Domestic Violence, Crime and Victims Act 2004

2004 c. 28

An Act to amend Part 4 of the Family Law Act 1996, the Protection from Harassment Act 1997 and the Protection from Harassment (Northern Ireland) Order 1997; to make provision about homicide; to make common assault an arrestable offence; to make provision for the payment of surcharges by offenders; to make provision about alternative verdicts; to provide for a procedure under which a jury tries only sample counts on an indictment; to make provision about findings of unfitness to plead and about persons found unfit to plead or not guilty by reason of insanity; to make provision about the execution of warrants; to make provision about the enforcement of orders imposed on conviction; to amend section 58 of the Criminal Justice Act 2003 and to amend Part 12 of that Act in relation to intermittent custody; to make provision in relation to victims of offences, witnesses of offences and others affected by offences; and to make provision about the recovery of compensation from offenders.

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Part 1Domestic violence etc

Amendments to Part 4 of the Family Law Act 1996

1Breach of non-molestation order to be a criminal offence

In Part 4 of the Family Law Act 1996 (c. 27) (family homes and domestic violence), after section 42 insert—

42AOffence of breaching non-molestation order

1

A person who without reasonable excuse does anything that he is prohibited from doing by a non-molestation order is guilty of an offence.

2

In the case of a non-molestation order made by virtue of section 45(1), a person can be guilty of an offence under this section only in respect of conduct engaged in at a time when he was aware of the existence of the order.

3

Where a person is convicted of an offence under this section in respect of any conduct, that conduct is not punishable as a contempt of court.

4

A person cannot be convicted of an offence under this section in respect of any conduct which has been punished as a contempt of court.

5

A person guilty of an offence under this section is liable—

a

on conviction on indictment, to imprisonment for a term not exceeding five years, or a fine, or both;

b

on summary conviction, to imprisonment for a term not exceeding 12 months, or a fine not exceeding the statutory maximum, or both.

6

A reference in any enactment to proceedings under this Part, or to an order under this Part, does not include a reference to proceedings for an offence under this section or to an order made in such proceedings.

“Enactment” includes an enactment contained in subordinate legislation within the meaning of the Interpretation Act 1978 (c. 30).

2Additional considerations if parties are cohabitants or former cohabitants

1

Section 41 of the Family Law Act 1996 (c. 27) (which requires a court, when considering the nature of the relationship of cohabitants or former cohabitants, to have regard to their non-married status) is repealed.

2

In section 36(6)(e) of that Act (court to have regard to nature of parties' relationship when considering whether to give right to occupy to cohabitant or former cohabitant with no existing right), after “relationship” insert “ and in particular the level of commitment involved in it ”.

3“Cohabitants” in Part 4 of 1996 Act to include same-sex couples

In section 62(1)(a) of the Family Law Act 1996 (definition of “cohabitant” for the purposes of Part 4 of that Act), for the words after “ “cohabitants” are” substitute “ two persons who, although not married to each other, are living together as husband and wife or (if of the same sex) in an equivalent relationship; and ”.

4Extension of Part 4 of 1996 Act to non-cohabiting couples

In section 62(3) of the Family Law Act 1996 (definition of “associated” persons for the purposes of Part 4 of that Act), after paragraph (e) insert—

ea

they have or have had an intimate personal relationship with each other which is or was of significant duration;

Causing or allowing the death of a child or vulnerable adult

5The offence

1

A person (“D”) is guilty of an offence if—

a

a child or vulnerable adult (“V”) dies as a result of the unlawful act of a person who—

i

was a member of the same household as V, and

ii

had frequent contact with him,

b

D was such a person at the time of that act,

c

at that time there was a significant risk of serious physical harm being caused to V by the unlawful act of such a person, and

d

either D was the person whose act caused V’s death or—

i

D was, or ought to have been, aware of the risk mentioned in paragraph (c),

ii

D failed to take such steps as he could reasonably have been expected to take to protect V from the risk, and

iii

the act occurred in circumstances of the kind that D foresaw or ought to have foreseen.

2

The prosecution does not have to prove whether it is the first alternative in subsection (1)(d) or the second (sub-paragraphs (i) to (iii)) that applies.

3

If D was not the mother or father of V—

a

D may not be charged with an offence under this section if he was under the age of 16 at the time of the act that caused V’s death;

b

for the purposes of subsection (1)(d)(ii) D could not have been expected to take any such step as is referred to there before attaining that age.

4

For the purposes of this section—

a

a person is to be regarded as a “member” of a particular household, even if he does not live in that household, if he visits it so often and for such periods of time that it is reasonable to regard him as a member of it;

b

where V lived in different households at different times, “the same household as V” refers to the household in which V was living at the time of the act that caused V’s death.

5

For the purposes of this section an “unlawful” act is one that—

a

constitutes an offence, or

b

would constitute an offence but for being the act of—

i

a person under the age of ten, or

ii

a person entitled to rely on a defence of insanity.

Paragraph (b) does not apply to an act of D.

6

In this section—

  • “act” includes a course of conduct and also includes omission;

  • “child” means a person under the age of 16;

  • “serious” harm means harm that amounts to grievous bodily harm for the purposes of the Offences against the Person Act 1861 (c. 100);

  • “vulnerable adult” means a person aged 16 or over whose ability to protect himself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise.

7

A person guilty of an offence under this section is liable on conviction on indictment to imprisonment for a term not exceeding 14 years or to a fine, or to both.

6Evidence and procedure: England and Wales

1

Subsections (2) to (4) apply where a person (“the defendant”) is charged in the same proceedings with an offence of murder or manslaughter and with an offence under section 5 in respect of the same death (“the section 5 offence”).

2

Where by virtue of section 35(3) of the Criminal Justice and Public Order Act 1994 (c. 33) a court or jury is permitted, in relation to the section 5 offence, to draw such inferences as appear proper from the defendant’s failure to give evidence or refusal to answer a question, the court or jury may also draw such inferences in determining whether he is guilty—

a

of murder or manslaughter, or

b

of any other offence of which he could lawfully be convicted on the charge of murder or manslaughter,

even if there would otherwise be no case for him to answer in relation to that offence.

3

The charge of murder or manslaughter is not to be dismissed under paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998 (c. 37) (unless the section 5 offence is dismissed).

4

At the defendant’s trial the question whether there is a case for the defendant to answer on the charge of murder or manslaughter is not to be considered before the close of all the evidence (or, if at some earlier time he ceases to be charged with the section 5 offence, before that earlier time).

5

An offence under section 5 is an offence of homicide for the purposes of the following enactments—

  • sections 24 and 25 of the Magistrates' Courts Act 1980 (c. 43) (mode of trial of child or young person for indictable offence);

  • section 51A of the Crime and Disorder Act 1998 (sending cases to the Crown Court: children and young persons);

  • section 8 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (power and duty to remit young offenders to youth courts for sentence).

7Evidence and procedure: Northern Ireland

1

Subsections (2) to (4) apply where a person (“the defendant”) is charged in the same proceedings with an offence of murder or manslaughter and with an offence under section 5 in respect of the same death (“the section 5 offence”).

2

Where by virtue of Article 4(4) of the Criminal Evidence (Northern Ireland) Order 1988 (S.I. 1988/1987 (N.I. 20)) a court or jury is permitted, in relation to the section 5 offence, to draw such inferences as appear proper from the defendant’s failure to give evidence or refusal to answer a question, the court or jury may also draw such inferences in determining whether he is guilty—

a

of murder or manslaughter, or

b

of any other offence of which he could lawfully be convicted on the charge of murder or manslaughter,

even if there would otherwise be no case for him to answer in relation to that offence.

3

Where a magistrates' court is considering under Article 37 of the Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) whether to commit the defendant for trial for the offence of murder or manslaughter, if there is sufficient evidence to put him upon trial for the section 5 offence there is deemed to be sufficient evidence to put him upon trial for the offence of murder or manslaughter.

4

At the defendant’s trial the question whether there is a case to answer on the charge of murder or manslaughter is not to be considered before the close of all the evidence (or, if at some earlier time he ceases to be charged with the section 5 offence, before that earlier time).

5

An offence under section 5 is an offence of homicide for the purposes of the following provisions—

  • Article 17 of the Criminal Justice (Children) (Northern Ireland) Order 1998 (S.I. 1998/1504 (N.I. 9)) (mode of trial of child for indictable offence);

  • Article 32 of that Order (power and duty to remit children to youth courts for sentence).

8Evidence and procedure: courts-martial

1

Section 6(1), (2) and (4) has effect in relation to proceedings before courts-martial with the following adaptations.

C102

A reference to an offence of murder or manslaughter or an offence under section 5 is to be read as a reference to an offence under—

a

section 70 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18),

b

section 70 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19), or

c

section 42 of the Naval Discipline Act 1957 (c. 53),

for which the offence referred to in section 6 is the corresponding civil offence (within the meaning of that Act).

3

A reference to the court or jury is to be read as a reference to the court.

Domestic homicide reviews

9Establishment and conduct of reviews

1

In this section “domestic homicide review” means a review of the circumstances in which the death of a person aged 16 or over has, or appears to have, resulted from violence, abuse or neglect by—

a

a person to whom he was related or with whom he was or had been in an intimate personal relationship, or

b

a member of the same household as himself,

held with a view to identifying the lessons to be learnt from the death.

2

The Secretary of State may in a particular case direct a specified person or body within subsection (4) to establish, or to participate in, a domestic homicide review.

3

It is the duty of any person or body within subsection (4) establishing or participating in a domestic homicide review (whether or not held pursuant to a direction under subsection (2)) to have regard to any guidance issued by the Secretary of State as to the establishment and conduct of such reviews.

4

The persons and bodies within this subsection are—

a

in relation to England and Wales—

  • chief officers of police for police areas in England and Wales;

  • local authorities;

  • local probation boards established under section 4 of the Criminal Justice and Court Services Act 2000 (c. 43);

  • F1providers of probation services;

  • Strategic Health Authorities established under F2section 13 of the National Health Service Act 2006;

  • Primary Care Trusts established under F3section 18 of that Act.

  • Local Health Boards established under F4section 11 of the National Health Service (Wales) Act 2006;

  • NHS trusts established under F5section 25 of the National Health Service Act 2006 or section 18 of the National Health Service (Wales) Act 2006;

b

in relation to Northern Ireland—

  • the Chief Constable of the Police Service of Northern Ireland;

  • the Probation Board for Northern Ireland;

  • Health and Social Services Boards established under Article 16 of the Health and Personal Social Services (Northern Ireland) Order 1972 (S.I. 1972/1265 (N.I. 14));

  • Health and Social Services trusts established under Article 10 of the Health and Personal Social Services (Northern Ireland) Order 1991 (S.I. 1991/194 (N.I. 1)).

5

In subsection (4)(a) “local authority” means—

a

in relation to England, the council of a district, county or London borough, the Common Council of the City of London and the Council of the Isles of Scilly;

b

in relation to Wales, the council of a county or county borough.

6

The Secretary of State may by order amend subsection (4) or (5).

9Establishment and conduct of reviews

1

In this section “domestic homicide review” means a review of the circumstances in which the death of a person aged 16 or over has, or appears to have, resulted from violence, abuse or neglect by—

a

a person to whom he was related or with whom he was or had been in an intimate personal relationship, or

b

a member of the same household as himself,

held with a view to identifying the lessons to be learnt from the death.

2

The Secretary of State may in a particular case direct a specified person or body within subsection (4) to establish, or to participate in, a domestic homicide review.

3

It is the duty of any person or body within subsection (4) establishing or participating in a domestic homicide review (whether or not held pursuant to a direction under subsection (2)) to have regard to any guidance issued by the Secretary of State as to the establishment and conduct of such reviews.

4

The persons and bodies within this subsection are—

a

in relation to England and Wales—

  • chief officers of police for police areas in England and Wales;

  • local authorities;

  • local probation boards established under section 4 of the Criminal Justice and Court Services Act 2000 (c. 43);

  • Strategic Health Authorities established under F2section 13 of the National Health Service Act 2006;

  • Primary Care Trusts established under F3section 18 of that Act.

  • Local Health Boards established under F4section 11 of the National Health Service (Wales) Act 2006;

  • NHS trusts established under F5section 25 of the National Health Service Act 2006 or section 18 of the National Health Service (Wales) Act 2006;

b

in relation to Northern Ireland—

  • the Chief Constable of the Police Service of Northern Ireland;

  • the Probation Board for Northern Ireland;

  • Health and Social Services Boards established under Article 16 of the Health and Personal Social Services (Northern Ireland) Order 1972 (S.I. 1972/1265 (N.I. 14));

  • Health and Social Services trusts established under Article 10 of the Health and Personal Social Services (Northern Ireland) Order 1991 (S.I. 1991/194 (N.I. 1)).

5

In subsection (4)(a) “local authority” means—

a

in relation to England, the council of a district, county or London borough, the Common Council of the City of London and the Council of the Isles of Scilly;

b

in relation to Wales, the council of a county or county borough.

6

The Secretary of State may by order amend subsection (4) or (5).

Part 2Criminal Justice

Assault, harassment etc

10Common assault to be an arrestable offence

1

F6. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

F7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11Common assault etc as alternative verdict

In section 6 of the Criminal Law Act 1967 (c. 58) (trial of offences), after subsection (3) (alternative verdicts on trial on indictment) insert—

3A

For the purposes of subsection (3) above an offence falls within the jurisdiction of the court of trial if it is an offence to which section 40 of the Criminal Justice Act 1988 applies (power to join in indictment count for common assault etc.), even if a count charging the offence is not included in the indictment.

3B

A person convicted of an offence by virtue of subsection (3A) may only be dealt with for it in a manner in which a magistrates' court could have dealt with him.

12Restraining orders: England and Wales

1

In section 5 of the Protection from Harassment Act 1997 (c. 40) (power to make restraining order where defendant convicted of offence under section 2 or 4 of that Act), in subsection (1) omit “under section 2 or 4”.

2

After subsection (3) of that section insert—

3A

In proceedings under this section both the prosecution and the defence may lead, as further evidence, any evidence that would be admissible in proceedings for an injunction under section 3.

3

After subsection (4) of that section insert—

4A

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

4

After subsection (6) of that section insert—

7

A court dealing with a person for an offence under this section may vary or discharge the order in question by a further order.

5

After that section insert—

5ARestraining orders on acquittal

1

A court before which a person (“the defendant”) is acquitted of an offence may, if it considers it necessary to do so to protect a person from harassment by the defendant, make an order prohibiting the defendant from doing anything described in the order.

2

Subsections (3) to (7) of section 5 apply to an order under this section as they apply to an order under that one.

3

Where the Court of Appeal allow an appeal against conviction they may remit the case to the Crown Court to consider whether to proceed under this section.

4

Where—

a

the Crown Court allows an appeal against conviction, or

b

a case is remitted to the Crown Court under subsection (3),

the reference in subsection (1) to a court before which a person is acquitted of an offence is to be read as referring to that court.

5

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.

13Restraining orders: Northern Ireland

1

In Article 7 of the Protection from Harassment (Northern Ireland) Order 1997 (S.I. 1997/1180 (N.I. 9)) (power to make restraining order where defendant convicted of offence under Article 4 or 6 of that Order), in paragraph (1) omit “under Article 4 or 6”.

2

After paragraph (3) of that Article insert—

3A

In proceedings under this Article both the prosecution and the defence may lead, as further evidence, any evidence that would be admissible in proceedings for an injunction under Article 5.

3

After paragraph (4) of that Article insert—

4A

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

4

After paragraph (6) of that Article insert—

7

A court dealing with a person for an offence under this Article may vary or discharge the order in question by a further order.

5

After that Article insert—

Restraining orders on acquittal7A

1

A court before which a person (“the defendant”) is acquitted of an offence may, if it considers it necessary to do so to protect a person from harassment by the defendant, make an order prohibiting the defendant from doing anything described in the order.

2

Paragraphs (3) to (7) of Article 7 apply to an order under this Article as they apply to an order under that one.

3

Where the Court of Appeal allow an appeal against conviction they may remit the case to the Crown Court to consider whether to proceed under this Article.

4

Where—

a

a county court allows an appeal against conviction, or

b

a case is remitted to the Crown Court under paragraph (3),

the reference in paragraph (1) to a court before which a person is acquitted of an offence is to be read as referring to that court.

5

A person made subject to an order under this Article 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 Article 7.

Surcharges

14Surcharge payable on conviction

1

In Chapter 1 of Part 12 of the Criminal Justice Act 2003 (c. 44) (general provisions about sentencing), after section 161 insert—

Surcharges

161ACourt’s duty to order payment of surcharge

1

A court when dealing with a person for one or more offences must also (subject to subsections (2) and (3)) order him to pay a surcharge.

2

Subsection (1) does not apply in such cases as may be prescribed by an order made by the Secretary of State.

3

Where a court dealing with an offender considers—

a

that it would be appropriate to make a compensation order, but

b

that he has insufficient means to pay both the surcharge and appropriate compensation,

the court must reduce the surcharge accordingly (if necessary to nil).

4

For the purposes of this section a court does not “deal with” a person if it—

a

discharges him absolutely, or

b

makes an order under the Mental Health Act 1983 in respect of him.

161BAmount of surcharge

1

The surcharge payable under section 161A is such amount as the Secretary of State may specify by order.

2

An order under this section may provide for the amount to depend on—

a

the offence or offences committed,

b

how the offender is otherwise dealt with (including, where the offender is fined, the amount of the fine),

c

the age of the offender.

This is not to be read as limiting section 330(3) (power to make different provision for different purposes etc).

2

In section 164 of that Act (fixing of fines), after subsection (4) insert—

4A

In applying subsection (3), a court must not reduce the amount of a fine on account of any surcharge it orders the offender to pay under section 161A, except to the extent that he has insufficient means to pay both.

3

In Part 1 of Schedule 9 to the Administration of Justice Act 1970 (c. 31) (cases where payment enforceable as on summary conviction), after paragraph 12 insert—

13

Where under section 161A of the Criminal Justice Act 2003 a court orders the payment of a surcharge.

4

F8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

The Secretary of State may by order—

a

make provision amending Schedule 5 (collection of fines) or Schedule 6 (discharge of fines by unpaid work) to the Courts Act 2003 in its application by virtue of subsection (3) or (4) to surcharges;

b

make provision for any part of Schedule 5, or the whole or any part of Schedule 6, not to apply to surcharges;

c

make amendments to any enactment that are consequential on provision made under paragraph (a) or (b).

15Increase in maximum on-the-spot penalty for disorderly behaviour

1

In Chapter 1 of Part 1 of the Criminal Justice and Police Act 2001 (c. 16) (on-the-spot penalties for disorderly behaviour), section 3 is amended as follows.

2

In subsection (2) (maximum penalty that may be prescribed), at the end insert “ plus a half of the relevant surcharge ”.

3

After that subsection insert—

2A

The “relevant surcharge”, in relation to a person of a given age, is the amount payable by way of surcharge under section 161A of the Criminal Justice Act 2003 by a person of that age who is fined the maximum amount for the offence.

16Higher fixed penalty for repeated road traffic offences

1

The Road Traffic Offenders Act 1988 (c. 53) is amended as follows.

2

F63. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

3

At the end of section 84 (regulations) (which becomes subsection (1)) insert—

2

The Secretary of State may by regulations provide that where—

a

a conditional offer has been issued under section 75 of this Act,

b

the amount of the penalty stated in the offer is not the higher amount applicable by virtue of section 53(3) of this Act, and

c

it subsequently appears that that higher amount is in fact applicable,

the fixed penalty clerk may issue a further notice (a “surcharge notice”) requiring payment of the difference between the two amounts.

3

Regulations under subsection (2) above may—

a

provide for this Part of this Act to have effect, in cases to which the regulations apply, with such modifications as may be specified;

b

make provision for the collection and enforcement of amounts due under surcharge notices.

Trial by jury of sample counts only

I117Application by prosecution for certain counts to be tried without a jury

1

The prosecution may apply to a judge of the Crown Court 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.

2

If such an application is made and the judge is satisfied that the following three conditions are fulfilled, he may 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.

3

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.

4

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.

5

The third condition is that it is in the interests of justice for an order under subsection (2) to be made.

6

In deciding whether or not to make an order under subsection (2), the judge must have regard to any steps which might reasonably be taken to facilitate a trial by jury.

7

But a step is not to be regarded as reasonable if it could lead to the possibility of a defendant in the trial receiving a lesser sentence than would be the case if that step were not taken.

8

An order under subsection (2) must specify the counts which may be tried without a jury.

9

For the purposes of this section and sections 18 to 20, a count may not be regarded as a sample of other counts unless the defendant in respect of each count is the same person.

I218Procedure for applications under section 17

1

An application under section 17 must be determined at a preparatory hearing.

2

Section 7(1) of the 1987 Act and section 29(2) of the 1996 Act are to have effect as if the purposes there mentioned included the purpose of determining an application under section 17.

3

Section 29(1) of the 1996 Act is to have effect as if the grounds on which a judge of the Crown Court may make an order under that provision included the ground that an application under section 17 has been made.

4

The parties to a preparatory hearing at which an application under section 17 is to be determined must be given an opportunity to make representations with respect to the application.

5

Section 9(11) of the 1987 Act and section 35(1) of the 1996 Act are to have effect as if they also provided for an appeal to the Court of Appeal to lie from the determination by a judge of an application under section 17.

