Scotland? What are the cross-border implications of the Government amendments and proposals? What happens if a foreign national is involved, and, having been detained under the provisions identified in new clause 24, he or she is deemed fit to leave hospital and becomes eligible for deportation? Is the involvement of victims covered in that instance? Obviously, that situation is not outwith the realms of possibility, and I am sure that the Minister is well aware of similar cases.

Paul Goggins (Labour, Wythenshawe and Sale East)

I was waiting for the hon. Member for Somerton and Frome to concur with the hon. Lady, but he has decided not to on this occasion.

I shall do my best to respond to the points raised by the hon. Member for Chesham and Amersham. There are several routes by which a mentally disordered offender may go from court through a period of custody and care and back into the community. Sometimes they will go to prison, sometimes to secure mental hospitals, and sometimes it will be a combination of the two. We want a standard form to apply.

The hon. Lady mentioned consultation with victims. I hasten to add that consultation is not the equivalent of a veto, but it is intended that the probation service—the service responsible for carrying out that work—should listen carefully to victims' legitimate concerns. As with serious offenders leaving prison, offenders leaving secure mental hospital may have conditions attached to their release—to reside in a certain place, for example. The power of consultation is designed simply to ensure that the views and legitimate concerns about when and where people might live are fully considered so that the probation service and other authorities have all the information to hand when setting such conditions.

I can confirm that our proposals are compatible with human rights legislation. We have made that clear throughout the Bill, and the point applies here too. We have discussed in other forums the issue of the

probation service. It does fantastic work under huge pressure—pressure that has been relieved to some degree by the additional £16 million that I was able to announce a few weeks ago. From the conversations that I have had on a local level and elsewhere, it seems to have been well received.

On cross-border issues, the probation board will, if it is appropriate, let the victim know that the offender has moved out of the jurisdiction. The case would then be dealt with under the rules of the receiving jurisdiction. Clearly, there will be a duty to communicate that information, but the offender would be dealt with under the regulations that pertain to where they reside.

I hope that I have been able to respond to at least most of the issues that the hon. Lady mentioned.

Dame Cheryl Gillan (Conservative, Chesham and Amersham)

I thank the Minister for his response, but I am still not satisfied. I do not believe that he has dealt with my point about new clause 24(2)(b) and when

''a verdict is returned that the patient is not guilty of the offence by reason of insanity''.

I had hoped that he might get further inspiration to satisfy both me and my hon. Friend the Member for Beaconsfield, who is getting hot under the collar at the lack of a response. The Minister's other option is to write to us, and provided we could revisit the issue at a later stage, I would be willing to take information in the form of a letter.

Paul Goggins (Labour, Wythenshawe and Sale East)

That is extraordinarily helpful. I suspect that the letter may be being drafted as we speak.

Dominic Grieve (Conservative, Beaconsfield)

I apologise for arriving at such a late stage in the proceedings, although better late than never.

There is an important point here. If someone has never been convicted of an offence but is detained in a mental hospital, there are some curious issues about how much information can be shared with their ''victim''—a victim in reality but not one who comes after a conviction in law—about that person's release from hospital. I would be grateful if the Minister considered the point, as there are significant, rather than dreamt-up, questions about how consultation should happen in such circumstances. I would be grateful if the Minister could answer that.

Paul Goggins (Labour, Wythenshawe and Sale East)

I was grateful for the offer from the hon. Member for Chesham and Amersham to write to her, as I saw the hon. Member for Beaconsfield come refreshed into the Room after we had been debating these issues for some time. However, even at this stage, we may have some helpful information.

Under clause 17, a hospital order may be made where a person is not guilty by insanity. The victim has the same interest in knowing what will happen to the perpetrator as they would have had if he had been

convicted. The victim will have suffered the same trauma, and we must emphasise the interests of the victim. Trying to understand the pain and difficulty that they have faced is our motivation. I hope that the hon. Lady and hon. Gentleman can regard that as a down payment on a letter to follow.

In the time that we have had to reflect on that matter, I have also had time to reflect on another issue that the hon. Lady raised—deportation. If a person were to be deported on his release from prison, it would be open to the probation board to tell the victim, if that was considered appropriate. Clearly, there has to be some discretion about whether that is in the interest of the victim, and the judgment must be

made by the probation officer concerned. I hope that that offers some reassurance to the hon. Lady on that matter; on the other point, I will write.

Amendment agreed to.

Amendment made: No. 74, in schedule 4, page 31, leave out lines 27 to 29 and insert—

'(b) sections [Victims of persons sentenced to imprisonment or detention] to [Victims of persons subject to transfer direction and restriction direction] of that Act (duties of local probation boards in connection with victims of sexual or violent offences).'.—[Paul Goggins.]

Schedule 4, as amended, agreed to.

Further consideration adjourned.—[Mr. Heppell.]

Adjourned accordingly at twenty-five minutes to Six o'clock till Thursday 1 July at ten minutes past Nine o'clock.