My Lords, this amendment raises the relationship between the civil order and the criminal conviction that can result from a breach of it. I hope that this debate is as constructive as the last one, because my intention is not to divide the House but to get on record the explanation of how a DAPO—a domestic abuse protection order—and the breach of it will work.
The order may be made if the court is satisfied on the balance of probabilities, which is the civil standard of proof, that an individual has been abusive to someone with whom he or she has a personal connection— I find it difficult to use “they” of the singular. It is also a condition that the order is
“necessary and proportionate to protect that person from domestic abuse, or the risk of domestic abuse”.
The civil court can impose requirements and the Bill gives examples, such as non-contact, not going to specified premises and electronic monitoring. If the subject of the order fails to comply with a requirement, without reasonable excuse, it is an offence of which he or she may be convicted. If found guilty, he or she is liable to a fine or imprisonment up to five years.
We debated protection notices and orders in Committee. The Minister, the noble Lord, Lord Wolfson, in a long and helpful reply, said that he agreed with the aims of our amendments and he summarised them correctly as:
“to ensure procedural fairness so that criminal liability and punishment for breach of a DAPO will occur only where the breach is proved to the criminal standard of proof”.
He also said:
“One of the strongest elements of a DAPO is that it is a civil order, made on the civil standard of proof. That means that if a victim is not able to, or chooses not to, seek remedy through the criminal justice system, they can still access protection from the court.”—[Official Report, 1/2/21; cols. 1950-51.]
I wonder whether the Minister can unpack that “not able”—why not? And “chooses not to”—why would we not require that course to be pursued? I understand, as much as someone who has not been in this situation can, the difficulties facing someone going through everything in a court, which is an issue that we will come to later. It is important to enable a victim to pursue both justice and protection, but it is also important to have regard to the rights of an alleged perpetrator, which is about the standard of proof to be attained.
2.45 pm
The Minister wrote after the last stage, and I thank him for that, referring to a question that I asked in Committee about the experience of applying the alternative of contempt of court to punish the breach of an order. The letter did not answer that point, and that may be because it is not known how often that route is taken in the case of comparable civil orders.
He said—and this is another aspect of my questions—that choosing not to pursue a breach as a criminal matter allowed victims to obtain protection
“based on their individual circumstances.”
Can he amplify on that? How does it come about? Do the police advise victims on their choice? Is there guidance or a code of practice? Does the CPS get involved at this stage?
The primary reason for the amendment is to ask the Minister to repeat, from the Dispatch Box, the clear statement that he made in his letter about standard of proof. He wrote emphasising
“that a breach will not result in an automatic prosecution. … the breach will need to be reported to the police, who will then investigate and refer to prosecutors for a decision on whether to pursue a prosecution. Criminal sanctions will only be imposed following a conviction for the breach offence in the criminal court, which would need to be proved to the criminal standard in the usual way. By this, I mean that the matter will be dealt with by a criminal court which will automatically apply the criminal standard of proof when deciding whether to convict.”
That was reassuring, but it is better to have it on record in the Official Report. Therefore, I beg to move.