6

In this section—

  • “preparatory hearing” means a preparatory hearing within the meaning of the 1987 Act or Part 3 of the 1996 Act;

  • “the 1987 Act” means the Criminal Justice Act 1987 (c. 38);

  • “the 1996 Act” means the Criminal Procedure and Investigations Act 1996 (c. 25).

I319Effect of order under section 17(2)

1

The effect of an order under section 17(2) is that where, in the course of the proceedings to which the order relates, a defendant is found guilty by a jury on a count which can be regarded as a sample of other counts to be tried in those proceedings, those other counts may be tried without a jury in those proceedings.

2

Where the trial of a count is conducted without a jury because of an order under section 17(2), the court is to have all the powers, authorities and jurisdiction which the court would have had if the trial of that count had been conducted with a jury (including power to determine any question and to make any finding which would be required to be determined or made by a jury).

3

Except where the context otherwise requires, any reference in an enactment to a jury, the verdict of a jury or the finding of a jury is to be read, in relation to the trial of a count conducted without a jury because of an order under section 17(2), as a reference to the court, the verdict of the court or the finding of the court.

4

Where the trial of a count is conducted without a jury because of an order under section 17(2) and the court convicts the defendant of that count—

a

the court must give a judgment which states the reasons for the conviction at, or as soon as reasonably practicable after, the time of the conviction, and

b

the reference in section 18(2) of the Criminal Appeal Act 1968 (c. 19) (notice of appeal or of application for leave to appeal to be given within 28 days from date of conviction etc) to the date of the conviction is to be read as a reference to the date of the judgment mentioned in paragraph (a).

5

Where, in the case of proceedings in respect of which an order under section 17(2) has been made, a jury convicts a defendant of a count, time does not begin to run under section 18(2) of the Criminal Appeal Act 1968 in relation to an appeal against that conviction until the date on which the proceedings end.

6

In determining for the purposes of subsection (5) the date on which proceedings end, any part of those proceedings which takes place after the time when matters relating to sentencing begin to be dealt with is to be disregarded.

7

Nothing in this section or section 17, 18 or 20 affects the requirement under section 4A of the Criminal Procedure (Insanity) Act 1964 (c. 84) that any question, finding or verdict mentioned in that section be determined, made or returned by a jury.

I420Rules of court

1

Rules of court may make such provision as appears to the authority making them to be necessary or expedient for the purposes of sections 17 to 19.

2

Without limiting subsection (1), rules of court may in particular make provision for time limits within which applications under section 17 must be made or within which other things in connection with that section or section 18 or 19 must be done.

3

Nothing in this section is to be taken as affecting the generality of any enactment conferring powers to make rules of court.

21Application of sections 17 to 20 to Northern Ireland

1

In their application to Northern Ireland, sections 17 to 20 have effect subject to the modifications in Schedule 1.

2

Sections 17 to 20 do not apply in relation to a trial to which section 75 of the Terrorism Act 2000 (c. 11) (trial without jury for certain offences) applies.

Unfitness to plead and insanity

22Procedure for determining fitness to plead: England and Wales

1

The Criminal Procedure (Insanity) Act 1964 is amended as follows.

2

In section 4 (finding of unfitness to plead), in subsection (5) (question of fitness to be determined by a jury), for the words from “by a jury” to the end substitute “ by the court without a jury ”.

3

In subsection (6) of that section, for “A jury” substitute “ The court ”.

4

In subsection (1) of section 4A (finding that the accused did the act or omission charged against him), for “jury” substitute “ court ”.

5

For subsection (5) of that section substitute—

5

Where the question of disability was determined after arraignment of the accused, the determination under subsection (2) is to be made by the jury by whom he was being tried.

23Procedure for determining fitness to be tried: Northern Ireland

1

The Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)) is amended as follows.

2

In Article 49 (finding of unfitness to be tried), in paragraph (4) (question of fitness to be determined by a jury), for the words from “by a jury” to the end substitute “ by the court without a jury ”.

3

In paragraph (4A) of that Article, for “A jury” substitute “ The court ”.

4

In paragraph (1) of Article 49A (finding that the accused did the act or omission charged against him), for “jury” substitute “ court ”.

5

For paragraph (5) of that Article substitute—

5

Where the question of fitness to be tried was determined after arraignment of the accused, the determination under paragraph (2) is to be made by the jury by whom he was being tried.

24Powers of court on finding of insanity or unfitness to plead etc

1

For section 5 of the Criminal Procedure (Insanity) Act 1964 (c. 84) substitute—

5Powers to deal with persons not guilty by reason of insanity or unfit to plead etc.

1

This section applies where—

a

a special verdict is returned that the accused is not guilty by reason of insanity; or

b

findings have been made that the accused is under a disability and that he did the act or made the omission charged against him.

2

The court shall make in respect of the accused—

a

a hospital order (with or without a restriction order);

b

a supervision order; or

c

an order for his absolute discharge.

3

Where—

a

the offence to which the special verdict or the findings relate is an offence the sentence for which is fixed by law, and

b

the court have power to make a hospital order,

the court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).

4

In this section—

  • “hospital order” has the meaning given in section 37 of the Mental Health Act 1983;

  • “restriction order” has the meaning given to it by section 41 of that Act;

  • “supervision order” has the meaning given in Part 1 of Schedule 1A to this Act.

5AOrders made under or by virtue of section 5

1

In relation to the making of an order by virtue of subsection (2)(a) of section 5 above, section 37 (hospital orders etc) of the Mental Health Act 1983 (“the 1983 Act”) shall have effect as if—

a

the reference in subsection (1) to a person being convicted before the Crown Court included a reference to the case where section 5 above applies;

b

the words after “punishable with imprisonment” and before “or is convicted” were omitted; and

c

for subsections (4) and (5) there were substituted—

4

Where an order is made under this section requiring a person to be admitted to a hospital (“a hospital order”), it shall be the duty of the managers of the hospital specified in the order to admit him in accordance with it.

2

In relation to a case where section 5 above applies but the court have not yet made one of the disposals mentioned in subsection (2) of that section—

a

section 35 of the 1983 Act (remand to hospital for report on accused’s mental condition) shall have effect with the omission of the words after paragraph (b) in subsection (3);

b

section 36 of that Act (remand of accused person to hospital for treatment) shall have effect with the omission of the words “(other than an offence the sentence for which is fixed by law)” in subsection (2);

c

references in sections 35 and 36 of that Act to an accused person shall be construed as including a person in whose case this subsection applies; and

d

section 38 of that Act (interim hospital orders) shall have effect as if—

i

the reference in subsection (1) to a person being convicted before the Crown Court included a reference to the case where section 5 above applies; and

ii

the words “(other than an offence the sentence for which is fixed by law)” in that subsection were omitted.

3

In relation to the making of any order under the 1983 Act by virtue of this Act, references in the 1983 Act to an offender shall be construed as including references to a person in whose case section 5 above applies, and references to an offence shall be construed accordingly.

4

Where—

a

a person is detained in pursuance of a hospital order which the court had power to make by virtue of section 5(1)(b) above, and

b

the court also made a restriction order, and that order has not ceased to have effect,

the Secretary of State, if satisfied after consultation with the responsible medical officer that the person can properly be tried, may remit the person for trial, either to the court of trial or to a prison.

On the person’s arrival at the court or prison, the hospital order and the restriction order shall cease to have effect.

5

Schedule 1A to this Act (supervision orders) has effect with respect to the making of supervision orders under subsection (2)(b) of section 5 above, and with respect to the revocation and amendment of such orders.

6

In relation to the making of an order under subsection (2)(c) of section 5 above, section 12(1) of the Powers of Criminal Courts (Sentencing) Act 2000 (absolute and conditional discharge) shall have effect as if—

a

the reference to a person being convicted by or before a court of such an offence as is there mentioned included a reference to the case where section 5 above applies; and

b

the reference to the court being of opinion that it is inexpedient to inflict punishment included a reference to it thinking that an order for absolute discharge would be most suitable in all the circumstances of the case.

2

Before Schedule 2 to the Criminal Procedure (Insanity) Act 1964 (c. 84) insert the Schedule set out in Schedule 2 to this Act.

3

In section 6 of the Criminal Appeal Act 1968 (c. 19) (substitution of finding of insanity or findings of unfitness to plead etc) and in section 14 of that Act (substitution of findings of unfitness to plead etc), for subsections (2) and (3) substitute—

2

The Court of Appeal shall make in respect of the accused—

a

a hospital order (with or without a restriction order);

b

a supervision order; or

c

an order for his absolute discharge.

3

Where—

a

the offence to which the appeal relates is an offence the sentence for which is fixed by law, and

b

the court have power to make a hospital order,

the court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).

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.

7

In this section—

“hospital order” has the meaning given in section 37 of the Mental Health Act 1983;

“interim hospital order” has the meaning given in section 38 of that Act;

“restriction order” has the meaning given to it by section 41 of that Act;

“supervision order” has the meaning given in Part 1 of Schedule 1A to the 1964 Act.

4

Section 14A of the Criminal Appeal Act 1968 (c. 19) (power to order admission to hospital where, on appeal against verdict of not guilty by reason of insanity, Court of Appeal substitutes verdict of acquittal) is repealed.

5

Section 5 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (c. 25) and Schedules 1 and 2 to that Act are repealed.

25Appeal against order made on finding of insanity or unfitness to plead etc

After section 16 of the Criminal Appeal Act 1968 insert—

Appeal against order made in cases of insanity or unfitness to plead

16ARight of appeal against hospital order etc.

1

A person in whose case the Crown Court—

a

makes a hospital order or interim hospital order by virtue of section 5 or 5A of the Criminal Procedure (Insanity) Act 1964, or

b

makes a supervision order under section 5 of that Act,

may appeal to the Court of Appeal against the order.

2

An appeal under this section lies only—

a

with the leave of the Court of Appeal; or

b

if the judge of the court of trial grants a certificate that the case is fit for appeal.

16BDisposal of appeal under s. 16A

1

If on an appeal under section 16A of this Act the Court of Appeal consider that the appellant should be dealt with differently from the way in which the court below dealt with him—

a

they may quash any order which is the subject of the appeal; and

b

they may make such order, whether by substitution for the original order or by variation of or addition to it, as they think appropriate for the case and as the court below had power to make.

2

The fact that an appeal is pending against an interim hospital order under the Mental Health Act 1983 shall not affect the power of the court below to renew or terminate the order or deal with the appellant on its termination.

3

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 said Act of 1983 (absconding offenders) as the court that made the order.

4

The fact that an appeal is pending against a supervision order under section 5 of the Criminal Procedure (Insanity) Act 1964 shall not affect the power of the court below to revoke the order, or of a magistrates' court to revoke or amend it.

5

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

26Courts-martial etc

Schedule 3 (unfitness to stand trial and insanity: courts-martial etc) has effect.

Miscellaneous

27Powers of authorised officers executing warrants

1

After section 125B of the Magistrates' Courts Act 1980 (c. 43) insert—

125BAPowers of persons authorised under section 125A or 125B

Schedule 4A to this Act, which confers powers on persons authorised under section 125A or 125B for the purpose of executing warrants for the enforcement of fines and other orders, shall have effect.

2

After Schedule 4 to that Act insert the Schedule set out in Schedule 4 to this Act.

28Disclosure orders for purpose of executing warrants

After section 125C of the Magistrates' Courts Act 1980 insert—

125CAPower to make disclosure order

1

A magistrates' court may make a disclosure order if satisfied that it is necessary to do so for the purpose of executing a warrant to which this section applies.

2

This section applies to a warrant of arrest, commitment, detention or distress issued by a justice of the peace in connection with the enforcement of a fine or other order imposed or made on conviction.

3

A disclosure order is an order requiring the person to whom it is directed to supply the designated officer for the court with any of the following information about the person to whom the warrant relates—

a

his name, date of birth or national insurance number;

b

his address (or any of his addresses).

4

A disclosure order may be made only on the application of a person entitled to execute the warrant.

5

This section applies to the Crown as it applies to other persons.

125CBUse of information supplied under disclosure order

1

Information supplied to a person under a disclosure order, or under this subsection, may be supplied by him to—

a

the applicant for the order or any other person entitled to execute the warrant concerned;

b

any employee of a body or person who, for the purposes of section 125B above, is an approved enforcement agency in relation to the warrant;

c

any justices' clerk or other person appointed under section 2(1) of the Courts Act 2003.

2

A person who intentionally or recklessly—

a

discloses information supplied under a disclosure order otherwise than as permitted by subsection (1) above, or

b

uses information so supplied otherwise than for the purpose of facilitating the execution of the warrant concerned,

commits an offence.

3

But it is not an offence under subsection (2) above—

a

to disclose any information in accordance with any enactment or order of a court or for the purposes of any proceedings before a court; or

b

to disclose any information which has previously been lawfully disclosed to the public.

4

A person guilty of an offence under subsection (2) above is liable—

a

on summary conviction, to a fine not exceeding the statutory maximum;

b

on conviction on indictment, to a fine.

5

In this section “disclosure order” has the meaning given by section 125CA(3) above.

29Procedure on breach of community penalty etc

Schedule 5 (procedure on breach of community penalty etc) has effect.

30Prosecution appeals

1

In section 58(13) of the Criminal Justice Act 2003 (c. 44) (which defines “applicable time”), for “start of the judge's” substitute “ time when the judge starts his ”.

2

After section 58(13) of that Act insert—

14

The reference in subsection (13) to the time when the judge starts his summing-up to the jury includes the time when the judge would start his summing-up to the jury but for the making of an order under Part 7.

31Intermittent custody

Schedule 6 (intermittent custody) has effect.

Part 3Victims etc

Chapter 1The victims' code

C132Code of practice for victims

1

The Secretary of State must issue a code of practice as to the services to be provided to a victim of criminal conduct by persons appearing to him to have functions relating to—

a

victims of criminal conduct, or

b

any aspect of the criminal justice system.

2

The code may restrict the application of its provisions to—

a

specified descriptions of victims;

b

victims of specified offences or descriptions of conduct;

c

specified persons or descriptions of persons appearing to the Secretary of State to have functions of the kind mentioned in subsection (1).

3

The code may include provision requiring or permitting the services which are to be provided to a victim to be provided to one or more others—

a

instead of the victim (for example where the victim has died);

b

as well as the victim.

4

The code may make different provision for different purposes, including different provision for—

a

different descriptions of victims;

b

persons who have different functions or descriptions of functions;

c

different areas.

5

The code may not require anything to be done by—

a

a person acting in a judicial capacity;

b

a person acting in the discharge of a function of a member of the Crown Prosecution Service which involves the exercise of a discretion.

6

In determining whether a person is a victim of criminal conduct for the purposes of this section, it is immaterial that no person has been charged with or convicted of an offence in respect of the conduct.

7

In this section—

  • “criminal conduct” means conduct constituting an offence;

  • “specified” means specified in the code.

C233Procedure

1

Subsections (2) to (7) apply in relation to a code of practice required to be issued under section 32.

2

The Secretary of State must prepare a draft of the code.

3

In preparing the draft the Secretary of State must consult the Attorney General and the Lord Chancellor.

4

After preparing the draft the Secretary of State must—

a

publish the draft;

b

specify a period during which representations about the draft may be made to him.

5

The Secretary of State must—

a

consider in consultation with the Attorney General and the Lord Chancellor any representations made to him before the end of the specified period about the draft;

b

if he thinks it appropriate, modify the draft in the light of any such representations.

6

After the Secretary of State has proceeded under subsection (5) he must lay the code before Parliament.

7

When he has laid the code before Parliament the Secretary of State must bring it into operation on such day as he appoints by order.

8

The Secretary of State may from time to time revise a code previously brought into operation under this section; and subsections (2) to (7) apply to a revised code as they apply to the code as first prepared.

9

But the Secretary of State may revise a code under subsection (8) only if it appears to him that the proposed revisions would not result in—

a

a significant reduction in the quality or extent of the services to be provided under the code, or

b

a significant restriction in the description of persons to whom services are to be provided under the code.

34Effect of non-compliance

1

If a person fails to perform a duty imposed on him by a code issued under section 32, the failure does not of itself make him liable to criminal or civil proceedings.

2

But 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.

Chapter 2Representations and information

Imprisonment or detention

35Victims' rights to make representations and receive information

1

This section applies if—

a

a court convicts a person (“the offender”) of a sexual or violent offence, and

b

a relevant sentence is imposed on him in respect of the offence.

2

But section 39 applies (instead of this section) if a hospital direction and a limitation direction are given in relation to the offender.

3

The local probation board for the area in which the sentence is imposed must take all reasonable steps to ascertain whether a person who appears to the board to be the victim of the offence or to act for the victim of the offence wishes—

a

to make representations about the matters specified in subsection (4);

b

to receive the information specified in subsection (5).

4

The matters are—

a

whether the offender should be subject to any licence conditions or supervision requirements in the event of his release;

b

if so, what licence conditions or supervision requirements.

5

The information is information about any licence conditions or supervision requirements to which the offender is to be subject in the event of his release.

6

If a person whose wishes have been ascertained under subsection (3) makes representations to the local probation board mentioned in that subsection or the relevant local probation board about a matter specified in subsection (4), the relevant local probation board must forward those representations to the persons responsible for determining the matter.

7

If a local probation board has ascertained under subsection (3) that a person wishes to receive the information specified in subsection (5), the relevant local probation board must take all reasonable steps—

a

to inform the person whether or not the offender is to be subject to any licence conditions or supervision requirements in the event of his release,

b

if he is, to provide the person with details of any licence conditions or supervision requirements which relate to contact with the victim or his family, and

c

to provide the person with such other information as the relevant local probation board considers appropriate in all the circumstances of the case.

8

The relevant local probation board is—

a

in a case where the offender is to be supervised on release by an officer of a local probation board, that local probation board;

b

in any other case, the local probation board for the area in which the prison or other place in which the offender is detained is situated.

Hospital orders

36Victims' rights: preliminary

1

This section applies if the conditions in subsections (2) and (3) are met.

2

The first condition is that one of these applies in respect of a person (“the patient”) charged with a sexual or violent offence—

a

the patient is convicted of the offence;

b

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

c

a finding is made—

i

under section 4 of the Criminal Procedure (Insanity) Act 1964 (c. 84) that the patient is under a disability, and

ii

under section 4A of that Act that he did the act or made the omission charged against him as the offence.

3

The second condition is that a hospital order with a restriction order is made in respect of the patient by a court dealing with him for the offence.

4

The local probation board for the area in which the determination mentioned in subsection (2)(a), (b) or (c) is made must take all reasonable steps to ascertain whether a person who appears to the board to be the victim of the offence or to act for the victim of the offence wishes—

a

to make representations about the matters specified in subsection (5);

b

to receive the information specified in subsection (6).

5

The matters are—

a

whether the patient should be subject to any conditions in the event of his discharge from hospital;

b

if so, what conditions.

6

The information is information about any conditions to which the patient is to be subject in the event of his discharge from hospital.

36AF11Supplemental provision for case where no restriction order made

1

This section applies if, in a case where section 36 applies, the hospital order in respect of the patient was made without a restriction order.

2

Subsection (3) applies if a person who appears to the local probation board or provider of probation services mentioned in section 36(4) to be the victim of the offence or to act for the victim of the offence, when his wishes are ascertained under section 36(4), expresses a wish—

a

to make representations about a matter specified in section 36(5), or

b

to receive the information specified in section 36(6).

3

The local probation board or the provider of probation services must—

a

notify the managers of the hospital in which the patient is detained of that person's wish and of that person's name and address, and

b

notify that person of the name and address of the hospital.

4

Subsection (5) applies if a person who appears to the local probation board or provider of probation services mentioned in section 36(4) to be the victim of the offence or to act for the victim of the offence, subsequently to his wishes being ascertained under section 36(4), expresses a wish to do something specified in subsection (2)(a) or (b).

5

The local probation board or provider of probation services mentioned in section 36(4) must take all reasonable steps—

a

to ascertain whether the hospital order made in respect of the patient continues in force and whether a community treatment order is in force in respect of him, and

b

if the board or provider ascertains that the hospital order does continue in force—

i

to notify the managers of the relevant hospital of that person's wish, and

ii

to notify that person of the name and address of the hospital.

6

The relevant hospital is—

a

the hospital in which the patient is detained, or

b

if a community treatment order is in force in respect of the patient, the responsible hospital.

37Representations

1

This section applies if section 36 applies.

2

If—

a

a person makes representations about a matter specified in section 36(5) to the local probation board mentioned in section 36(4) or the relevant local probation board, and

b

it appears to the relevant local probation board that the person is the victim of the offence or acts for the victim of the offence,

the relevant local probation board must forward the representations to the persons responsible for determining the matter.

3

The duty in subsection (2) applies only while the restriction order made in respect of the patient is in force.

4

The Secretary of State must inform the relevant local probation board if he is considering—

a

whether to give a direction in respect of the patient under section 42(1) of the Mental Health Act 1983 (c. 20) (directions lifting restrictions),

b

whether to discharge the patient under section 42(2) of that Act, either absolutely or subject to conditions, or

c

if the patient has been discharged subject to conditions, whether to vary the conditions.

5

A Mental Health Review Tribunal must inform the relevant local probation board if—

a

an application is made to the tribunal by the patient under section 69, 70 or 75 of the Mental Health Act 1983 (applications concerning restricted patients), or

b

the Secretary of State refers the patient’s case to the tribunal under section 71 of that Act (references concerning restricted patients).

