My Lords, as I indicated in Committee, I agree with the general aim of the amendment, which is to ensure that criminal liability and punishment for a breach of a DAPO should occur only if the breach is proved to the criminal standard of proof. I heard from the noble Baroness, Lady Hamwee, and a number of other contributors to this short debate that the essential purpose of the amendment is for me to repeat from the Dispatch Box what I set out in a letter. I will aim to do just that.
I therefore make two main points. First, a breach of a DAPO is a criminal offence. As with all criminal offences, this will require the police to investigate the case and refer it to prosecutors, who will decide whether to pursue a prosecution. Secondly, the fact that a breach of a DAPO is a criminal offence means that, as with all criminal offences, the criminal standard of proof will apply automatically when the court is dealing with the case. A criminal conviction cannot be entered, or criminal sanctions imposed, unless and until the criminal standard of proof has been met.
The criminal standard of proof applies, therefore, when we are dealing with a breach of a DAPO. It does not apply when we are dealing with the making a DAPO. When we look at whether a DAPO should be made, the civil standard of proof applies—that is, the balance of probabilities. But in order to impose criminal sanctions for its breach, the criminal standard of proof will apply—that is, beyond reasonable doubt. I hope that has set out the position clearly and unambiguously.
Picking up on the point made by the noble Baroness, Lady Fox of Buckley, “beyond reasonable doubt” is the standard of proof; “without reasonable excuse” is an element of the offence, which would have to be proved to that standard. That is the difference between the two phrases.
We have taken this approach to the DAPO because we want to send a clear message to perpetrators that breach of an order is a serious matter and will be acted on. As I stated in Committee and during my engagement with the noble Baroness and others since, this approach is similar to other civil protective orders that carry criminal liability for breach, such as the non-molestation
order, stalking protection order and knife crime prevention order. The approach is therefore consistent with our existing legal framework.
The noble Baroness, Lady Hamwee, asked why some victims may not want to go for criminal sanctions. That might not be their preference for a number of reasons. First, they may be concerned about the possible consequences for their partner or ex-partner and would not want them criminalised for a breach or, indeed, if the point of the question was, “Why isn’t the original order criminal?”
Fundamentally, the proposed orders are intended to be preventive and not punitive. They will enable courts to impose positive requirements which can help to achieve long-term sustainable behaviour change and challenge perpetrators to address their abusive behaviour. For example, the perpetrator might be required to attend a behaviour change programme or an alcohol or substance misuse programme, or undergo a mental health assessment. That may help those victims who wish to maintain a relationship with their partner or family member but want the abuse to stop. It is a strength of the DAPO that it is such a flexible remedy.
The noble Baroness, Lady Hamwee, raised contempt of court. If a victim wanted a breach of an order other than one made in a magistrates’ court to be dealt with as a civil contempt of court, they could make a committal application to the court, including for an arrest warrant, if necessary. In those circumstances, the court has the power to remand the perpetrator on bail or in custody. We would expect that victims’ views would be considered, together with other questions of public interest, when deciding which sanction for breach is appropriate.
On her point about the guidance, the noble Baroness, Lady Hamwee, will recall that in Clause 48 there is a provision for guidance to the police, and in Clause 73 there is provision for guidance to others, including victims.
This is one of the strengths of the DAPO when compared to other existing orders used in these cases, such as the domestic violence protection order. The responses to our consultation highlighted that the absence of a criminal sanction following breach of the DVPO limits the effectiveness of that order. We have therefore ensured that non-compliance with a DAPO is met with the appropriate consequences. In that regard, I reiterate a point I made in Committee: in its report, the Joint Committee did not raise issues with using the civil standard of proof for making a DAPO when examining the draft Bill.
As the noble Lord, Lord Ponsonby, noted, the noble Lord, Lord Paddick, raised on a number of occasions that we are making a move from civil standard to criminal standard when breached. With respect, I have set out the Government’s position in response to that on a number of occasions. We are satisfied that the system we have in the Bill is appropriate. There is nothing in the point, I would respectfully say, that there is something wrong with criminal sanctions on breach for an order made on the balance of probabilities. They are two conceptually distinct questions First, what is the standard for the order to be made? Secondly, what do you have to prove for criminal sanctions when there is a breach of that order?
As for the question on going to the magistrates’ court, one of the strengths of this order is that it can be issued quickly in response to a crisis incident, as with the existing domestic violence protection order. As the noble Lord, Lord Ponsonby of Shulbrede, said, ultimately, we are dealing with the question of protection for victims.
I hope that my explanations on the standard of proof in this short debate, alongside the explanations I provided in Committee and my subsequent discussions with noble Lords, have been helpful. I hope that what I have said today has been clear and unambiguous. I therefore respectfully invite the noble Baroness to withdraw her amendment.