Lord Marks of Henley-on-Thames (LD)

My Lords, once again I am extremely grateful to the noble and learned Lord, Lord Thomas, for his note of caution about Amendment 3—and Amendment 8 in the case of service personnel—which would allow victims to request that an order be made. I completely agree with him that it is a matter for the judiciary to exercise its discretion as to whether orders are made. I am not entirely sure that the noble Lord, Lord Sandhurst, took into account quite how difficult it is going to be to make these orders. I suggest that the caution of the noble and learned Lord, Lord Thomas, about bringing the victim in as effectively a party to such an application is a point well made. But I accept that it is right that the victim’s voice should be heard. I also agree with the noble and learned Lord, Lord Thomas, that the victim’s voice in court now is heard in a way that it certainly was not decades and even years ago. But a formal position whereby the victim was entitled to make a request is probably undesirable, though it is quite clear that the victim’s voice should be heard and that guidance to and from the judiciary should reflect that. Amendments 4 and 9 are effectively seeking a very serious conflict: “If the court is minded not to make an order under subsection (2), the court has a duty to consult the victim, or, where the victim is deceased or is unable to be consulted … a family member or other appropriate representative”. That would put the victim in a wholly invidious position of effectively making the victim compulsorily a party to the application for an order. That is likely to stoke up hostility between the victim and the offender, which we are trying to avoid or at least reduce, and even possibly between the victim and the court, which would be a thoroughly undesirable position. Far better, I suggest, to leave it to the judge to decide how the victim’s views should be sought and taken into account, without imposing any duty on the court to consult the victim at any stage. It would be much better for the Bill to remain silent on how the victim’s views should be sought, but the expectation will be that they will be sought, and I have no doubt that that is how the judiciary would approach this exercise.