6

Subsection (7) applies if—

a

the relevant local probation board receives information under subsection (4) or (5), and

b

a person who appears to the relevant local probation board to be the victim of the offence or to act for the victim of the offence—

i

when his wishes were ascertained under section 36(4), expressed a wish to make representations about a matter specified in section 36(5), or

ii

has made representations about such a matter to the relevant local probation board or the local probation board mentioned in section 36(4).

7

The relevant local probation board must provide the information to the person.

8

The relevant local probation board is—

a

if the patient is to be discharged subject to a condition that he reside in a particular area, the local probation board for the area;

b

in any other case, the local probation board for the area in which the hospital in which the patient is detained is situated.

37AF12Representations where restriction order not made

1

This section applies if, in a case where section 36 applies, the hospital order in respect of the patient was made without a restriction order.

2

Subsection (3) applies if—

a

a person makes representations about a matter specified in section 36(5) to the managers of the relevant hospital, and

b

it appears to the managers that the person is the victim of the offence or acts for the victim of the offence.

3

The managers must forward the representations to the persons responsible for determining the matter.

4

The responsible clinician must inform the managers of the relevant hospital if he is considering making—

a

an order for discharge in respect of the patient under section 23(2) of the Mental Health Act 1983,

b

a community treatment order in respect of the patient, or

c

an order under section 17B(4) of the Mental Health Act 1983 to vary the conditions specified in a community treatment order in force in respect of the patient.

5

Any person who has the power to make an order for discharge in respect of the patient under section 23(3) of the Mental Health Act 1983 must inform the managers of the relevant hospital if he is considering making that order.

6

F9The First-tier Tribunal or the Mental Health Review Tribunal for Wales must inform the managers of the relevant hospital if—

a

an application is made to the tribunal under section 66 or 69 of the Mental Health Act 1983, or

b

the patient's case is referred to the tribunal under section 67 of that Act.

7

Subsection (8) applies if—

a

the managers of the relevant hospital receive information under subsection (4), (5) or (6), and

b

a person who appears to the managers to be the victim of the offence or to act for the victim of the offence—

i

when his wishes were ascertained under section 36(4), expressed a wish to make representations about a matter specified in section 36(5), or

ii

has made representations about such a matter to the managers of the hospital in which the patient was, at the time in question, detained.

8

The managers of the relevant hospital must provide the information to the person.

9

The relevant hospital has the meaning given in section 36A(6).

38Information

1

This section applies if section 36 applies.

2

Subsection (3) applies if a person who appears to the relevant local probation board to be the victim of the offence or to act for the victim of the offence—

a

when his wishes were ascertained under section 36(4), expressed a wish to receive the information specified in section 36(6), or

b

has subsequently informed the relevant local probation board that he wishes to receive that information.

3

The relevant local probation board must take all reasonable steps—

a

to inform that person whether or not the patient is to be subject to any conditions in the event of his discharge;

b

if he is, to provide that person with details of any conditions which relate to contact with the victim or his family;

c

if the restriction order in respect of the patient is to cease to have effect, to notify that person of the date on which it is to cease to have effect;

d

to provide that person with such other information as the board considers appropriate in all the circumstances of the case.

4

The Secretary of State must inform the relevant local probation board—

a

whether the patient is to be discharged;

b

if he is, whether he is to be discharged absolutely or subject to conditions;

c

if he is to be discharged subject to conditions, what the conditions are to be;

d

if he has been discharged subject to conditions—

i

of any variation of the conditions by the Secretary of State;

ii

of any recall to hospital under section 42(3) of the Mental Health Act 1983 (c. 20);

e

if the restriction order is to cease to have effect by virtue of action to be taken by the Secretary of State, of the date on which the restriction order is to cease to have effect.

5

Subsections (6) and (7) apply (instead of subsection (4)) if—

a

an application is made to a Mental Health Review Tribunal by the patient under section 69, 70 or 75 of the Mental Health Act 1983 (c. 20) (applications concerning restricted patients), or

b

the Secretary of State refers the patient’s case to a Mental Health Review Tribunal under section 71 of that Act (references concerning restricted patients).

6

The tribunal must inform the relevant local probation board—

a

of the matters specified in subsection (4)(a) to (c);

b

if the patient has been discharged subject to conditions, of any variation of the conditions by the tribunal;

c

if the restriction order is to cease to have effect by virtue of action to be taken by the tribunal, of the date on which the restriction order is to cease to have effect.

7

The Secretary of State must inform the relevant local probation board of the matters specified in subsection (4)(d) and (e).

8

The duties in subsections (3) to (7) apply only while the restriction order is in force.

9

The relevant local probation board has the meaning given in section 37(8).

38AF13Information where restriction order not made

1

This section applies if, in a case where section 36 applies, the hospital order in respect of the patient was made without a restriction order.

2

The responsible clinician must inform the managers of the relevant hospital—

a

whether he is to make an order for discharge in respect of the patient under section 23(2) of the Mental Health Act 1983;

b

whether he is to make a community treatment order in respect of the patient;

c

if a community treatment order is to be made in respect of the patient, what conditions are to be specified in the order;

d

if a community treatment order is in force in respect of the patient, of any variation to be made under section 17B(4) of the Mental Health Act 1983 of the conditions specified in the order;

e

if a community treatment order in respect of the patient is to cease to be in force, of the date on which it is to cease to be in force;

f

if, following the examination of the patient under section 20 of the Mental Health Act 1983, it does not appear to the responsible clinician that the conditions set out in subsection (4) of that section are satisfied, of the date on which the authority for the patient's detention is to expire.

3

Any person who has the power to make an order for discharge in respect of the patient under section 23(3) of the Mental Health Act 1983 must inform the managers of the relevant hospital if he is to make that order.

4

Subsection (5) applies if—

a

an application is made to F10the First-tier Tribunal or the Mental Health Review Tribunal for Wales under section 66 or 69 of the Mental Health Act 1983,

b

the patient's case is referred to F10the First-tier Tribunal or the Mental Health Review Tribunal for Wales under section 67 of that Act, or

c

the managers of the relevant hospital refer the patient's case to F10the First-tier Tribunal or the Mental Health Review Tribunal for Wales under section 68 of that Act.

5

The tribunal must inform the managers of the relevant hospital if it directs that the patient is to be discharged.

6

Subsection (7) applies if a person who appears to the managers of the relevant hospital to be the victim of the offence or to act for the victim of the offence—

a

when his wishes were ascertained under section 36(4), expressed a wish to receive the information specified in section 36(6), or

b

has subsequently informed the managers of the relevant hospital that he wishes to receive that information.

7

The managers of the relevant hospital order must take all reasonable steps—

a

to inform that person whether the patient is to be discharged under section 23 or 72 of the Mental Health Act 1983;

b

to inform that person whether a community treatment order is to be made in respect of the patient;

c

if a community treatment order is to be made in respect of the patient and is to specify conditions which relate to contact with the victim or his family, to provide that person with details of those conditions;

d

if a community treatment order is in force in respect of the patient and the conditions specified in the order are to be varied under section 17B(4) of the Mental Health Act 1983, to provide that person with details of any variation which relates to contact with the victim or his family;

e

if a community treatment order in respect of the patient is to cease to be in force, to inform that person of the date on which it is to cease to be in force;

f

if, following the examination of the patient under section 20 of the Mental Health Act 1983, the authority for the patient's detention is not to be renewed, to inform that person of the date on which the authority is to expire;

g

to provide that person with such other information as the managers of the relevant hospital consider appropriate in all the circumstances of the case.

8

The relevant hospital has the meaning given by section 36A(6).

38BF14Removal of restriction

1

This section applies if, in a case where section 36 applies—

a

the hospital order in respect of the patient was made with a restriction order, and

b

the restriction order ceases to have effect while the hospital order continues in force.

2

Subsection (3) applies if a person who appears to the relevant probation body to be the victim of the offence or to act for the victim of the offence—

a

when his wishes were ascertained under section 36(4), expressed a wish to make representations about a matter specified in section 36(5) or to receive the information specified in section 36(6), or

b

has subsequently informed the relevant probation body that he wishes to make representations about such a matter or to receive that information.

3

The relevant probation body must take all reasonable steps—

a

to notify the managers of the relevant hospital of an address at which that person may be contacted;

b

to notify that person of the name and address of the hospital.

4

While the hospital order continues in force, the patient is to be regarded as a patient in respect of whom a hospital order was made without a restriction order; and sections 37A and 38A are to apply in relation to him accordingly.

5

The relevant hospital has the meaning given in section 36A(6).

6

The relevant probation body has the meaning given in section 37(8).

Hospital directions

39Victims' rights: preliminary

1

This section applies if—

a

a person (“the offender”) is convicted of a sexual or violent offence,

b

a relevant sentence is imposed on him in respect of the offence, and

c

a hospital direction and a limitation direction are given in relation to him by a court dealing with him for the offence.

2

The local probation board for the area in which the hospital direction is given must take all reasonable steps to ascertain whether a person who appears to the board to be the victim of the offence or to act for the victim of the offence wishes—

a

to make representations about the matters specified in subsection (3);

b

to receive the information specified in subsection (4).

3

The matters are—

a

whether the offender should, in the event of his discharge from hospital, be subject to any conditions and, if so, what conditions;

b

whether the offender should, in the event of his release from hospital, be subject to any licence conditions or supervision requirements and, if so, what licence conditions or supervision requirements;

c

if the offender is transferred to a prison or other institution in which he might have been detained if he had not been removed to hospital, whether he should, in the event of his release from prison or another such institution, be subject to any licence conditions or supervision requirements and, if so, what licence conditions or supervision requirements.

4

The information is—

a

information about any conditions to which the offender is to be subject in the event of his discharge;

b

information about any licence conditions or supervision requirements to which the offender is to be subject in the event of his release.

40Representations

1

This section applies if section 39 applies.

2

If—

a

a person makes representations about a matter specified in section 39(3) to the local probation board mentioned in section 39(2) or the relevant local probation board, and

b

it appears to the relevant local probation board that the person is the victim of the offence or acts for the victim of the offence,

the relevant local probation board must forward the representations to the persons responsible for determining the matter.

3

If the representations are about a matter specified in section 39(3)(a), the duty in subsection (2) applies only while the limitation direction given in relation to the offender is in force.

4

The Secretary of State must inform the relevant local probation board if he is considering—

a

whether to give a direction in respect of the offender under section 42(1) of the Mental Health Act 1983 (c. 20) (directions lifting restrictions),

b

whether to discharge the offender under section 42(2) of that Act, either absolutely or subject to conditions, or

c

if the offender has been discharged subject to conditions, whether to vary the conditions.

5

A Mental Health Review Tribunal must inform the relevant local probation board if—

a

an application is made to the tribunal by the offender under section 69, 70 or 75 of the Mental Health Act 1983 (applications concerning restricted patients), or

b

the Secretary of State refers the offender’s case to the tribunal under section 71 of that Act (references concerning restricted patients).

6

Subsection (7) applies if—

a

the relevant local probation board receives information under subsection (4) or (5), and

b

a person who appears to the relevant local probation board to be the victim of the offence or to act for the victim of the offence—

i

when his wishes were ascertained under section 39(2), expressed a wish to make representations about a matter specified in section 39(3)(a), or

ii

has made representations about such a matter to the relevant local probation board or the local probation board mentioned in section 39(2).

7

The relevant local probation board must provide the information to the person.

8

The relevant local probation board is—

a

if the offender is to be discharged from hospital subject to a condition that he reside in a particular area, the local probation board for the area;

b

if the offender is to be supervised on release by an officer of a local probation board, that local probation board;

c

in any other case, the local probation board for the area in which the hospital, prison or other place in which the offender is detained is situated.

41Information

1

This section applies if section 39 applies.

2

Subsection (3) applies if a person who appears to the relevant local probation board to be the victim of the offence or to act for the victim of the offence—

a

when his wishes were ascertained under section 39(2), expressed a wish to receive the information specified in section 39(4), or

b

has subsequently informed the relevant local probation board that he wishes to receive that information.

3

The relevant local probation board must take all reasonable steps—

a

to inform that person whether or not the offender is to be subject to any conditions in the event of his discharge;

b

if he is, to provide that person with details of any conditions which relate to contact with the victim or his family;

c

if the limitation direction in respect of the offender is to cease to have effect, to notify that person of the date on which it is to cease to have effect;

d

to inform that person whether or not the offender is to be subject to any licence conditions or supervision requirements in the event of his release;

e

if he is, to provide that person with details of any licence conditions or supervision requirements which relate to contact with the victim or his family;

f

to provide that person with such other information as the board considers appropriate in all the circumstances of the case.

4

The Secretary of State must inform the relevant local probation board—

a

whether the offender is to be discharged;

b

if he is, whether he is to be discharged absolutely or subject to conditions;

c

if he is to be discharged subject to conditions, what the conditions are to be;

d

if he has been discharged subject to conditions—

i

of any variation of the conditions by the Secretary of State;

ii

of any recall to hospital under section 42(3) of the Mental Health Act 1983 (c. 20);

e

if the limitation direction is to cease to have effect by virtue of action to be taken by the Secretary of State, of the date on which the limitation direction is to cease to have effect.

5

Subsections (6) and (7) apply (instead of subsection (4)) if—

a

an application is made to a Mental Health Review Tribunal by the offender under section 69, 70 or 75 of the Mental Health Act 1983 (c. 20) (applications concerning restricted patients), or

b

the Secretary of State refers the offender’s case to a Mental Health Review Tribunal under section 71 of that Act (references concerning restricted patients).

6

The tribunal must inform the relevant local probation board—

a

of the matters specified in subsection (4)(a) to (c);

b

if the offender has been discharged subject to conditions, of any variation of the conditions by the tribunal;

c

if the limitation direction is to cease to have effect by virtue of action to be taken by the tribunal, of the date on which the limitation direction is to cease to have effect.

7

The Secretary of State must inform the relevant local probation board of the matters specified in subsection (4)(d) and (e).

8

The duties in subsections (3)(a) to (c) and (4) to (7) apply only while the limitation direction is in force.

9

The relevant local probation board has the meaning given in section 40(8).

41AF15Removal of restriction

1

This section applies if, in a case where section 39 applies—

a

the limitation direction in respect of the offender ceases to be in force, and

b

he is treated for the purposes of the Mental Health Act 1983 as a patient in respect of whom a hospital order has effect.

2

Subsection (3) applies if a person who appears to the relevant probation body to be the victim of the offence or to act for the victim of the offence—

a

when his wishes were ascertained under section 39(2), expressed a wish to make representations about a matter specified in section 39(3) or to receive the information specified in section 39(4), or

b

has subsequently informed the relevant probation body that he wishes to make representations about such a matter or to receive that information.

3

The relevant probation body must take all reasonable steps—

a

to notify the managers of the relevant hospital of an address at which that person may be contacted;

b

to notify that person of the address of the hospital.

4

The offender is to be regarded as a patient in respect of whom a hospital order was made without a restriction order; and sections 37A and 38A are to apply in relation to him accordingly.

5

The relevant hospital has the meaning given in section 36A(6).

6

The relevant probation body has the meaning given in section 40(8).

Transfer directions

42Victims' rights: preliminary

1

This section applies if—

a

a person (“the offender”) is convicted of a sexual or violent offence,

b

a relevant sentence is imposed on him in respect of the offence, and

c

while the offender is serving the sentence, the Secretary of State gives a transfer direction and a restriction direction in respect of him.

2

The local probation board for the area in which the hospital specified in the transfer direction is situated must take all reasonable steps to ascertain whether a person who appears to the board to be the victim of the offence or to act for the victim of the offence wishes—

a

to make representations about the matters specified in subsection (3);

b

to receive the information specified in subsection (4).

3

The matters are—

a

whether the offender should be subject to any conditions in the event of his discharge from hospital;

b

if so, what conditions.

4

The information is information about any conditions to which the offender is to be subject in the event of his discharge from hospital.

42AF18Supplemental provision for case where no restriction direction given

1

This section applies if, in a case where section 42 applies, the transfer direction in respect of the patient was given without a restriction direction.

2

Subsection (3) applies if a person who appears to the local probation board or provider of probation services mentioned in section 42(2) to be the victim of the offence or to act for the victim of the offence, when his wishes are ascertained under section 42(2), expresses a wish—

a

to make representations about a matter specified in section 42(3), or

b

to receive the information specified in section 42(4).

3

The local probation board or provider of probation services must—

a

notify the managers of the hospital in which the patient is detained of that person's wish and of that person's name and address, and

b

notify that person of the name and address of the hospital.

4

Subsection (5) applies if a person who appears to the local probation board or provider of probation services mentioned in section 42(2) to be the victim of the offence or to act for the victim of the offence, subsequently to his wishes being ascertained under section 42(2), expressed a wish to do something specified in subsection (2)(a) or (b).

5

The local probation board or provider of probation services mentioned in section 42(2) must take all reasonable steps—

a

to ascertain whether the transfer direction given in respect of the patient continues in force and whether a community treatment order is in force in respect of him, and

b

if the board or the provider ascertains that the transfer direction does continue in force—

i

to notify the managers of the relevant hospital of that person's wish, and

ii

to notify that person of the name and address of the hospital.

6

The relevant hospital has the meaning given in section 36A(6).

43Representations

1

This section applies if section 42 applies.

2

If—

a

a person makes representations about a matter specified in section 42(3) to the local probation board mentioned in section 42(2) or the relevant local probation board, and

b

it appears to the relevant local probation board that the person is the victim of the offence or acts for the victim of the offence,

the relevant local probation board must forward the representations to the persons responsible for determining the matter.

3

The duty in subsection (2) applies only while the restriction direction given in respect of the offender is in force.

4

The Secretary of State must inform the relevant local probation board if he is considering—

a

whether to give a direction in respect of the offender under section 42(1) of the Mental Health Act 1983 (c. 20) (directions lifting restrictions),

b

whether to discharge the offender under section 42(2) of that Act, either absolutely or subject to conditions, or

c

if the offender has been discharged subject to conditions, whether to vary the conditions.

5

A Mental Health Review Tribunal must inform the relevant local probation board if—

a

an application is made to the tribunal by the offender under section 69, 70 or 75 of the Mental Health Act 1983 (applications concerning restricted patients), or

b

the Secretary of State refers the offender’s case to the tribunal under section 71 of that Act (references concerning restricted patients).

6

Subsection (7) applies if—

a

the relevant local probation board receives information under subsection (4) or (5), and

b

a person who appears to the relevant local probation board to be the victim of the offence or to act for the victim of the offence—

i

when his wishes were ascertained under section 42(2), expressed a wish to make representations about a matter specified in section 42(3), or

ii

has made representations about such a matter to the relevant local probation board or the local probation board mentioned in section 42(2).

7

The relevant local probation board must provide the information to the person.

8

The relevant local probation board is—

a

if the offender is to be discharged subject to a condition that he reside in a particular area, the local probation board for the area;

b

in any other case, the local probation board for the area in which the hospital in which the offender is detained is situated.

43AF19Representations where restriction direction not given

1

This section applies if, in a case where section 42 applies, the transfer direction in respect of the patient was given without a restriction direction.

2

Subsection (3) applies if—

a

a person makes representations about a matter specified in section 42(3) to the managers of the relevant hospital, and

b

it appears to the managers that the person is the victim of the offence or acts for the victim of the offence.

3

The managers must forward the representations to the persons responsible for determining the matter.

4

The responsible clinician must inform the managers of the relevant hospital if he is considering making—

a

an order for discharge in respect of the patient under section 23(2) of the Mental Health Act 1983,

b

a community treatment order in respect of him, or

c

an order under section 17B(4) of the Mental Health Act 1983 to vary the conditions specified in a community treatment order in force in respect of the patient.

5

Any person who has power to make an order for discharge in respect of the patient under section 23(3) of the Mental Health Act 1983 must inform the managers of the relevant hospital if he is considering making that order.

6

F16The First-tier Tribunal or the Mental Health Review Tribunal for Wales must inform the managers of the relevant hospital if—

a

an application is made to the tribunal under section 66 or 69 of the Mental Health Act 1983, or

b

the patient's case is referred to the tribunal under section 67 of that Act.

7

Subsection (8) applies if—

a

the managers of the relevant hospital receive information under subsection (4), (5) or (6), and

b

a person who appears to the managers to be the victim of the offence or to act for the victim of the offence—

i

when his wishes were ascertained under section 42(2), expressed a wish to make representations about a matter specified in section 42(3), or

ii

has made representations about such a matter to the managers of the hospital in which the patient was, at the time in question, detained.

8

The managers of the relevant hospital must provide the information to the person.

9

The relevant hospital has the meaning given in section 36A(6).

44Information

1

This section applies if section 42 applies.

2

Subsection (3) applies if a person who appears to the relevant local probation board to be the victim of the offence or to act for the victim of the offence—

a

when his wishes were ascertained under section 42(2), expressed a wish to receive the information specified in section 42(4), or

b

has subsequently informed the relevant local probation board that he wishes to receive that information.

3

The relevant local probation board must take all reasonable steps—

a

to inform that person whether or not the offender is to be subject to any conditions in the event of his discharge;

b

if he is, to provide that person with details of any conditions which relate to contact with the victim or his family;

c

if the restriction direction in respect of the offender is to cease to have effect, to notify that person of the date on which it is to cease to have effect;

d

to provide that person with such other information as the board considers appropriate in all the circumstances of the case.

4

The Secretary of State must inform the relevant local probation board—

a

whether the offender is to be discharged;

b

if he is, whether he is to be discharged absolutely or subject to conditions;

c

if he is to be discharged subject to conditions, what the conditions are to be;

d

if he has been discharged subject to conditions—

i

of any variation of the conditions by the Secretary of State;

ii

of any recall to hospital under section 42(3) of the Mental Health Act 1983 (c. 20);

e

if the restriction direction is to cease to have effect by virtue of action to be taken by the Secretary of State, of the date on which the restriction direction is to cease to have effect.

5

Subsections (6) and (7) apply (instead of subsection (4)) if—

a

an application is made to a Mental Health Review Tribunal by the offender under section 69, 70 or 75 of the Mental Health Act 1983 (applications concerning restricted patients), or

b

the Secretary of State refers the offender’s case to a Mental Health Review Tribunal under section 71 of that Act (references concerning restricted patients).

6

The tribunal must inform the relevant local probation board—

a

of the matters specified in subsection (4)(a) to (c);

b

if the offender has been discharged subject to conditions, of any variation of the conditions by the tribunal;

c

if the restriction direction is to cease to have effect by virtue of action to be taken by the tribunal, of the date on which the restriction direction is to cease to have effect.

7

The Secretary of State must inform the relevant local probation board of the matters specified in subsection (4)(d) and (e).

8

The duties in subsections (3) to (7) apply only while the restriction direction is in force.

9

The relevant local probation board has the meaning given in section 43(8).

44AF20Information where restriction direction not given

1

This section applies if, in a case where section 42 applies, the transfer direction in respect of the patient was given without a restriction direction.

2

The responsible clinician must inform the managers of the relevant hospital—

a

whether he is to make an order for discharge in respect of the patient under section 23(2) of the Mental Health Act 1983;

b

whether he is to make a community treatment order in respect of the patient;

c

if a community treatment order is to be made in respect of the patient, what conditions are to be specified in the order;

d

if a community treatment order is in force in respect of the patient, of any variation to be made under section 17B(4) of the Mental Health Act 1983 of the conditions specified in the order;

e

if a community treatment order in respect of the patient is to cease to be in force, of the date on which it is to cease to be in force;

f

if, following the examination of the patient under section 20 of the Mental Health Act 1983, it does not appear to the responsible clinician that the conditions set out in subsection (4) of that section are satisfied, of the date on which the authority for the patient's detention is to expire.

3

Any person who has power to make an order for discharge in respect of the patient under section 23(3) of the Mental Health Act 1983 must inform the managers of the relevant hospital if he is to make that order.

4

Subsection (5) applies if—

a

an application is made to F17the First-tier Tribunal or the Mental Health Review Tribunal for Wales under section 66 or 69 of the Mental Health Act 1983,

b

the patient's case is referred to F17the First-tier Tribunal or the Mental Health Review Tribunal for Wales under section 67 of that Act, or

c

the managers of the relevant hospital refer the patient's case to F17the First-tier Tribunal or the Mental Health Review Tribunal for Wales under section 68 of that Act.

5

The tribunal must inform the managers of the relevant hospital if it directs that the patient be discharged.

6

Subsection (7) applies if a person who appears to the managers of the relevant hospital to be the victim of the offence or to act for the victim of the offence—

a

when his wishes were ascertained under section 42(2), expressed a wish to receive the information specified in section 42(4), or

b

has subsequently informed the managers of the relevant hospital that he wishes to receive that information.

7

The managers of the relevant hospital order must take all reasonable steps—

a

to inform that person whether the patient is to be discharged under section 23 or 72 of the Mental Health Act 1983;

b

to inform that person whether a community treatment order is to be made in respect of the patient;

c

if a community treatment order is to be made in respect of the patient and is to specify conditions which relate to contact with the victim or his family, to provide that person with details of those conditions;

d

if a community treatment order is in force in respect of the patient and the conditions specified in the order are to be varied under section 17B(4) of the Mental Health Act 1983, to provide that person with details of any variation which relates to contact with the victim or his family;

e

if a community treatment order in respect of the patient is to cease to be in force, to inform that person of the date on which it is to cease to be in force;

f

if, following the examination of the patient under section 20 of the Mental Health Act 1983, the authority for the patient's detention is not to be renewed, to inform that person of the date on which the authority is to expire;

g

to provide that person with such other information as the managers of the relevant hospital consider appropriate in all the circumstances of the case.

8

The relevant hospital has the meaning given by section 36A(6).

44BF21Removal of restriction

1

This section applies if, in a case where section 42 applies—

a

the transfer direction in respect of the patient was given with a restriction direction, and

b

the restriction direction ceases to be in force while the transfer direction continues in force.

2

Subsection (3) applies if a person who appears to the relevant probation body to be the victim of the offence or to act for the victim of the offence—

a

when his wishes were ascertained under section 42(2), expressed a wish to make representations about a matter specified in section 42(3) or to receive the information specified in section 42(4), or

b

has subsequently informed the relevant probation body that he wishes to make representations about such a matter or to receive that information.

3

The relevant probation body must take all reasonable steps—

a

to notify the managers of the relevant hospital of an address at which that person may be contacted;

b

to notify that person of the name and address of the hospital.

4

While the transfer direction continues in force, the patient is to be regarded as a patient in respect of whom a transfer direction was given without a restriction direction; and sections 43A and 44A are to apply in relation to him accordingly.

5

The relevant hospital has the meaning given in section 36A(6).

6

The relevant probation body has the meaning given in section 43(8).

Interpretation

45Interpretation: sections 35 to 44

1

In sections 35 to 44—

  • “court” does not include a court-martial or the Courts-Martial Appeal Court;

  • “hospital direction” has the meaning given in section 45A(3)(a) of the Mental Health Act 1983 (c. 20);

  • “hospital order” has the meaning given in section 37(4) of that Act;

  • “licence condition” means a condition in a licence;

  • “limitation direction” has the meaning given in section 45A(3)(b) of the Mental Health Act 1983;

  • “local probation board” means a local probation board established under section 4 of the Criminal Justice and Court Services Act 2000 (c. 43);

  • “relevant sentence” means any of these—

    1. a

      a sentence of imprisonment for a term of 12 months or more;

    2. b

      a sentence of detention during Her Majesty’s pleasure;

    3. c

      a sentence of detention for a period of 12 months or more under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (offenders under 18 convicted of certain serious offences);

    4. d

      a detention and training order for a term of 12 months or more;

  • “restriction direction” has the meaning given in section 49(2) of the Mental Health Act 1983;

  • “restriction order” has the meaning given in section 41(1) of that Act;

  • “supervision requirements” means requirements specified in a notice under section 103(6) of the Powers of Criminal Courts (Sentencing) Act 2000;

  • “transfer direction” has the meaning given in section 47(1) of the Mental Health Act 1983.

2

For the purposes of sections 35 to 44, an offence is a sexual or violent offence if it is any of these—

a

murder or an offence specified in Schedule 15 to the Criminal Justice Act 2003 (c. 44);

b

an offence in respect of which the patient or offender is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 (c. 42));

c

an offence against a child within the meaning of Part 2 of the Criminal Justice and Court Services Act 2000.

Northern Ireland

46Victims of mentally disordered persons

1

The Justice (Northern Ireland) Act 2002 (c. 26) is amended as follows.

2

After section 69 (views on temporary release) insert—

69AInformation about discharge and leave of absence of mentally disordered persons

1

The Secretary of State must make a scheme requiring the Secretary of State to make available to persons falling within subsection (2) information about—

a

the discharge from hospital of, or

b

the grant of leave of absence from hospital to,

persons in respect of whom relevant determinations have been made.

2

The persons referred to in subsection (1) are victims of the offences in respect of which the determinations were made who wish to receive the information.

3

A relevant determination is made in respect of a person if—

a

a hospital order with a restriction order is made in respect of him by a court dealing with him for an offence, or

b

a transfer direction and a restriction direction are given in respect of him while he is serving a sentence of imprisonment in respect of an offence.

4

The Secretary of State may from time to time make a new scheme or alterations to a scheme.

5

The information to be made available under a scheme must include information as to any relevant conditions to which a person in respect of whom a relevant determination has been made is to be subject in the event of—

a

his discharge from hospital, or

b

the grant of leave of absence from hospital to him.

6

A condition is relevant for the purposes of subsection (5) if it appears to the Secretary of State that it might affect a victim of an offence in respect of which the determination was made.

7

A scheme may require the Secretary of State to take all reasonable steps to ascertain whether a person who appears to him to be the victim of an offence in respect of which a relevant determination has been made wishes to make representations about the matters specified in subsection (8).

8

The matters are—

a

whether the person in respect of whom the determination has been made should be subject to any conditions in the event of his discharge from hospital or the grant of leave of absence from hospital to him;

b

if so, what conditions.

9

A scheme that includes provision such as is mentioned in subsection (7) must specify how the representations are to be made.

10

A scheme may require other information in relation to the discharge of, or the grant of leave of absence to, persons in respect of whom relevant determinations are made to be made available under the scheme.

11

The other information may include, in cases of a description specified by the scheme or in which the Secretary of State considers it appropriate, the date on which it is anticipated that a person in respect of whom a relevant determination has been made will be discharged or granted leave of absence from hospital.

12

Subsections (5) to (8) of section 68 apply in relation to a scheme made under this section as they apply in relation to a scheme made under that section.

13

A scheme may make different provision in relation to different descriptions of persons in respect of whom a relevant determination is made.

69BViews on leave of absence

1

If a person who is the victim of an offence in respect of which a relevant determination has been made makes to the Secretary of State representations falling within subsection (2) the Secretary of State has the obligations specified in subsection (3).

2

Representations fall within this subsection if they are to the effect that the grant of leave of absence to the person in respect of whom the determination has been made would threaten the safety, or otherwise adversely affect the well-being, of—

a

the actual victim of the offence in respect of which the determination was made, or

b

a person who is regarded for the purposes of a scheme under section 69A as a victim of that offence by virtue of section 68(5) (as applied by section 69A(12)).

3

The Secretary of State must—

a

have regard to the representations in deciding whether he should give his consent to leave of absence being granted, and

b

inform the victim of any such decision.

4

Section 69A(3) (relevant determination) applies for the purposes of this section.

3

In section 70 (supplementary), after subsection (3) insert—

4

In sections 68 and 69 references to a person serving a sentence of imprisonment in Northern Ireland include a person detained in hospital pursuant to a transfer direction and a restriction direction.

5

In subsection (4) and section 69A(3)—

“restriction direction” has the meaning given in Article 55(2) of the Mental Health (Northern Ireland) Order 1986;

“transfer direction” has the meaning given in Article 53(2) of that Order.

6

In section 69A(3)—

“hospital order” has the meaning given in Article 44(1) of the Mental Health (Northern Ireland) Order 1986;

“restriction order” has the meaning given in Article 47(1) of that Order;

“sentence of imprisonment” has the meaning given in Article 53(5) of that Order.

7

In sections 69A and 69B “leave of absence” means leave of absence under Article 15 of the Mental Health (Northern Ireland) Order 1986.

4

In section 90(5) (statutory rules), in paragraph (b) after “section 68” insert “ or 69A ”.

Chapter 3Other matters relating to victims etc

Parliamentary Commissioner

47Investigations by Parliamentary Commissioner

Schedule 7 (which amends the Parliamentary Commissioner Act 1967 (c. 13)) has effect.

Commissioner for Victims and Witnesses

C348Commissioner for Victims and Witnesses

1

The Secretary of State F22for Justice must appoint a Commissioner for Victims and Witnesses (referred to in this Part as the Commissioner).

2

Before appointing the Commissioner the Secretary of State must consult the Attorney General and the F23Secretary of State for the Home Department as to the person to be appointed.

3

The Commissioner is a corporation sole.

4

The Commissioner is not to be regarded—

a

as the servant or agent of the Crown, or

b

as enjoying any status, immunity or privilege of the Crown.

5

The Commissioner’s property is not to be regarded as property of, or held on behalf of, the Crown.

6

Schedule 8 (which make further provision in connection with the Commissioner) has effect.

48Commissioner for Victims and Witnesses

1

The Secretary of State must appoint a Commissioner for Victims and Witnesses (referred to in this Part as the Commissioner).

2

Before appointing the Commissioner the Secretary of State must consult the Attorney General and the Lord Chancellor as to the person to be appointed.

3

The Commissioner is a corporation sole.

4

The Commissioner is not to be regarded—

a

as the servant or agent of the Crown, or

b

as enjoying any status, immunity or privilege of the Crown.

5

The Commissioner’s property is not to be regarded as property of, or held on behalf of, the Crown.

6

Schedule 8 (which make further provision in connection with the Commissioner) has effect.

C449General functions of Commissioner

1

The Commissioner must—

a

promote the interests of victims and witnesses;

b

take such steps as he considers appropriate with a view to encouraging good practice in the treatment of victims and witnesses;

c

keep under review the operation of the code of practice issued under section 32.

2

The Commissioner may, for any purpose connected with the performance of his duties under subsection (1)—

a

make proposals to the Secretary of State F24for Justice for amending the code (at the request of the Secretary of State F24for Justice or on his own initiative);

b

make a report to the Secretary of State F24for Justice;

c

make recommendations to an authority within his remit;

d

undertake or arrange for or support (financially or otherwise) the carrying out of research;

e

consult any person he thinks appropriate.

3

If the Commissioner makes a report to the Secretary of State F24for Justice under subsection (2)(b)—

a

the Commissioner must send a copy of the report to the Attorney General and the F25Secretary of State for the Home Department;

b

the Secretary of State F24for Justice must lay a copy of the report before Parliament and arrange for the report to be published.

49General functions of Commissioner

1

The Commissioner must—

a

promote the interests of victims and witnesses;

b

take such steps as he considers appropriate with a view to encouraging good practice in the treatment of victims and witnesses;

c

keep under review the operation of the code of practice issued under section 32.

2

The Commissioner may, for any purpose connected with the performance of his duties under subsection (1)—

a

make proposals to the Secretary of State for amending the code (at the request of the Secretary of State or on his own initiative);

b

make a report to the Secretary of State;

c

make recommendations to an authority within his remit;

d

undertake or arrange for or support (financially or otherwise) the carrying out of research;

e

consult any person he thinks appropriate.

3

If the Commissioner makes a report to the Secretary of State under subsection (2)(b)—

a

the Commissioner must send a copy of the report to the Attorney General and the Lord Chancellor;

b

the Secretary of State must lay a copy of the report before Parliament and arrange for the report to be published.

50Advice

1

If he is required to do so by a Minister of the Crown, the Commissioner must give advice to the Minister of the Crown in connection with any matter which—

a

is specified by the Minister, and

b

relates to victims or witnesses.

2

If he is required to do so by or on behalf of an authority within his remit, the Commissioner must give advice to the authority in connection with the information provided or to be provided by or on behalf of the authority to victims or witnesses.

3

In this section “Minister of the Crown” includes the Treasury.

51Restrictions on exercise of functions

The Commissioner must not exercise any of his functions in relation to—

a

a particular victim or witness;

b

the bringing or conduct of particular proceedings;

c

anything done or omitted to be done by a person acting in a judicial capacity or on the instructions of or on behalf of such a person.

52“Victims” and “witnesses”

1

This section applies for the purposes of sections 48 to 51.

2

“Victim” means—

a

a victim of an offence, or

b

a victim of anti-social behaviour.

3

It is immaterial for the purposes of subsection (2)(a) that—

a

no complaint has been made about the offence;

b

no person has been charged with or convicted of the offence.

4

“Witness” means a person (other than a defendant)—

a

who has witnessed conduct in relation to which he may be or has been called to give evidence in relevant proceedings;

b

who is able to provide or has provided anything which might be used or has been used as evidence in relevant proceedings; or

c

who is able to provide or has provided anything mentioned in subsection (5) (whether or not admissible in evidence in relevant proceedings).

5

The things referred to in subsection (4)(c) are—

a

anything which might tend to confirm, has tended to confirm or might have tended to confirm evidence which may be, has been or could have been admitted in relevant proceedings;

b

anything which might be, has been or might have been referred to in evidence given in relevant proceedings by another person;

c

anything which might be, has been or might have been used as the basis for any cross examination in the course of relevant proceedings.

6

For the purposes of subsection (4)—

a

a person is a defendant in relation to any criminal proceedings if he might be, has been or might have been charged with or convicted of an offence in the proceedings;

b

a person is a defendant in relation to any other relevant proceedings if he might be, has been or might have been the subject of an order made in those proceedings.

7

In subsections (4) to (6) “relevant proceedings” means—

a

criminal proceedings;

b

proceedings of any other kind in respect of anti-social behaviour.

8

For the purposes of this section—

a

“anti-social behaviour” means behaviour by a person which causes or is likely to cause harassment, alarm or distress to one or more persons not of the same household as the person;

b

a person is a victim of anti-social behaviour if the behaviour has caused him harassment, alarm or distress and he is not of the same household as the person who engages in the behaviour.

C553Authorities within Commissioner’s remit

1

For the purposes of this Part the authorities within the Commissioner’s remit are those specified in Schedule 9.

2

An authority specified in Schedule 9 that has functions in relation to an area outside England and Wales is within the Commissioner’s remit only to the extent that it discharges its functions in relation to England and Wales.

3

Subsection (2) does not apply in relation to the Foreign and Commonwealth Office.

4

The Secretary of State may by order amend Schedule 9 by—

a

adding an authority appearing to him to exercise functions of a public nature;

b

omitting an authority;

c

changing the description of an authority.

5

In preparing a draft of an order under subsection (4) the Secretary of State must consult the Attorney General and the Lord Chancellor.

Disclosure of information

I5C654Disclosure of information

1

A person may disclose information to a relevant authority for a purpose specified in subsection (2).

2

The purposes are purposes connected with any of these—

a

compliance with the code issued under section 32;

b

compliance with sections 35 to 44;

c

the carrying out of the functions of the Commissioner.

3

These are relevant authorities—

a

a person required to do anything under the code issued under section 32;

b

a local probation board established under section 4 of the Criminal Justice and Court Services Act 2000 (c. 43);

c

the Commissioner;

d

an authority within the Commissioner’s remit.

4

The Secretary of State may by order—

a

amend subsection (2) by adding any purpose appearing to him to be connected with the assistance of victims of offences or anti-social behaviour, witnesses of offences or anti-social behaviour or other persons affected by offences or anti-social behaviour;

b

amend subsection (3) by adding any authority appearing to him to exercise functions of a public nature.

5

The reference in subsection (4)(a) to persons affected by offences does not include persons accused or convicted of offences.

6

The Secretary of State may exercise the power in subsection (4) only after consulting the Attorney General and the Lord Chancellor.

7

Nothing in this section authorises the making of a disclosure which contravenes the Data Protection Act 1998 (c. 29).

8

This section does not affect a power to disclose which exists apart from this section.

Victims' Advisory Panel

C755Victims' Advisory Panel

C81

The Secretary of State must appoint persons to form a panel, to be known as the Victims' Advisory Panel.

C112

The Secretary of State must consult the Attorney General and the Lord Chancellor before—

a

appointing a person to the Panel, or

b

removing a person from the Panel.

C123

The Secretary of State must consult the Panel at such times and in such manner as he thinks appropriate on matters appearing to him to relate to victims of offences or anti-social behaviour or witnesses of offences or anti-social behaviour.

C134

The Secretary of State may reimburse the members of the Panel for such of their travelling and other expenses as he thinks appropriate.

C145

If the Secretary of State consults the Panel under subsection (3) in a particular year, he must arrange for the Panel to prepare a report for the year—

a

summarising what the Panel has done in response to the consultation, and

b

dealing with such other matters as the Panel consider appropriate.

C156

If a report is prepared under subsection (5), the Secretary of State must—

a

arrange for it to be published, and

b

lay it before Parliament.

7

The non-statutory Victims' Advisory Panel is to be treated as having been established in accordance with this section.

8

If the Secretary of State consults the non-statutory Victims' Advisory Panel on a matter mentioned in subsection (3) before the date on which this section comes into force, the consultation is to be treated as taking place under subsection (3).

9

The non-statutory Victims' Advisory Panel is the unincorporated body of persons known as the Victims' Advisory Panel established by the Secretary of State before the date on which this section comes into force.

10

In this section “year” means a period of 12 months beginning on 1 April.

Grants

56Grants for assisting victims, witnesses etc

1

The Secretary of State may pay such grants to such persons as he considers appropriate in connection with measures which appear to him to be intended to assist victims, witnesses or other persons affected by offences.

2

The Secretary of State may make a grant under this section subject to such conditions as he considers appropriate.

Criminal injuries compensation

57Recovery of criminal injuries compensation from offenders

1

The Criminal Injuries Compensation Act 1995 (c. 53) is amended as follows.

C92

After section 7 insert—

7ARecovery of compensation from offenders: general

1

The Secretary of State may, by regulations made by statutory instrument, make provision for the recovery from an appropriate person of an amount equal to all or part of the compensation paid in respect of a criminal injury.

2

An appropriate person is a person who has been convicted of an offence in respect of the criminal injury.

3

The amount recoverable from a person under the regulations must be determined by reference only to the extent to which the criminal injury is directly attributable to an offence of which he has been convicted.

4

The regulations may confer functions in respect of recovery on—

a

claims officers;

b

if a Scheme manager has been appointed, persons appointed by the Scheme manager under section 3(4)(a).

5

The regulations may not authorise the recovery of an amount in respect of compensation from a person to the extent that the compensation has been repaid in accordance with the Scheme.

7BRecovery notices

1

If, under regulations made under section 7A(1), an amount has been determined as recoverable from a person, he must be given a notice (a “recovery notice”) in accordance with the regulations which—

a

requires him to pay that amount, and

b

contains the information mentioned in subsection (2).

2

The information is—

a

the reasons for the determination that an amount is recoverable from the person;

b

the basis on which the amount has been determined;

c

the way in which and the date before which the amount is required to be paid;

d

the means by which the amount may be recovered if it is not paid in accordance with the notice;

e

the grounds on which and the procedure by means of which he may seek a review if he objects to—

i

the determination that an amount is recoverable from him;

ii

the amount determined as recoverable from him.

3

The Secretary of State may by order made by statutory instrument amend subsection (2) by—

a

adding information;

b

omitting information;

c

changing the description of information.

7CReview of recovery determinations

1

Regulations under section 7A(1) shall include provision for the review, in such circumstances as may be prescribed by the regulations, of—

a

a determination that an amount is recoverable from a person;

b

the amount determined as recoverable from a person.

2

A person from whom an amount has been determined as recoverable under the regulations may seek such a review only on the grounds—

a

that he has not been convicted of an offence to which the injury is directly attributable;

b

that the compensation paid was not determined in accordance with the Scheme;

c

that the amount determined as recoverable from him was not determined in accordance with the regulations.

3

Any such review must be conducted by a person other than the person who made the determination under review.

4

The person conducting any such review may—

a

set aside the determination that the amount is recoverable;

b

reduce the amount determined as recoverable;

c

increase the amount determined as recoverable;

d

determine to take no action under paragraphs (a) to (c).

5

But the person conducting any such review may increase the amount determined as recoverable if (but only if) it appears to that person that the interests of justice require the amount to be increased.

7DRecovery proceedings

1

An amount determined as recoverable from a person under regulations under section 7A(1) is recoverable from him as a debt due to the Crown if (but only if)—

a

he has been given a recovery notice in accordance with the regulations which complies with the requirements of section 7B, and

b

he has failed to pay the amount in accordance with the notice.

2

In any proceedings for the recovery of the amount from a person, it is a defence for the person to show—

a

that he has not been convicted of an offence to which the injury is directly attributable;

b

that the compensation paid was not determined in accordance with the Scheme; or

c

that the amount determined as recoverable from him was not determined in accordance with regulations under section 7A.

3

In any such proceedings, except for the purposes of subsection (2)(b), no question may be raised or finding made as to the amount that was, or ought to have been, the subject of an award.

4

For the purposes of section 9 of the Limitation Act 1980 (time limit for actions for sums recoverable by statute to run from date on which cause of action accrued) the cause of action to recover that amount shall be taken to have accrued—

a

on the date on which the compensation was paid; or

b

if later, on the date on which a person from whom an amount is sought to be recovered was convicted of an offence to which the injury is directly attributable.

5

If that person is convicted of more than one such offence and the convictions are made on different dates, the reference in subsection (4)(b) to the date on which he was convicted of such an offence shall be taken to be a reference to the earlier or earliest (as the case may be) of the dates on which he was convicted of such an offence.

3

In section 9(7) (financial provisions: sums payable into Consolidated Fund), after “section 3(1)(c)” insert “ , or by virtue of regulations made under section 7A(1), ”.

4

In section 11, after subsection (8) insert—

8A

No regulations under section 7A(1) or order under section 7B(3) shall be made unless a draft of the regulations or order has been laid before Parliament and approved by a resolution of each House.

Part 4Supplementary

I658Amendments and repeals

1

Schedule 10 (minor and consequential amendments) has effect.

2

The provisions mentioned in Schedule 11 are repealed or revoked to the extent specified.

I759Transitional and transitory provisions

Schedule 12 (transitional and transitory provisions) has effect.

P160Commencement

The preceding provisions of this Act come into force in accordance with provision made by the Secretary of State by order.

61Orders

1

An order under this Act—

a

may make different provision for different purposes;

b

may include supplementary, incidental, saving or transitional provisions.

2

Any power to make an order under this Act is exercisable by statutory instrument.

3

A statutory instrument containing an order under section 9(6) or 33(7) is subject to annulment in pursuance of a resolution of either House of Parliament.

4

No order may be made under section 14(5), 53(4) or 54(4) unless a draft of the order has been laid before Parliament and approved by a resolution of each House.

62Extent

1

Subject to the following provisions of this section, Parts 1 to 3 extend to England and Wales only.

2

The following provisions extend also to Northern Ireland—

  • section 5;

  • section 9;

  • sections 17 to 21;

  • Schedule 1;

  • section 56;

3

The following provisions extend to Northern Ireland only—

  • section 7;

  • section 10(2);

  • section 13;

  • section 23;

  • section 46.

4

Section 8, so far as relating to proceedings before courts-martial constituted under a particular Act mentioned in subsection (2) of that section, has the same extent as that Act.

5

An amendment, repeal or revocation in Schedule 3, 7, 8, 10 or 11 has the same extent as the provision to which it relates.

63Short title

This Act may be cited as the Domestic Violence, Crime and Victims Act 2004.

SCHEDULES

SCHEDULE 1Modification of sections 17 to 20 for Northern Ireland

Section 21

1

For section 18 substitute—

18Procedure for applications under section 17

1

An application under section 17 must be determined—

a

at a preparatory hearing (within the meaning of the 1988 Order), or

b

at a hearing specified in, or for which provision is made by, Crown Court rules.

2

The parties to a hearing mentioned in subsection (1) at which an application under section 17 is to be determined must be given an opportunity to make representations with respect to the application.

3

Article 6(1) of the 1988 Order (which sets out the purposes of preparatory hearings) is to have effect as if the purposes there mentioned included the purpose of determining an application under section 17.

4

Article 8(11) of the 1988 Order (appeal to Court of Appeal) is to have effect as if it also provided for an appeal to the Court of Appeal to lie from the determination by a judge of an application under section 17.

5

In this section “the 1988 Order” means the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988.

18AAppeals in respect of hearings under section 18(1)(b)

1

An appeal shall lie to the Court of Appeal from the refusal by a judge at a hearing mentioned in section 18(1)(b) of an application under section 17 or from an order of a judge at such a hearing under section 17(2) which is made on the determination of such an application.

2

Such an appeal may be brought only with the leave of the judge or the Court of Appeal.

3

An order or a refusal of an application from which an appeal under this section lies is not to take effect—

a

before the expiration of the period for bringing an appeal under this section, or

b

if such an appeal is brought, before the appeal is finally disposed of or abandoned.

4

On the termination of the hearing of an appeal under this section, the Court of Appeal may—

a

where the appeal is from an order, confirm or revoke the order, or

b

where the appeal is from a refusal of an application, confirm the refusal or make the order which is the subject of the application.

5

In section 31(1) of the Criminal Appeal (Northern Ireland) Act 1980 (right of appeal to House of Lords) for “Act or” substitute “ Act, section 18A of the Domestic Violence, Crime and Victims Act 2004, ”.

6

In section 35 of that Act (bail) after “appeal under” insert “ section 18A of the Domestic Violence, Crime and Victims Act 2004, ”.

7

The Secretary of State may make an order containing provision, in relation to proceedings before the Court of Appeal under this section, which corresponds to any provision, in relation to appeals or other proceedings before that court, which is contained in the Criminal Appeal (Northern Ireland) Act 1980 (subject to any specified modifications).

8

A statutory instrument containing an order under subsection (7) is subject to annulment in pursuance of a resolution of either House of Parliament.

18BReporting restrictions

1

Sections 41 and 42 of the Criminal Procedure and Investigations Act 1996 are to apply in relation to—

a

a hearing of the kind mentioned in section 18(1)(b), and

b

any appeal or application for leave to appeal relating to such a hearing,

as they apply in relation to a ruling under section 40 of that Act, but subject to the following modifications.

2

Section 41(2) of that Act is to have effect as if for paragraphs (a) to (d) there were substituted—

a

a hearing of the kind mentioned in section 18(1)(b) of the Domestic Violence, Crime and Victims Act 2004;

b

any appeal or application for leave to appeal relating to such a hearing.

3

Section 41(3) of that Act is to have effect as if—

a

for “(2)” there were substituted “ (2)(a) or an application to that judge for leave to appeal to the Court of Appeal ”, and

b

after “matter”, in the second place where it occurs, there were inserted “ or application ”.

4

Section 41 of that Act is to have effect as if after subsection (3) there were inserted—

3A

The Court of Appeal may order that subsection (1) shall not apply, or shall not apply to a specified extent, to a report of—

a

an appeal to that Court, or

b

an application to that Court for leave to appeal.

3B

The House of Lords may order that subsection (1) shall not apply, or shall not apply to a specified extent, to a report of—

a

an appeal to that House, or

b

an application to that House for leave to appeal.

5

Section 41(4) of that Act is to have effect as if for “(3) the judge” there were substituted “ (3), (3A) or (3B), the judge, the Court of Appeal or the House of Lords ”.

6

Section 41(5) of that Act is to have effect as if for “(3) the judge” there were substituted “ (3), (3A) or (3B), the judge, the Court of Appeal or the House of Lords ”.

2

In section 19(3) after “enactment” insert “ (including any provision of Northern Ireland legislation) ”.

3

In section 19(4)(b) for the words from “section” to “etc)” substitute “ section 16(1) of the Criminal Appeal (Northern Ireland) Act 1980 (notice of appeal or application for leave) ”.

4

In section 19(5) for “section 18(2) of the Criminal Appeal Act 1968” substitute “ section 16(1) of the Criminal Appeal (Northern Ireland) Act 1980 ”.

5

For section 19(7) substitute—

7

Nothing in this section or section 17, 18, 18A, 18B or 20 affects the requirement under Article 49A of the Mental Health (Northern Ireland) Order 1986 that any question, finding or verdict mentioned in that Article be determined, made or returned by a jury.

6

For section 20(2) substitute—

2

Without limiting subsection (1), rules of court may in particular make provision—

a

for time limits within which applications under section 17 must be made or within which other things in connection with that section or sections 18 to 19 must be done;

b

in relation to hearings of the kind mentioned in section 18(1)(b).

7

In section 20(3)—

a

after “section” insert “ or section 18(1)(b) ”;

b

after “enactment” insert “ (including any provision of Northern Ireland legislation) ”.

SCHEDULE 2Supervision orders on finding of insanity or unfitness to plead etc

Section 24

The following is the Schedule inserted before Schedule 2 to the Criminal Procedure (Insanity) Act 1964 (c. 84)—

SCHEDULE 1ASupervision orders

Section 5A

Part 1Preliminary

1

1

In this Schedule “supervision order” means an order which requires the person in respect of whom it is made (“the supervised person”) to be under the supervision of a social worker or an officer of a local probation board (“the supervising officer”) for a period specified in the order of not more than two years.

2

A supervision order may, in accordance with paragraph 4 or 5 below, require the supervised person to submit, during the whole of that period or such part of it as may be specified in the order, to treatment by or under the direction of a registered medical practitioner.

3

The Secretary of State may by order direct that sub-paragraph (1) above shall be amended by substituting, for the period for the time being specified there, such period as may be specified in the order.

4

An order under sub-paragraph (3) above may make in paragraph 11(2) below any amendment which the Secretary of State thinks necessary in consequence of any substitution made by the order.

5

The power of the Secretary of State to make orders under sub-paragraph (3) above shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

Part 2Making and effect of orders

Circumstances in which orders may be made

2

1

The court shall not make a supervision order unless it is satisfied that, having regard to all the circumstances of the case, the making of such an order is the most suitable means of dealing with the accused or appellant.

2

The court shall not make a supervision order unless it is also satisfied—

a

that the supervising officer intended to be specified in the order is willing to undertake the supervision; and

b

that arrangements have been made for the treatment intended to be specified in the order.

Making of orders and general requirements

3

1

A supervision order shall either—

a

specify the local social services authority area in which the supervised person resides or will reside, and require him to be under the supervision of a social worker of the local social services authority for that area; or

b

specify the local justice area in which that person resides or will reside, and require him to be under the supervision of an officer of a local probation board appointed for or assigned to that area.

2

Before making such an order, the court shall explain to the supervised person in ordinary language—

a

the effect of the order (including any requirements proposed to be included in the order in accordance with paragraph 4, 5 or 8 below); and

b

that a magistrates' court has power under paragraphs 9 to 11 below to review the order on the application either of the supervised person or of the supervising officer.

3

After making such an order, the court shall forthwith give copies of the order to an officer of a local probation board assigned to the court, and he shall give a copy—

a

to the supervised person; and

b

to the supervising officer.

4

After making such an order, the court shall also send to the designated officer for the local justice area in which the supervised person resides or will reside (“the local justice area concerned”)—

a

a copy of the order; and

b

such documents and information relating to the case as it considers likely to be of assistance to a court acting for that area in the exercise of its functions in relation to the order.

5

Where such an order is made, the supervised person shall keep in touch with the supervising officer in accordance with such instructions as he may from time to time be given by that officer and shall notify him of any change of address.

Requirements as to medical treatment

4

1

A supervision order may, if the court is satisfied as mentioned in sub-paragraph (2) below, include a requirement that the supervised person shall submit, during the whole of the period specified in the order or during such part of that period as may be so specified, to treatment by or under the direction of a registered medical practitioner with a view to the improvement of his mental condition.

2

The court may impose such a requirement only if satisfied on the written or oral evidence of two or more registered medical practitioners, at least one of whom is duly registered, that the mental condition of the supervised person—

a

is such as requires and may be susceptible to treatment; but

b

is not such as to warrant the making of a hospital order within the meaning of the Mental Health Act 1983.

3

The treatment required under this paragraph by any such order shall be such one of the following kinds of treatment as may be specified in the order, that is to say—

a

treatment as a non-resident patient at such institution or place as may be specified in the order; and

b

treatment by or under the direction of such registered medical practitioner as may be so specified;

but the nature of the treatment shall not be specified in the order except as mentioned in paragraph (a) or (b) above.

Requirements as to medical treatment

5

1

This paragraph applies where the court is satisfied on the written or oral evidence of two or more registered medical practitioners that—

a

because of his medical condition, other than his mental condition, the supervised person is likely to pose a risk to himself or others; and

b

the condition may be susceptible to treatment.

2

The supervision order may (whether or not it includes a requirement under paragraph 4 above) include a requirement that the supervised person shall submit, during the whole of the period specified in the order or during such part of that period as may be so specified, to treatment by or under the direction of a registered medical practitioner with a view to the improvement of the condition.

3

The treatment required under this paragraph by any such order shall be such one of the following kinds of treatment as may be specified in the order, that is to say—

a

treatment as a non-resident patient at such institution or place as may be specified in the order; and

b

treatment by or under the direction of such registered medical practitioner as may be so specified;

but the nature of the treatment shall not be specified in the order except as mentioned in paragraph (a) or (b) above.

Requirements as to medical treatment

6

1

Where the medical practitioner by whom or under whose direction the supervised person is being treated in pursuance of a requirement under paragraph 4 or 5 above is of the opinion that part of the treatment can be better or more conveniently given in or at an institution or place which—

a

is not specified in the order, and

b

is one in or at which the treatment of the supervised person will be given by or under the direction of a registered medical practitioner,

he may, with the consent of the supervised person, make arrangements for him to be treated accordingly.

2

Such arrangements may provide for the supervised person to receive part of his treatment as a resident patient in an institution or place of any description.

3

Where any such arrangements are made for the treatment of a supervised person—

a

the medical practitioner by whom the arrangements are made shall give notice in writing to the supervising officer, specifying the institution or place in or at which the treatment is to be carried out; and

b

the treatment provided for by the arrangements shall be deemed to be treatment to which he is required to submit in pursuance of the supervision order.

Requirements as to medical treatment

7

While the supervised person is under treatment as a resident patient in pursuance of arrangements under paragraph 6 above, the supervising officer shall carry out the supervision to such extent only as may be necessary for the purpose of the revocation or amendment of the order.

Requirements as to residence

8

1

Subject to sub-paragraph (2) below, a supervision order may include requirements as to the residence of the supervised person.

2

Before making such an order containing any such requirement, the court shall consider the home surroundings of the supervised person.

Part 3Revocation and amendment of orders

Revocation of order

9

1

Where a supervision order is in force in respect of any person and, on the application of the supervised person or the supervising officer, it appears to a magistrates' court acting for the local justice area concerned that, having regard to circumstances which have arisen since the order was made, it would be in the interests of the health or welfare of the supervised person that the order should be revoked, the court may revoke the order.

2

The court by which a supervision order was made may of its own motion revoke the order if, having regard to circumstances which have arisen since the order was made, it considers that it would be inappropriate for the order to continue.

Amendment of order by reason of change of residence

10

1

This paragraph applies where, at any time while a supervision order is in force in respect of any person, a magistrates' court acting for the local justice area concerned is satisfied that the supervised person proposes to change, or has changed, his residence from the area specified in the order to another local social services authority area or local justice area.

2

Subject to sub-paragraph (3) below, the court may, and on the application of the supervising officer shall, amend the supervision order by substituting the other area for the area specified in the order.

3

The court shall not amend under this paragraph a supervision order which contains requirements which, in the opinion of the court, cannot be complied with unless the supervised person continues to reside in the area specified in the order unless, in accordance with paragraph 11 below, it either—

a

cancels those requirements; or

b

substitutes for those requirements other requirements which can be complied with if the supervised person ceases to reside in that area.

Amendment of requirements of order

11

1

Without prejudice to the provisions of paragraph 10 above, but subject to sub-paragraph (2) below, a magistrates' court for the local justice area concerned may, on the application of the supervised person or the supervising officer, by order amend a supervision order—

a

by cancelling any of the requirements of the order; or

b

by inserting in the order (either in addition to or in substitution for any such requirement) any requirement which the court could include if it were the court by which the order was made and were then making it.

2

The power of a magistrates' court under sub-paragraph (1) above shall not include power to amend an order by extending the period specified in it beyond the end of two years from the day of the original order.

Amendment of requirements in pursuance of medical report

12

1

Where the medical practitioner by whom or under whose direction the supervised person is being treated for his mental condition in pursuance of any requirement of a supervision order—

a

is of the opinion mentioned in sub-paragraph (2) below, or

b

is for any reason unwilling to continue to treat or direct the treatment of the supervised person,

he shall make a report in writing to that effect to the supervising officer and that officer shall apply under paragraph 11 above to a magistrates' court for the local justice area concerned for the variation or cancellation of the requirement.

2

The opinion referred to in sub-paragraph (1) above is—

a

that the treatment of the supervised person should be continued beyond the period specified in the supervision order;

b

that the supervised person needs different treatment, being treatment of a kind to which he could be required to submit in pursuance of such an order;

c

that the supervised person is not susceptible to treatment; or

d

that the supervised person does not require further treatment.

Supplemental

13

1

On the making under paragraph 9 above of an order revoking a supervision order, the designated officer for the local justice area concerned, or (as the case may be) the Crown Court, shall forthwith give copies of the revoking order to the supervising officer.

2

A supervising officer to whom in accordance with sub-paragraph (1) above copies of a revoking order are given shall give a copy to the supervised person and to the person in charge of any institution in which the supervised person is residing.

Supplemental

14

1

On the making under paragraph 10 or 11 above of any order amending a supervision order, the designated officer for the local justice area concerned shall forthwith—

a

if the order amends the supervision order otherwise than by substituting a new area or a new place for the one specified in the supervision order, give copies of the amending order to the supervising officer;

b

if the order amends the supervision order in the manner excepted by paragraph (a) above, send to the designated officer for the new local justice area concerned—

i

copies of the amending order; and

ii

such documents and information relating to the case as he considers likely to be of assistance to a court acting for that area in exercising its functions in relation to the order;

and in a case falling within paragraph (b) above, the designated officer for that area shall give copies of the amending order to the supervising officer.

2

Where the designated officer for the court making the order is also the designated officer for the new local justice area—

a

sub-paragraph (1)(b) above does not apply; but

b

the designated officers shall give copies of the amending order to the supervising officer.

3

Where in accordance with sub-paragraph (1) or (2) above copies of an order are given to the supervising officer, he shall give a copy to the supervised person and to the person in charge of any institution in which the supervised person is or was residing.

SCHEDULE 3Unfitness to stand trial and insanity: courts-martial etc

Section 26

Army Act 1955 (3 & 4 Eliz. 2 c. 18) and Air Force Act 1955 (3 & 4 Eliz. 2 c. 19)

1

For section 116 of the Army Act 1955 and of the Air Force Act 1955 (provisions where accused found insane) substitute—

Findings of unfitness to stand trial and insanity

Fitness to stand trial

115AFitness to stand trial

1

This section applies where on a trial by court-martial of a person the question arises (at the instance of the defence or otherwise) whether the accused is fit to stand trial.

2

For the purposes of this Act a person is unfit to stand trial if he is under a disability such that apart from the Criminal Procedure (Insanity) Act 1964 it would constitute a bar to his being tried on indictment in England and Wales.

3

If, having regard to the nature of the supposed disability, the judge advocate is of opinion that it is expedient to do so and in the interests of the accused, he may postpone consideration of the question of fitness to stand trial until any time up to the opening of the case for the defence.

4

If, before the question of fitness to stand trial falls to be determined, the court finds the accused not guilty on the charge or each of the charges on which he is being tried, that question shall not be determined.

5

Subject to subsections (3) and (4) above, the question of fitness to stand trial shall be determined as soon as it arises.

6

The question of fitness to stand trial shall be determined by the judge advocate sitting alone.

7

A judge advocate shall not make a determination under subsection (6) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.

Finding that the accused did the act or made the omission charged

115BFinding that the accused did the act or made the omission charged

1

This section applies where in accordance with section 115A(6) above it is determined by a judge advocate that the accused is unfit to stand trial.

2

The trial shall not proceed or further proceed but it shall be determined by the court—

a

on the evidence (if any) already given in the trial, and

b

on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the judge advocate under this section to put the case for the defence,

whether it is satisfied, as respects the charge or each of the charges on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence.

3

If as respects that charge or any of those charges the court is satisfied as mentioned in subsection (2) above, it shall make a finding that the accused did the act or made the omission charged against him.

4

If as respects that charge or any of those charges the court is not so satisfied, the court shall find the accused not guilty as if on the charge in question the trial had proceeded to a conclusion.

5

Where the question of fitness to stand trial was determined after arraignment of the accused, the determination under subsection (2) above shall be made by the court-martial by whom he was being tried.

Findings of insanity

116Findings of insanity

1

Where, on the trial of a person by court-martial, the court is satisfied, as respects the charge or any of the charges on which he is being tried, that the accused did the act or made the omission charged against him as the offence but that at the time of that act or omission he was insane, the court shall find that the accused was not guilty of that offence by reason of insanity.

2

No finding under subsection (1) above shall be made except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.

Powers to deal with person unfit to stand trial or not guilty by reason of insanity

116APowers to deal with person unfit to stand trial or not guilty by reason of insanity

1

This section applies where, on a trial of a person by a court-martial—

a

the accused is found to be unfit to stand trial and to have done the act or made the omission charged against him; or

b

the accused is found not guilty by reason of insanity.

2

The court shall make in respect of the accused—

a

a hospital order (with or without a restriction order);

b

a supervision order; or

c

an order for his absolute discharge.

3

Where—

a

the offence to which the finding relates is an offence the sentence for which is fixed by law, and

b

the court has power to make a hospital order,

the court shall make a hospital order with a restriction order (whether or not it would have power to make a restriction order apart from this subsection).

4

The functions of the court under this section shall be exercised by the judge advocate (or, where subsection (5) below applies, the judicial officer) sitting alone, and section 95(2) and (3) above shall not apply.

5

Any function of the court under this section exercisable after an adjournment or an appeal shall be exercisable by a judicial officer if—

a

the court ordering the adjournment, or (as the case may be) the Courts-Martial Appeal Court, so orders; or

b

the Judge Advocate General so directs.

6

In this Act—

  • “hospital order” has the meaning given in section 37 of the Mental Health Act 1983;

  • “restriction order” has the meaning given to it by section 41 of that Act;

  • “supervision order” means an order which requires the person in respect of whom it is made (“the supervised person”) to be under the supervision of a person (“the supervising officer”) for a period specified in the order of not more than two years.

Orders under the Mental Health Act

116BOrders under the Mental Health Act

1

In relation to the making of an order by virtue of subsection (2)(a) of section 116A above, section 37 (hospital orders etc) of the Mental Health Act 1983 (“the 1983 Act”) shall have effect as if—

a

the reference in subsection (1) to a person being convicted before the Crown Court included a reference to the case where section 116A above applies;

b

the words after “punishable with imprisonment” and before “or is convicted” were omitted; and

c

for subsections (4) and (5) there were substituted—

4

Where an order is made under this section requiring a person to be admitted to a hospital (“a hospital order”), it shall be the duty of the managers of the hospital specified in the order to admit him in accordance with it.

2

In relation to a case where section 116A above applies but the court has not yet made one of the disposals mentioned in subsection (2) of that section—

a

section 35 of the 1983 Act (remand to hospital for report on accused’s mental condition) shall have effect with the omission of the words after paragraph (b) in subsection (3);

b

section 36 of that Act (remand of accused person to hospital for treatment) shall have effect with the omission of the words “(other than an offence the sentence for which is fixed by law)” in subsection (2);

c

references in sections 35 and 36 of that Act to an accused person shall be construed as including a person in whose case this subsection applies; and

d

section 38 of that Act (interim hospital orders) shall have effect as if—

i

the reference in subsection (1) to a person being convicted before the Crown Court included a reference to the case where section 116A above applies; and

ii

the words “(other than an offence the sentence for which is fixed by law)” in that subsection were omitted.

3

In relation to the making of any order under the 1983 Act by virtue of this Act, that Act shall apply—

a

as if references to the Crown Court were references to a court-martial;

b

as if references to an offender were references to a person in whose case section 116A above applies (references to an offence being construed accordingly); and

c

with such further modifications as may be prescribed.

4

The Secretary of State may by regulations make provision with respect to the admission to, detention in, and release from, hospital of any person in respect of whom an order is made under the 1983 Act by virtue of this Act.

Regulations under this subsection may in particular make provision for a person in respect of whom such an order has been made to be conveyed to, and detained in, a place of safety pending his admission to hospital.

5

Where—

a

a person is detained in pursuance of a hospital order which the court had power to make by virtue of section 116A(1)(a) above, and

b

the court also made a restriction order, and that order has not ceased to have effect,

the Secretary of State, if satisfied after consultation with the responsible medical officer that the person can properly be tried, may either remit the person for trial before a court-martial or direct that he be tried before a civil court.

In this subsection “responsible medical officer” means the registered medical practitioner in charge of the person’s treatment.

6

The Secretary of State may by regulations make provision supplementing subsection (5) above, including in particular—

a

provision for a person in whose case that subsection applies to be conveyed to a court or place of detention and to be detained in such a place;

b

provision for the hospital order and the restriction order to cease to have effect at such time as may be prescribed.

Supervision orders

116CSupervision orders

1

The court shall not make an order under section 116A(2)(b) above unless it is satisfied—

a

that, having regard to all the circumstances of the case, the making of a supervision order is the most suitable means of dealing with the accused;

b

that the supervising officer intended to be specified in the order is willing to undertake the supervision; and

c

that arrangements have been made for any treatment which (under subsection (2) below) is intended to be specified in the order.

2

An order under section 116A(2)(b) above may, in accordance with regulations under subsection (3) below, require the supervised person to submit, during the whole of that period or such part of it as may be specified in the order, to treatment by or under the direction of a registered medical practitioner.

3

The Secretary of State may—

a

by order direct that the definition of “supervision order” in section 116A(6) above shall be amended by substituting, for the period for the time being specified there, such period as may be specified in the order under this subsection;

b

by regulations make further provision in relation to supervision orders.

4

Regulations under subsection (3) above may in particular make provision—

a

as to the procedure to be followed by a court-martial making a supervision order;

b

as the requirements which may be specified in such an order;

c

as to the descriptions of supervising officer who may be so specified;

d

for treatment to be provided at a place other than the place specified in the order in accordance with arrangements made by the medical practitioner by whom or under whose direction the supervised person is being treated;

e

for the amendment and revocation of any supervision order.

Provisions supplementary to sections 115A to 116C

116DProvisions supplementary to sections 115A to 116C

1

In this section and sections 115A to 116C above—

  • “duly approved” means approved for the purposes of section 12 of the Mental Health Act 1983 by the Secretary of State as having special experience in the diagnosis and treatment of mental disorder (within the meaning of that Act);

  • “prescribed” means prescribed by regulations made by the Secretary of State.

2

For the purposes of the provisions of sections 115A and 116 of this Act which permit a court to act on the written evidence of a registered medical practitioner or a registered medical practitioner who is duly approved, a report in writing purporting to be signed by a registered medical practitioner or a registered medical practitioner who is duly approved may, subject to subsection (3) below, be received in evidence without proof of the signature of the practitioner and without proof that he has the requisite qualifications or is duly approved; but the court may require the signatory of any such report to be called to give oral evidence.

3

Where, in pursuance of a direction of the court, any such report is tendered in evidence otherwise than by or on behalf of the accused, then—

a

if the accused is represented by counsel or a solicitor, a copy of the report shall be given to his counsel or solicitor;

b

if the accused is not so represented, the substance of the report shall be disclosed to him; and

c

the accused may require the signatory of the report to be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by the accused or on his behalf.

4

The power of the Secretary of State to make regulations under sections 116A to 116C above, and orders under section 116C(3) above, shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

2

In section 225(1) of the Army Act 1955 and in section 223(1) of the Air Force Act 1955 (general provisions as to interpretation) insert at the appropriate places—

“hospital order” has the meaning assigned to it by section 116A(6) of this Act;

“restriction order” has the meaning assigned to it by section 116A(6) of this Act;

“supervision order” has the meaning assigned to it by section 116A(6) of this Act;

Naval Discipline Act 1957 (c. 53)

3

For section 63 of the Naval Discipline Act 1957 (provisions where accused found insane) substitute—

Findings of unfitness to stand trial and insanity

62AFitness to stand trial

1

This section applies where on a trial by court-martial of a person the question arises (at the instance of the defence or otherwise) whether the accused is fit to stand trial.

2

For the purposes of this Act a person is unfit to stand trial if he is under a disability such that apart from the Criminal Procedure (Insanity) Act 1964 it would constitute a bar to his being tried on indictment in England and Wales.

3

If, having regard to the nature of the supposed disability, the judge advocate is of opinion that it is expedient to do so and in the interests of the accused, he may postpone consideration of the question of fitness to stand trial until any time up to the opening of the case for the defence.

4

If, before the question of fitness to stand trial falls to be determined, the court finds the accused not guilty on the charge or each of the charges on which he is being tried, that question shall not be determined.

5

Subject to subsections (3) and (4) above, the question of fitness to stand trial shall be determined as soon as it arises.

6

The question of fitness to stand trial shall be determined by the judge advocate sitting alone.

7

A judge advocate shall not make a determination under subsection (6) above except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.

62BFinding that the accused did the act or made the omission charged

1

This section applies where in accordance with section 62A(6) above it is determined by a judge advocate that the accused is unfit to stand trial.

2

The trial shall not proceed or further proceed but it shall be determined by the court—

a

on the evidence (if any) already given in the trial, and

b

on such evidence as may be adduced or further adduced by the prosecution, or adduced by a person appointed by the judge advocate under this section to put the case for the defence,

whether it is satisfied, as respects the charge or each of the charges on which the accused was to be or was being tried, that he did the act or made the omission charged against him as the offence.

3

If as respects that charge or any of those charges the court is satisfied as mentioned in subsection (2) above, it shall make a finding that the accused did the act or made the omission charged against him.

4

If as respects that charge or any of those charges the court is not so satisfied, the court shall find the accused not guilty as if on the charge in question the trial had proceeded to a conclusion.

5

Where the question of fitness to stand trial was determined after arraignment of the accused, the determination under subsection (2) above shall be made by the court-martial by whom he was being tried.

63Findings of insanity

1

Where, on the trial of a person by court-martial, the court is satisfied, as respects the charge or any of the charges on which he is being tried, that the accused did the act or made the omission charged against him as the offence but that at the time of that act or omission he was insane, the court shall find that the accused was not guilty of that offence by reason of insanity.

2

No finding under subsection (1) above shall be made except on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved.

63APowers to deal with person unfit to stand trial or not guilty by reason of insanity

1

This section applies where, on a trial of a person by a court-martial—

a

the accused is found to be unfit to stand trial and to have done the act or made the omission charged against him; or

b

the accused is found not guilty by reason of insanity.

2

The court shall make in respect of the accused—

a

a hospital order (with or without a restriction order);

b

a supervision order; or

c

an order for his absolute discharge.

3

Where—

a

the offence to which the finding relates is an offence the sentence for which is fixed by law, and

b

the court has power to make a hospital order,

the court shall make a hospital order with a restriction order (whether or not it would have power to make a restriction order apart from this subsection).

4

The functions of the court under this section shall be exercised by the judge advocate (or, where subsection (5) below applies, the judicial officer) sitting alone, and sections 56A(3) and 57 above shall not apply.

5

Any function of the court under this section exercisable after an adjournment or an appeal shall be exercisable by a judicial officer if—

a

the court ordering the adjournment, or (as the case may be) the Courts-Martial Appeal Court, so orders; or

b

the Judge Advocate of Her Majesty’s Fleet so directs.

6

In this Act—

  • “hospital order” has the meaning given in section 37 of the Mental Health Act 1983;

  • “restriction order” has the meaning given to it by section 41 of that Act;

  • “supervision order” means an order which requires the person in respect of whom it is made (“the supervised person”) to be under the supervision of a person (“the supervising officer”) for a period specified in the order of not more than two years.

63BOrders under the Mental Health Act

1

In relation to the making of an order by virtue of subsection (2)(a) of section 63A above, section 37 (hospital orders etc) of the Mental Health Act 1983 (“the 1983 Act”) shall have effect as if—

a

the reference in subsection (1) to a person being convicted before the Crown Court included a reference to the case where section 63A above applies;

b

the words after “punishable with imprisonment” and before “or is convicted” were omitted; and

c

for subsections (4) and (5) there were substituted—

4

Where an order is made under this section requiring a person to be admitted to a hospital (“a hospital order”), it shall be the duty of the managers of the hospital specified in the order to admit him in accordance with it.

2

In relation to a case where section 63A above applies but the court has not yet made one of the disposals mentioned in subsection (2) of that section—

a

section 35 of the 1983 Act (remand to hospital for report on accused’s mental condition) shall have effect with the omission of the words after paragraph (b) in subsection (3);

b

section 36 of that Act (remand of accused person to hospital for treatment) shall have effect with the omission of the words “(other than an offence the sentence for which is fixed by law)” in subsection (2);

c

references in sections 35 and 36 of that Act to an accused person shall be construed as including a person in whose case this subsection applies; and

d

section 38 of that Act (interim hospital orders) shall have effect as if—

i

the reference in subsection (1) to a person being convicted before the Crown Court included a reference to the case where section 63A above applies; and

ii

the words “(other than an offence the sentence for which is fixed by law)” in that subsection were omitted.

3

In relation to the making of any order under the 1983 Act by virtue of this Act, that Act shall apply—

a

as if references to the Crown Court were references to a court-martial;

b

as if references to an offender were references to a person in whose case section 63A above applies (references to an offence being construed accordingly); and

c

with such further modifications as may be prescribed.

4

The Secretary of State may by regulations make provision with respect to the admission to, detention in, and release from, hospital of any person in respect of whom an order is made under the 1983 Act by virtue of this Act.

Regulations under this subsection may in particular make provision for a person in respect of whom such an order has been made to be conveyed to, and detained in, a place of safety pending his admission to hospital.

5

Where—

a

a person is detained in pursuance of a hospital order which the court had power to make by virtue of section 63A(1)(a) above, and

b

the court also made a restriction order, and that order has not ceased to have effect,

the Secretary of State, if satisfied after consultation with the responsible medical officer that the person can properly be tried, may either remit the person for trial before a court-martial or direct that he be tried before a civil court.

In this subsection “responsible medical officer” means the registered medical practitioner in charge of the person’s treatment.

6

The Secretary of State may by regulations make provision supplementing subsection (5) above, including in particular—

a

provision for a person in whose case that subsection applies to be conveyed to a court or place of detention and to be detained in such a place;

b

provision for the hospital order and the restriction order to cease to have effect at such time as may be prescribed.

63CSupervision orders

1

The court shall not make an order under section 63A(2)(b) above unless it is satisfied—

a

that, having regard to all the circumstances of the case, the making of a supervision order is the most suitable means of dealing with the accused;

b

that the supervising officer intended to be specified in the order is willing to undertake the supervision; and

c

that arrangements have been made for any treatment which (under subsection (2) below) is intended to be specified in the order.

2

An order under section 63A(2)(b) above may, in accordance with regulations under subsection (3) below, require the supervised person to submit, during the whole of that period or such part of it as may be specified in the order, to treatment by or under the direction of a registered medical practitioner.

3

The Secretary of State may—

a

by order direct that the definition of “supervision order” in section 63A(6) above shall be amended by substituting, for the period for the time being specified there, such period as may be specified in the order under this subsection;

b

by regulations make further provision in relation to supervision orders.

4

Regulations under subsection (3) above may in particular make provision—

a

as to the procedure to be followed by a court-martial making a supervision order;

b

as the requirements which may be specified in such an order;

c

as to the descriptions of supervising officer who may be so specified;

d

for treatment to be provided at a place other than the place specified in the order in accordance with arrangements made by the medical practitioner by whom or under whose direction the supervised person is being treated;

e

for the amendment and revocation of any supervision order.

63DProvisions supplementary to sections 62A to 63C

1

In this section and sections 62A to 63C above—

  • “duly approved” means approved for the purposes of section 12 of the Mental Health Act 1983 by the Secretary of State as having special experience in the diagnosis and treatment of mental disorder (within the meaning of that Act);

  • “prescribed” means prescribed by regulations made by the Secretary of State.

2

For the purposes of the provisions of sections 62A and 63 of this Act which permit a court to act on the written evidence of a registered medical practitioner or a registered medical practitioner who is duly approved, a report in writing purporting to be signed by a registered medical practitioner or a registered medical practitioner who is duly approved may, subject to subsection (3) below, be received in evidence without proof of the signature of the practitioner and without proof that he has the requisite qualifications or is duly approved; but the court may require the signatory of any such report to be called to give oral evidence.

3

Where, in pursuance of a direction of the court, any such report is tendered in evidence otherwise than by or on behalf of the accused, then—

a

if the accused is represented by counsel or a solicitor, a copy of the report shall be given to his counsel or solicitor;

b

if the accused is not so represented, the substance of the report shall be disclosed to him; and

c

the accused may require the signatory of the report to be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by the accused or on his behalf.

4

The power of the Secretary of State to make regulations under sections 63A to 63C above, and orders under section 63C(3) above, shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament.

4

In the proviso to section 56(3) of that Act (court-martial not to be adjourned for more than six days), after “except with the consent of the accused and the prosecuting authority” insert “ , or for the purpose of exercising powers under section 63A of this Act, ”.

5

In section 135(1) of that Act (general provisions as to interpretation) insert at the appropriate places—

“hospital order” has the meaning assigned to it by section 63A(6) of this Act;

“restriction order” has the meaning assigned to it by section 63A(6) of this Act;

“supervision order” has the meaning assigned to it by section 63A(6) of this Act;

Courts-Martial (Appeals) Act 1968 (c. 20)

6

The Courts-Martial (Appeals) Act 1968 is amended as follows.

7

For section 16 substitute—

16Substitution of finding of insanity or findings of unfitness to stand trial etc.

1

This section applies where, on an appeal against conviction, the Appeal Court, on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of opinion—

a

that the proper finding would have been one of not guilty by reason of insanity; or

b

that the case is not one where there should have been a finding of not guilty, but that there should have been findings that the accused was unfit to stand trial and that he did the act or made the omission charged against him.

2

The Appeal Court shall make in respect of the appellant—

a

a hospital order (with or without a restriction order);

b

a supervision order; or

c

an order for his absolute discharge.

3

Where—

a

the offence to which the appeal relates is an offence the sentence for which is fixed by law, and

b

the Appeal Court have power to make a hospital order,

the Appeal Court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).

4

The provisions of, or made under, the sections specified below shall apply (with any necessary modifications) in relation to the Appeal Court as they apply in relation to a court-martial.

The sections are—

c

where the relevant Service Act is the Army Act, sections 116B to 116D of that Act;

d

where the relevant Service Act is the Air Force Act, sections 116B to 116D of that Act;

e

where the relevant Service Act is the Naval Discipline Act, sections 63B to 63D of that Act.

5

Where the Appeal Court 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 a judicial officer and not by the Appeal Court; and

b

section 38(7) of the Mental Health Act 1983 (absconding offenders) shall have effect as if the reference to the court that made the order were a reference to a judicial officer.

6

Where the Appeal Court make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable by a judicial officer and not by the Appeal Court.

8

In section 21 (appeal against finding of not guilty by reason of insanity), in subsection (1), after “except” insert “ section 8(2) and ”.

9

In section 22 (consequences where appeal under section 21 allowed), at the beginning of subsection (4) insert “Subject to section 23 below,”.

10

For section 23 substitute—

23Substitution of findings of unfitness to stand trial etc.

1

This section applies where, on an appeal under section 21 of this Act, the Appeal Court, on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of opinion that—

a

the case is not one where there should have been a finding of not guilty; but

b

there should have been findings that the accused was unfit to stand trial and that he did the act or made the omission charged against him.

2

The Appeal Court shall make in respect of the appellant—

a

a hospital order (with or without a restriction order);

b

a supervision order; or

c

an order for his absolute discharge.

3

Where—

a

the offence to which the appeal relates is an offence the sentence for which is fixed by law, and

b

the Appeal Court have power to make a hospital order,

the Appeal Court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).

4

The provisions of, or made under, the sections specified below shall apply (with any necessary modifications) in relation to the Appeal Court as they apply in relation to a court-martial.

The sections are—

c

where the relevant Service Act is the Army Act, sections 116B to 116D of that Act;

d

where the relevant Service Act is the Air Force Act, sections 116B to 116D of that Act;

e

where the relevant Service Act is the Naval Discipline Act, sections 63B to 63D of that Act.

5

Where the Appeal Court 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 a judicial officer and not by the Appeal Court; and

b

section 38(7) of the Mental Health Act 1983 (absconding offenders) shall have effect as if the reference to the court that made the order were a reference to a judicial officer.

6

Where the Appeal Court make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable by a judicial officer and not by the Appeal Court.

11

1

Section 24 (appeal against finding of unfitness to stand trial) is amended as follows.

2

In subsection (1)—

a

for “his trial” substitute “ trial and to have done the act or made the omission charged against him ”;

b

for “the finding” substitute “ either or both of those findings ”.

3

In subsection (2), after “except” insert “ section 8(2) and ”.

12

For section 25 substitute—

25Disposal of appeal under s. 24

1

This section applies to appeals under section 24 of this Act.

2

Where the Appeal Court allow an appeal against a finding that the appellant is unfit to stand trial—

a

the appellant may be tried accordingly for the offence with which he was charged; and

b

the Court may make such orders as appear to them necessary or expedient pending any such trial for the custody, release or continued detention of the appellant.

3

Where, otherwise than in a case falling within subsection (2) above, the Appeal Court allow an appeal against a finding that the appellant did the act or made the omission charged against him, the Court shall, in addition to quashing the finding, direct a finding of not guilty to be recorded (but not a finding of not guilty by reason of insanity).

13

After that section insert—

Appeal against order made in cases of insanity or unfitness to stand trial

Right of appeal against hospital order etc.

25ARight of appeal against hospital order etc.

1

A person in whose case a court-martial—

a

makes a hospital order or interim hospital order by virtue of the relevant Service Act, or

b

makes a supervision order under the relevant Service Act,

may appeal to the Appeal Court against the order.

2

An appeal under this section lies only with the leave of the Appeal Court.

Disposal of appeal under s. 25A

25BDisposal of appeal under s. 25A

1

If on an appeal under section 25A of this Act the Appeal Court consider that the appellant should be dealt with differently from the way in which the court below dealt with him—

a

they may quash any order which is the subject of the appeal; and

b

they may make such order, whether by substitution for the original order or by variation of or addition to it, as they think appropriate for the case and as the court below had power to make.

2

The fact that an appeal is pending against an interim hospital order under the Mental Health Act 1983 shall not affect the power of the court below to renew or terminate the order or deal with the appellant on its termination.

3

Where the Appeal Court 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 a judicial officer and not by the Appeal Court; and

b

section 38(7) of the said Act of 1983 (absconding offenders) shall have effect as if the reference to the court that made the order were a reference to a judicial officer.

4

The fact that an appeal is pending against a supervision order under the relevant Service Act shall not affect any power conferred on any other court to revoke or amend the order.

5

Where the Appeal Court make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable by a judicial officer and not by the Appeal Court.

14

1

Section 57 (interpretation) is amended as follows.

2

In subsection (1) insert at the relevant places—

“duly approved” means approved for the purposes of section 12 of the Mental Health Act 1983 by the Secretary of State as having special experience in the diagnosis and treatment of mental disorder (within the meaning of that Act);

“hospital order” has the meaning given in section 37 of the Mental Health Act 1983;

“interim hospital order” has the meaning given in section 38 of that Act;

“judicial officer” has the same meaning as in the relevant Service Act;

“restriction order” has the meaning given to it by section 41 of the Mental Health Act 1983;

“supervision order” means an order which requires the person in respect of whom it is made to be under the supervision of another person for a period specified in the order of not more than two years.

3

After subsection (2) insert—

2A

For the purposes of the provisions of sections 16 and 23 of this Act which permit the Appeal Court to act on the written evidence of a registered medical practitioner or a registered medical practitioner who is duly approved, a report in writing purporting to be signed by a registered medical practitioner or a registered medical practitioner who is duly approved may, subject to subsection (2B) below, be received in evidence without proof of the signature of the practitioner and without proof that he has the requisite qualifications or is duly approved; but the Appeal Court may require the signatory of any such report to be called to give oral evidence.

2B

Where, in pursuance of a direction of the Appeal Court, any such report is tendered in evidence otherwise than by or on behalf of the appellant, then—

a

if the appellant is represented by counsel or a solicitor, a copy of the report shall be given to his counsel or solicitor;

b

if the appellant is not so represented, the substance of the report shall be disclosed to him; and

c

the appellant may require the signatory of the report to be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by the appellant or on his behalf.

15

1

Schedule 3 (modifications in relation to prisoners of war) is amended as follows.

2

In paragraph 3—

a

in paragraph (a), for “or 15” substitute “ , 14A, 15 or 25A ”;

b

omit paragraph (b).

3

After paragraph 3 insert—

3A

In relation to a protected prisoner of war, sections 16 and 23 of this Act shall each have effect as if the following subsection were substituted for subsection (4)—

4

The provisions of a Royal Warrant shall apply (with any necessary modifications) in relation to the Appeal Court as they apply in relation to a court-martial.

SCHEDULE 4Powers of authorised officers executing warrants

Section 27

The following is the Schedule inserted after Schedule 4 to the Magistrates' Courts Act 1980 (c. 43)—

SCHEDULE 4APowers of authorised officers executing warrants

Section 125BA

Meaning of “authorised officer” etc

1

In this Schedule—

  • “authorised officer”, in relation to a warrant, means a person who is entitled to execute the warrant by virtue of—

    1. a

      section 125A of this Act (civilian enforcement officers); or

    2. b

      section 125B of this Act (approved enforcement agencies);

  • “premises” includes any place and, in particular, includes—

    1. a

      any vehicle, vessel, aircraft or hovercraft;

    2. b

      any offshore installation within the meaning of the Mineral Workings (Offshore Installations) Act 1971; and

    3. c

      any tent or movable structure.

Entry to execute warrant of arrest etc

2

1

An authorised officer may enter and search any premises for the purpose of executing a warrant of arrest, commitment or detention issued in proceedings for or in connection with any criminal offence.

2

The power may be exercised—

a

only to the extent that it is reasonably required for that purpose; and

b

only if the officer has reasonable grounds for believing that the person whom he is seeking is on the premises.

3

In relation to premises consisting of two or more separate dwellings, the power is limited to entering and searching—

a

any parts of the premises which the occupiers of any dwelling comprised in the premises use in common with the occupiers of any other such dwelling; and

b

any such dwelling in which the officer has reasonable grounds for believing that the person whom he is seeking may be.

Entry to levy distress

3

1

An authorised officer may enter and search any premises for the purpose of executing a warrant of distress issued under section 76 of this Act for default in paying a sum adjudged to be paid by a conviction.

2

The power may be exercised only to the extent that it is reasonably required for that purpose.

Searching arrested persons

4

1

This paragraph applies where a person is arrested in pursuance of a warrant of arrest, commitment or detention issued in proceedings for or in connection with any criminal offence.

2

An authorised officer may search the arrested person, if he has reasonable grounds for believing that the arrested person may present a danger to himself or others.

3

An authorised officer may also search the arrested person for anything which he might use to assist him to escape from lawful custody.

4

The power conferred by sub-paragraph (3) above may be exercised—

a

only if the officer has reasonable grounds for believing that the arrested person may have concealed on him anything of a kind mentioned in that sub-paragraph; and

b

only to the extent that it is reasonably required for the purpose of discovering any such thing.

5

The powers conferred by this paragraph to search a person are not to be read as authorising the officer to require a person to remove any of his clothing in public other than an outer coat, a jacket or gloves; but they do authorise the search of a person’s mouth.

6

An officer searching a person under sub-paragraph (2) above may seize and retain anything he finds, if the officer has reasonable grounds for believing that the person searched might use it to cause physical injury to himself or to any other person.

7

An officer searching a person under sub-paragraph (3) above may seize and retain anything he finds, if he has reasonable grounds for believing that the person might use it to assist him to escape from lawful custody.

Use of force

5

An authorised officer may use reasonable force, if necessary, in the exercise of a power conferred on him by this Schedule.

SCHEDULE 5Procedure on breach of community penalty etc

Section 29

Interpretation

1

In this Schedule—

  • “the Sentencing Act” means the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6);

  • “the 2003 Act” means the Criminal Justice Act 2003 (c. 44).

Detention and training orders

2

1

Section 104 of the Sentencing Act (breach of supervision requirements of detention and training order) is amended as follows.

2

In subsection (1) (issue of summons or warrant by justice of the peace)—

a

omit the words “ F26acting in a relevant local justice area”;

b

in paragraph (a), omit the words “before a youth court F27acting in the area”;

c

in paragraph (b), omit the words “requiring him to be brought before such a court”.

3

For subsection (2) substitute—

2

Any summons or warrant issued under this section shall direct the offender to appear or be brought—

a

before a youth court F28acting in the local justice in which the offender resides; or

b

if it is not known where the offender resides, before a youth court F29acting in the same local justice area as the justice who issued the summons or warrant.

Suspended sentence supervision orders

3

1

Section 123 of the Sentencing Act (breach of requirement of suspended sentence supervision order) is amended as follows.

2

In subsection (1) (issue of summons or warrant by justice of the peace) omit the words “acting for the F30local justice area for the time being specified in the order”.

3

For subsection (2) substitute—

2

Any summons or warrant issued under this section shall direct the offender to appear or be brought—

a

before a magistrates' court for the F31local justice area in which the offender resides; or

b

if it is not known where the offender resides, before a magistrates' court F32acting in the local justice area for the time being specified in the suspended sentence supervision order.

4

After subsection (4) insert—

5

Where a magistrates' court dealing with an offender under this section would not otherwise have the power to amend the suspended sentence supervision order under section 124(3) below (amendment by reason of change of residence), that provision has effect as if the reference to a magistrates' court F33acting in the local justice area for the time being specified in the suspended sentence supervision order were a reference to the court dealing with the offender.

Community orders under the Sentencing Act

4

1

Schedule 3 to the Sentencing Act (breach, revocation and amendment of certain community orders), as it has effect on the day on which this Act is passed, is amended as follows.

2

In paragraph 3(1) (issue of summons or warrant by justice of the peace) omit the words “ F34acting in the local justice area concerned”.

3

In paragraph 3(2) (court before which offender to appear or be brought), for paragraph (c) substitute—

c

in the case of a relevant order which is not an order to which paragraph (a) or (b) applies, before a magistrates' court F34acting in the local justice area in which the offender resides or, if it is not known where he resides, before a magistrates' court F34acting in the local justice area concerned.

4

In paragraph 4 (powers of magistrates' court to deal with breach), after sub-paragraph (3) insert—

3A

Where a magistrates' court dealing with an offender under sub-paragraph (1)(a), (b) or (c) above would not otherwise have the power to amend the relevant order under paragraph 18 below (amendment by reason of change of residence), that paragraph has effect as if the reference to a magistrates' court F34acting in the local justice area concerned were a reference to the court dealing with the offender.

Curfew orders and exclusion orders

5

1

Schedule 3 to the Sentencing Act (breach, revocation and amendment of curfew orders and exclusion orders), as substituted by paragraph 125 of Schedule 32 to the 2003 Act, is amended as follows.

2

In paragraph 3(1) (issue of summons or warrant by justice of the peace) omit the words “ F35acting in the local justice area concerned”.

3

In paragraph 3(2) (court before which offender to appear or be brought), for paragraph (b) substitute—

b

in the case of a relevant order which is not an order to which paragraph (a) above applies, before a magistrates' court F35acting in the local justice area in which the offender resides or, if it is not known where he resides, before a magistrates' court F35acting in the local justice area concerned.

4

In paragraph 4 (powers of magistrates' court to deal with breach), after sub-paragraph (4) insert—

4A

Where a magistrates' court dealing with an offender under sub-paragraph (2)(a) or (b) above would not otherwise have the power to amend the relevant order under paragraph 15 below (amendment by reason of change of residence), that paragraph has effect as if the reference to a magistrates' court F35acting in the local justice area concerned were a reference to the court dealing with the offender.

Attendance centre orders

6

1

Schedule 5 to the Sentencing Act (breach, revocation and amendment of attendance centre orders) is amended as follows.

2

In paragraph 1(1) (issue of summons or warrant by justice of the peace), omit the words—

a

“acting for a relevant F36local justice area”;

b

“before a magistrates' court F37acting in the area”;

c

“requiring him to be brought before such a court”.

3

For paragraph 1(2) substitute—

2

Any summons or warrant issued under this paragraph shall direct the offender to appear or be brought—

a

before a magistrates' court F38acting in the local justice area in which the offender resides; or

b

if it is not known where the offender resides, before a magistrates' court F38acting in the local justice area in which is situated the attendance centre which the offender is required to attend by the order or by virtue of an order under paragraph 5(1)(b) below.

4

In paragraph 2 (powers of magistrates' court to deal with breach), after sub-paragraph (5) insert—

5A

Where a magistrates' court dealing with an offender under sub-paragraph (1)(a) above would not otherwise have the power to amend the order under paragraph 5(1)(b) below (substitution of different attendance centre), that paragraph has effect as if references to an appropriate magistrates' court were references to the court dealing with the offender.

Community orders under the 2003 Act

7

1

Schedule 8 to the 2003 Act (breach, revocation or amendment of community order) is amended as follows.

2

In paragraph 7(2)(issue of summons or warrant by justice of the peace) omit the words “ F39acting in the local justice area concerned”.

3

In paragraph 7(3) (court before which offender to appear or be brought), for paragraph (b) substitute—

b

in any other case, before a magistrates' court F39acting in the local justice area in which the offender resides or, if it is not known where he resides, before a magistrates' court F39acting in the local justice area concerned.

4

In paragraph 9 (powers of magistrates' court to deal with breach), after sub-paragraph (5) insert—

5A

Where a magistrates' court dealing with an offender under sub-paragraph (1)(a) would not otherwise have the power to amend the community order under paragraph 16 (amendment by reason of change of residence), that paragraph has effect as if the references to the appropriate court were references to the court dealing with the offender.

5

In paragraph 27 (provision of copies of orders), at the end of sub-paragraph (1)(c) insert

, and

d

where the court F40acts in a local justice area other than the one specified in the order prior to the revocation or amendment, provide a copy of the revoking or amending order to a magistrates' court F41acting in the area so specified.

Suspended sentence orders under the 2003 Act

8

1

Schedule 12 to the 2003 Act (breach or amendment of suspended sentence order, and effect of further conviction) is amended as follows.

2

In paragraph 6(2)(issue of summons or warrant by justice of the peace) omit the words “ F42acting in the local justice area concerned”.

3

In paragraph 6(3) (court before which offender to appear or be brought), for paragraph (b) substitute—

b

in any other case, before a magistrates' court F42acting in the local justice area in which the offender resides or, if it is not known where he resides, before a magistrates' court F42acting in the local justice area concerned.

4

In paragraph 8 (powers of magistrates' court to deal with breach), after sub-paragraph (4) insert—

4A

Where a magistrates' court dealing with an offender under sub-paragraph (2)(c) would not otherwise have the power to amend the suspended sentence order under paragraph 14 (amendment by reason of change of residence), that paragraph has effect as if the references to the appropriate court were references to the court dealing with the offender.

5

In paragraph 22 (provision of copies of orders), at the end of sub-paragraph (1)(c) insert

, and

d

where the court F43acts in a local justice area other than the one specified in the order prior to the revocation or amendment, provide a copy of the revoking or amending order to a magistrates' court F44acting in the area so specified.

9

In Schedule 13 to the 2003 Act (transfer of suspended sentence orders to Scotland or Northern Ireland), in paragraph 12 (modifications of Schedule 12), after sub-paragraph (5) insert—

5A

In paragraph 6(3)(b), the words “before a magistrates' court F45acting in the local justice area in which the offender resides or, if it is not known where he resides,” are omitted.

Local justice areas

10

The power conferred by section 109(5)(b) of the Courts Act 2003 (c. 39) to amend or repeal any enactment, other than one contained in an Act passed in a later session, includes power to amend any such enactment as amended by this Schedule, but only for the purpose of making consequential provision in connection with the establishment of local justice areas under section 8 of that Act.

SCHEDULE 6Intermittent custody

Section 31

1

The Criminal Justice Act 2003 (c. 44) is amended as follows.

2

In section 244 (duty to release prisoners), in subsection (3)—

a

in paragraph (c), for the words from “which is not” to “section 183(3)” substitute “ which for the purposes of section 183 (as read with section 263(2) or 264A(2) in the case of concurrent or consecutive sentences) is not a licence period ”;

b

in paragraph (d), after “consecutive sentences” insert “ none of which falls within paragraph (c) ”.

3

In section 246 (power to release prisoners on licence before required to do so), in the definition of “the required custodial days” in subsection (6)—

a

in paragraph (b), after “custody” insert “ which are consecutive ”;

b

at the end of that paragraph insert

, or

c

in the case of two or more sentences of intermittent custody which are wholly or partly concurrent, the aggregate of the numbers so specified less the number of days that are to be served concurrently;

4

In section 249 (duration of licence), at the end of subsection (3) insert “ and subsection (2) has effect subject to section 264A(3) (consecutive terms: intermittent custody ”.

5

In section 250 (licence conditions), in subsection (7), for “and section 264(3) and (4) (consecutive terms)” substitute “ , section 264(3) and (4) (consecutive terms) and section 264A(3) (consecutive terms: intermittent custody) ”.

6

In section 264 (consecutive terms), in subsection (1), after paragraph (b) insert

, and

c

none of those terms is a term to which an intermittent custody order relates.

7

After that section insert—

264AConsecutive terms: intermittent custody

1

This section applies where—

a

a person (“the offender”) has been sentenced to two or more terms of imprisonment which are to be served consecutively on each other,

b

the sentences were passed on the same occasion or, where they were passed on different occasions, the person has not been released under this Chapter at any time during the period beginning with the first and ending with the last of those occasions, and

c

each of the terms is a term to which an intermittent custody order relates.

2

The offender is not to be treated as having served all the required custodial days in relation to any of the terms of imprisonment until he has served the aggregate of all the required custodial days in relation to each of them.

3

After the number of days served by the offender in prison is equal to the aggregate of the required custodial days in relation to each of the terms of imprisonment, the offender is to be on licence until the relevant time and subject to such conditions as are required by this Chapter in respect of any of the terms of imprisonment, and none of the terms is to be regarded for any purpose as continuing after the relevant time.

4

In subsection (3) “the relevant time” means the time when the offender would, but for his release, have served a term equal in length to the aggregate of—

a

all the required custodial days in relation to the terms of imprisonment, and

b

the longest of the total licence periods in relation to those terms.

5

In this section—

  • “total licence period”, in relation to a term of imprisonment to which an intermittent custody order relates, means a period equal in length to the aggregate of all the licence periods as defined by section 183 in relation to that term;

  • “the required custodial days”, in relation to such a term, means the number of days specified under that section.

SCHEDULE 7Investigations by Parliamentary Commissioner

Section 47

1

The Parliamentary Commissioner Act 1967 (c. 13) is amended as follows.

2

1

Section 5 (matters subject to investigation) is amended as follows.

2

After subsection (1) insert—

1A

Subsection (1C) of this section applies if—

a

a written complaint is duly made to a member of the House of Commons by a member of the public who claims that a person has failed to perform a relevant duty owed by him to the member of the public, and

b

the complaint is referred to the Commissioner, with the consent of the person who made it, by a member of the House of Commons with a request to conduct an investigation into it.

1B

For the purposes of subsection (1A) of this section a relevant duty is a duty imposed by any of these—

a

a code of practice issued under section 32 of the Domestic Violence, Crime and Victims Act 2004 (code of practice for victims), or

b

sections 35 to 44 of that Act (duties of local probation boards in connection with victims of sexual or violent offences).

1C

If this subsection applies, the Commissioner may investigate the complaint.

3

In subsection (3) for “investigation under this Act” substitute “ investigation under subsection (1) of this section ”.

4

After subsection (4) insert—

4A

Without prejudice to subsection (2) of this section, the Commissioner shall not conduct an investigation pursuant to a complaint under subsection (1A) of this section in respect of—

a

action taken by or with the authority of the Secretary of State for the purposes of protecting the security of the State, including action so taken with respect to passports, or

b

any action or matter described in any of paragraphs 1 to 4 and 6A to 11 of Schedule 3 to this Act.

4B

Her Majesty may by Order in Council amend subsection (4A) of this section so as to exclude from paragraph (a) or (b) of that subsection such actions or matters as may be described in the Order.

4C

Any statutory instrument made by virtue of subsection (4B) of this section shall be subject to annulment in pursuance of a resolution of either House of Parliament.

3

1

Section 7 (procedure in respect of investigations) is amended as follows.

2

In subsection (1) after “complaint under” insert “ section 5(1) of ”.

3

After subsection (1) insert—

1A

Where the Commissioner proposes to conduct an investigation pursuant to a complaint under section 5(1A) of this Act, he shall give the person to whom the complaint relates an opportunity to comment on any allegations contained in the complaint.

4

In subsection (2) for “such investigation” substitute “ investigation under this Act ”.

5

In subsection (4)—

a

after “authority concerned” insert “ or the person to whom the complaint relates ”;

b

for “that department or authority” substitute “ that department, authority or person ”.

4

1

Section 8 (evidence) is amended as follows.

2

In subsection (1) after “investigation under” insert “ section 5(1) of ”.

3

After subsection (1) insert—

1A

For the purposes of an investigation pursuant to a complaint under section 5(1A) of this Act the Commissioner may require any person who in his opinion is able to furnish information or produce documents relevant to the investigation to furnish any such information or produce any such document.

4

In subsection (2) for “such investigation” substitute “ investigation under this Act ”.

5

1

Section 10 (reports by Commissioner) is amended as follows.

2

In subsection (2), after “investigation under” insert “ section 5(1) of ”.

3

After subsection (2) insert—

2A

In any case where the Commissioner conducts an investigation pursuant to a complaint under section 5(1A) of this Act, he shall also send a report of the results of the investigation to the person to whom the complaint relates.

4

In subsection (3) after “investigation under” insert “ section 5(1) of ”.

5

After subsection (3) insert—

3A

If, after conducting an investigation pursuant to a complaint under section 5(1A) of this Act, it appears to the Commissioner that—

a

the person to whom the complaint relates has failed to perform a relevant duty owed by him to the person aggrieved, and

b

the failure has not been, or will not be, remedied,

the Commissioner may, if he thinks fit, lay before each House of Parliament a special report upon the case.

3B

For the purposes of subsection (3A) of this section “relevant duty” has the meaning given by section 5(1B) of this Act.

6

In subsection (5)(d) after “subsection (2)” insert “ or (2A) ”.

6

In section 12(1) (interpretation) for the definition of “person aggrieved” substitute—

“person aggrieved”—

a

in relation to a complaint under section 5(1) of this Act, means the person who claims or is alleged to have sustained such injustice as is mentioned in section 5(1)(a) of this Act;

b

in relation to a complaint under section 5(1A) of this Act, means the person to whom the duty referred to in section 5(1A)(a) of this Act is or is alleged to be owed;

SCHEDULE 8Commissioner for Victims and Witnesses

Section 48

Deputy Commissioner

C161

1

The Secretary of State F55for Justice must appoint a Deputy Commissioner for Victims and Witnesses (referred to in this Schedule as the Deputy Commissioner).

2

Before appointing the Deputy Commissioner the Secretary of State F55for Justice must consult the Attorney General and the F56Secretary of State for the Home Department as to the person to be appointed.

3

The Deputy Commissioner must act as the Commissioner—

a

during any period when the office of Commissioner is vacant;

b

at any time when the Commissioner is absent or is unable to act.

4

The Deputy Commissioner is not to be regarded—

a

as the servant or agent of the Crown, or

b

as enjoying any status, immunity or privilege of the Crown.

1

1

The Secretary of State must appoint a Deputy Commissioner for Victims and Witnesses (referred to in this Schedule as the Deputy Commissioner).

2

Before appointing the Deputy Commissioner the Secretary of State must consult the Attorney General and the Lord Chancellor as to the person to be appointed.

3

The Deputy Commissioner must act as the Commissioner—

a

during any period when the office of Commissioner is vacant;

b

at any time when the Commissioner is absent or is unable to act.

4

The Deputy Commissioner is not to be regarded—

a

as the servant or agent of the Crown, or

b

as enjoying any status, immunity or privilege of the Crown.

Terms of appointment

C172

1

This paragraph applies in relation to a person appointed as the Commissioner or the Deputy Commissioner.

2

The period for which the person is appointed must not exceed 5 years.

3

Subject to sub-paragraph (4), the person is eligible for re-appointment.

4

The person must not hold office for more than 10 years in total.

5

The person may at any time resign from office by giving notice in writing to the Secretary of State F57for Justice.

6

The Secretary of State F57for Justice may at any time remove the person from office if he is satisfied that the person—

a

has become bankrupt, has had his estate sequestrated or has made a composition or arrangement with, or granted a trust deed for, his creditors, or

b

is otherwise unable or unfit to carry out his functions.

7

The Secretary of State F57for Justice must consult the Attorney General and the F58Secretary of State for the Home Department before removing the person from office.

8

Subject to sub-paragraphs (2) to (7), the person holds office on the terms specified by the Secretary of State F57for Justice after consulting the Attorney General and the F58Secretary of State for the Home Department.

2

1

This paragraph applies in relation to a person appointed as the Commissioner or the Deputy Commissioner.

2

The period for which the person is appointed must not exceed 5 years.

3

Subject to sub-paragraph (4), the person is eligible for re-appointment.

4

The person must not hold office for more than 10 years in total.

5

The person may at any time resign from office by giving notice in writing to the Secretary of State.

6

The Secretary of State may at any time remove the person from office if he is satisfied that the person—

a

has become bankrupt, has had his estate sequestrated or has made a composition or arrangement with, or granted a trust deed for, his creditors, or

b

is otherwise unable or unfit to carry out his functions.

7

The Secretary of State must consult the Attorney General and the Lord Chancellor before removing the person from office.

8

Subject to sub-paragraphs (2) to (7), the person holds office on the terms specified by the Secretary of State after consulting the Attorney General and the Lord Chancellor.

Staff

3

1

The Commissioner may appoint such persons as members of his staff as he thinks fit.

2

The Commissioner must obtain the approval of the Secretary of State to—

a

the number of persons appointed as members of his staff, and

b

their terms and conditions of service.

3

No member of the staff of the Commissioner is to be regarded—

a

as the servant or agent of the Crown, or

b

as enjoying any status, immunity or privilege of the Crown.

Delegation

4

The Commissioner may authorise any member of his staff or the Deputy Commissioner to carry out any of his functions.

Pensions

5

1

Schedule 1 to the Superannuation Act 1972 (c. 11) (kinds of employment and offices to which a scheme under section 1 of that Act may apply) is amended as set out in sub-paragraphs (2) and (3).

2

At the end of the list headed “Other Bodies” insert— “ Employment as a member of the staff of the Commissioner for Victims and Witnesses. ”

3

In the list headed “Offices”, in the appropriate places, insert— “ Commissioner for Victims and Witnesses. ”“ Deputy Commissioner for Victims and Witnesses. ”

4

The Secretary of State must pay to the Minister for the Civil Service, at such times as the Minister for the Civil Service may direct, such sums as the Minister for the Civil Service may determine in respect of the increase attributable to sub-paragraphs (1) to (3) in the sums payable out of money provided by Parliament under the Superannuation Act 1972.

Finance

6

The Secretary of State must pay—

a

the remuneration of the Commissioner and the Deputy Commissioner;

b

such sums as he thinks fit in respect of the expenses of the Commissioner and the Deputy Commissioner.

Accounts

7

1

The Commissioner must—

a

keep proper accounts and proper records in relation to the accounts;

b

prepare a statement of accounts in respect of each financial year, in the form directed by the Secretary of State;

c

send copies of the statement to the Secretary of State and the Comptroller and Auditor General, not later than the 31 August following the end of the financial year to which it relates.

2

The Comptroller and Auditor General must—

a

examine, certify and report on the statement of accounts;

b

lay copies of the statement and of his report before Parliament.

Annual plan

C188

1

The Commissioner must, before the beginning of each financial year apart from the first, prepare a plan setting out how he intends to exercise his functions during the financial year (an annual plan).

2

In preparing the plan, the Commissioner must consider whether to deal in the plan with any issues specified by the Secretary of State F59for Justice.

3

The Commissioner must send a copy of the plan to the Secretary of State F59for Justice for his approval.

4

The Secretary of State F59for Justice must consult the Attorney General and the F60Secretary of State for the Home Department in deciding whether to approve the plan.

5

If the Secretary of State F59for Justice does not approve the plan—

a

he must give the Commissioner his reasons for not approving it, and

b

the Commissioner must revise the plan.

6

Sub-paragraphs (2) to (5) apply to a revised plan as they apply to the plan as first prepared.

8

1

The Commissioner must, before the beginning of each financial year apart from the first, prepare a plan setting out how he intends to exercise his functions during the financial year (an annual plan).

2

In preparing the plan, the Commissioner must consider whether to deal in the plan with any issues specified by the Secretary of State.

3

The Commissioner must send a copy of the plan to the Secretary of State for his approval.

4

The Secretary of State must consult the Attorney General and the Lord Chancellor in deciding whether to approve the plan.

5

If the Secretary of State does not approve the plan—

a

he must give the Commissioner his reasons for not approving it, and

b

the Commissioner must revise the plan.

6

Sub-paragraphs (2) to (5) apply to a revised plan as they apply to the plan as first prepared.

Annual report

C199

1

The Commissioner must, as soon as possible after the end of each financial year, prepare a report on how he has exercised his functions during the financial year.

2

The report for any financial year apart from the first must include—

a

the Commissioner’s annual plan for the financial year, and

b

an assessment of the extent to which the plan has been carried out.

3

The Commissioner must send a copy of the report to—

a

the Secretary of State F61for Justice,

b

the Attorney General, and

c

the F62Secretary of State for the Home Department.

4

The Secretary of State F61for Justice must—

a

lay a copy of the report before Parliament;

b

arrange for the report to be published.

9

1

The Commissioner must, as soon as possible after the end of each financial year, prepare a report on how he has exercised his functions during the financial year.

2

The report for any financial year apart from the first must include—

a

the Commissioner’s annual plan for the financial year, and

b

an assessment of the extent to which the plan has been carried out.

3

The Commissioner must send a copy of the report to—

a

the Secretary of State,

b

the Attorney General, and

c

the Lord Chancellor.

4

The Secretary of State must—

a

lay a copy of the report before Parliament;

b

arrange for the report to be published.

Disqualification Acts

10

1

In Part 3 of Schedule 1 to the House of Commons Disqualification Act 1975 (c. 24) (offices the holders of which are disqualified) at the appropriate places insert— “ Commissioner for Victims and Witnesses. ”“ Deputy Commissioner for Victims and Witnesses. ”

2

In Part 3 of Schedule 1 to the Northern Ireland Assembly Disqualification Act 1975 (c. 25) (offices the holders of which are disqualified) at the appropriate places insert— “ Commissioner for Victims and Witnesses. ”“ Deputy Commissioner for Victims and Witnesses. ”

Meaning of “financial year”

11

In this Schedule “financial year” means—

a

the period beginning on the day on which section 48 comes into force and ending on the next 31 March (which is the first financial year), and

b

each subsequent period of 12 months beginning on 1 April.

SCHEDULE 9Authorities within Commissioner’s remit

Section 53

Government departments

F461WA

The Department for Business, Innovation and Skills.

1XA

The Department for Business, Enterprise and Regulatory Reform.

1YA

The Department for Children, Schools and Families.

F471ZA

The Department for Communities and Local Government.

F481ZB

The Department for Education.

1

The Department for Constitutional Affairs.

2

The Department for Education and Skills.

3

The Department of Health.

3A. The Department for Innovation, Universities and Skills.

4

The Department of Trade and Industry.

5

The Department for Transport.

6

The Department for Work and Pensions.

7

The Foreign and Commonwealth Office.

8

The Home Office.

F498A

The Ministry of Justice.

9

The Office of the Deputy Prime Minister.

Customs and Excise

10

The Commissioners of Customs and Excise.

Police forces etc

11

A police force for a police area in England or Wales.

12

The Serious Fraud Office.

13

F50The Serious Organised Crime Agency.

F5114

The National Crime Squad.

15

The force of constables appointed under section 53 of the British Transport Commission Act 1949 (c. xxix).

16

The Ministry of Defence Police.

Criminal injuries compensation

17

The Criminal Injuries Compensation Appeals Panel.

18

The Criminal Injuries Compensation Authority.

Health and safety

19

The Health and Safety Commission.

20

The Health and Safety Executive.

Court administration

22

Persons exercising functions relating to the carrying on of the business of a court.

Criminal justice system

23

The Criminal Cases Review Commission.

24

The Crown Prosecution Service.

25

A local probation board established under section 4 of the Criminal Justice and Court Services Act 2000 (c. 43).

F5225A

A provider of probation services.

26

The Parole Board.

27

The Prison Service.

28

The Youth Justice Board for England and Wales.

29

A youth offending team established under section 39 of the Crime and Disorder Act 1998 (c. 37).

Maritime and coastguards

30

The Maritime and Coastguard Agency.

SCHEDULE 10Minor and consequential amendments

Section 58(1)

Colonial Prisoners Removal Act 1884 (c. 31)

1

In section 10 of the Colonial Prisoners Removal Act 1884 (application of Act to removal of criminal lunatics), in subsection (3), in paragraph (a) for the words from “give” to the end substitute “ by warrant direct that he is to be detained in such hospital, within the meaning given by section 145(1) of the Mental Health Act 1983, as may be specified in the direction; and any such direction shall have the same effect as a hospital order under section 37 of that Act together with a restriction order under section 41 of that Act, made without limitation of time; ”.

Children and Young Persons Act 1933 (c. 12)

2

In Schedule 1 to the Children and Young Persons Act 1933 (offences against children and young persons with respect to which special provisions of the Act apply), after “Infanticide” insert— “ An offence under section 5 of the Domestic Violence, Crime and Victims Act 2004, in respect of a child or young person. ”

Criminal Procedure (Insanity) Act 1964 (c. 84)

3

In section 8(2) of the Criminal Procedure (Insanity) Act 1964 (interpretation), after the definition of “duly approved” insert—

“local probation board” means a local probation board established under section 4 of the Criminal Justice and Court Services Act 2000;

Criminal Appeal Act 1968 (c. 19)

4

In section 15 of the Criminal Appeal Act 1968 (right of appeal against finding of disability), in subsection (1), for the words “the jury has returned” substitute “ there have been ”.

5

In section 37 of that Act (detention of defendant on appeal by the Crown to House of Lords), in subsection (4), for paragraph (b) substitute—

b

a hospital order made by virtue of section 5(2)(a) of the Criminal Procedure (Insanity) Act 1964 (powers to deal with persons not guilty by reason of insanity or unfit to plead etc),

6

In section 51 of that Act (interpretation), in subsection (2A), for “6, 14 or 14A” substitute “ 6 or 14 ”.

Children and Young Persons Act (Northern Ireland) 1968 (c. 34 (N.I.))

7

In Schedule 1 to the Children and Young Persons Act (Northern Ireland) 1968 (offences against children and young persons with respect to which special provisions of the Act apply), after “Infanticide” insert— “ An offence under section 5 of the Domestic Violence, Crime and Victims Act 2004, in respect of a child or young person. ”

Juries Act 1974 (c. 23)

8

1

Section 11 of the Juries Act 1974 (ballot and swearing of jurors) is amended as follows.

2

In subsection (5) omit paragraph (b).

3

In subsection (6) omit “, (b)”.

Rehabilitation of Offenders Act 1974 (c. 53)

9

In section 1(3) of the Rehabilitation of Offenders Act 1974 (meaning of “sentence” for the purposes of that Act), after “other than” insert—

za

a surcharge imposed under section 161A of the Criminal Justice Act 2003;

Magistrates' Courts Act 1980 (c. 43)

10

In section 108 of the Magistrates' Courts Act 1980 (right of appeal to Crown Court), after subsection (3) insert—

4

Subsection (3)(d) above does not prevent an appeal against a surcharge imposed under section 161A of the Criminal Justice Act 2003.

11

In section 139 of that Act (disposal of sums adjudged to be paid by conviction)—

a

after paragraph (a) insert—

aa

in the second place in payment to the fund mentioned in paragraph (c) below of surcharges imposed under section 161A of the Criminal Justice Act 2003;

b

in paragraph (b), for “second” substitute “ third ”.

Criminal Appeal (Northern Ireland) Act 1980 (c. 47)

12

In section 13A of the Criminal Appeal (Northern Ireland) Act 1980 (appeal against finding of unfitness to be tried), in subsection (1), for “the jury has returned” substitute “ there has been ”.

13

In section 19(1A)(a) of that Act (legal aid), after “appeal under” insert “ section 18A of the Domestic Violence, Crime and Victims Act 2004, ”.

Supreme Court Act 1981 (c. 54)

14

In section 55 of the Supreme Court Act 1981 (constitution of criminal division of Court of Appeal), in subsection (4)(a)(iii) omit the words “of a jury”.

15

In section 81 of that Act (power of Crown Court to grant bail), in subsection (1A), for “or 15” substitute “ , 15 or 16A ”.

Criminal Justice Act 1982 (c. 48)

16

In Schedule 1 to the Criminal Justice Act 1982 (offences excluded from early release provisions), in Part 2, after the entry relating to the Sexual Offences Act 2003 (c. 42) insert—

Domestic Violence, Crime and Victims Act 2004

 

Section 5 (causing or allowing the death of a child or vulnerable adult).

Representation of the People Act 1983 (c. 2)

17

In section 3A of the Representation of the People Act 1983 (disenfranchisement of offenders detained in mental hospitals), for subsection (5) substitute—

5

As respects any part of the United Kingdom, this section applies to any person in respect of whom a hospital order has been made by virtue of—

a

section 116A of the Army Act 1955 or the Air Force Act 1955 or section 63A of the Naval Discipline Act 1957, or

b

section 16 or 23 of the Courts-Martial (Appeals) Act 1968.

Mental Health Act 1983 (c. 20)

18

In section 47 of the Mental Health Act 1983 (removal to hospital of persons serving sentences of imprisonment, etc), in subsection (5)(a), for the words “under any enactment to which section 46 applies” substitute “ made in consequence of a finding of insanity or unfitness to stand trial ”.

19

In section 69 of that Act (application to tribunals concerning patients subject to hospital orders etc), in subsection (2)(a)—

a

for “below,” substitute “ below or ”;

b

omit “or section 5(1) of the Criminal Procedure (Insanity) Act 1964”.

20

In section 71 of that Act (references by Home Secretary concerning restricted patients) omit subsections (5) and (6).

21

In section 79 of that Act (interpretation of Part 5), in subsection (1)—

a

for paragraph (a) substitute—

a

is treated by virtue of any enactment as subject to a hospital order and a restriction order; or

b

omit paragraph (b).

22

In section 84 of that Act (removal to England and Wales of offenders found insane in Channel Islands and Isle of Man), in subsection (2), for the words from “had been” to the end substitute “ were subject to a hospital order together with a restriction order, made without limitation of time ”.

23

1

Schedule 5 to that Act (transitional and saving provisions) is amended as follows.

2

For paragraph 21 substitute—

21

Any direction to which section 71(4) of the Mental Health Act 1959 applied immediately before the commencement of this Act shall have the same effect as a hospital order together with a restriction order, made without limitation of time.

3

In paragraph 37(2), for “direction under section 46 of this Act” substitute “ hospital order together with a restriction order, made without limitation of time ”.

Police and Criminal Evidence Act 1984 (c. 60)

24

F53. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Prosecution of Offences Act 1985 (c. 23)

25

In section 16 of the Prosecution of Offences Act 1985 (defence costs), in subsection (4) (power of Court of Appeal to make defendant’s costs order), after paragraph (c) insert

or

d

allows, to any extent, an appeal under section 16A of that Act (appeal against order made in cases of insanity or unfitness to plead);

Coroners Act 1988 (c. 13)

26

In section 16 of the Coroners Act 1988 (adjournment of inquest in event of criminal proceedings), in subsection (1)(a), after sub-paragraph (iii) insert—

iv

an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult); or

27

In section 17 of that Act (coroner to be informed of result of criminal proceedings), in subsections (1) and (2), at the end of paragraph (c) insert

; or

d

an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult),

Criminal Justice Act 1988 (c. 33)

28

In section 41 of the Criminal Justice Act 1988 (power of Crown Court to deal with summary offence where person committed for either way offence), after subsection (4) insert—

4A

The committal of a person under this section in respect of an offence to which section 40 above applies shall not prevent him being found guilty of that offence under section 6(3) of the Criminal Law Act 1967 (alternative verdicts on trial on indictment); but where he is convicted under that provision of such an offence, the functions of the Crown Court under this section in relation to the offence shall cease.

Police and Criminal Evidence (Northern Ireland) Order 1989 (S.I. 1989/1341 (N.I. 12))

29

F54. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Criminal Justice Act 1991 (c. 53)

30

In section 24 of the Criminal Justice Act 1991 (recovery of fines etc by deductions from income support), after subsection (3) insert—

3A

This section applies in relation to a surcharge imposed under section 161A of the Criminal Justice Act 2003 as if any reference in subsection (1) or (3) above to a fine included a reference to a surcharge.

Criminal Appeal Act 1995 (c. 35)

31

In section 9 of the Criminal Appeal Act 1995 (references by Criminal Cases Review Commission to Court of Appeal), in subsection (6), for the words “a jury in England and Wales has returned” substitute “ in England and Wales there have been ”.

32

In section 10 of that Act (which makes equivalent provision for Northern Ireland), in subsection (7), for the words “a jury in Northern Ireland has returned” substitute “ in Northern Ireland there has been ”.

Law Reform (Year and a Day Rule) Act 1996 (c. 19)

33

In section 2 of the Law Reform (Year and a Day Rule) Act 1996 (restriction on institution of proceedings for fatal offence), in subsection (3), at the end of paragraph (b) insert

, or

c

an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult).

Family Law Act 1996 (c. 27)

34

1

Section 36 of the Family Law Act 1996 (one cohabitant or former cohabitant with no existing right to occupy) is amended as follows.

2

In subsection (1)(c), for the words from “live together as” to the end substitute “ cohabit or a home in which they at any time cohabited or intended to cohabit ”.

3

In subsection (6)(f), for “lived together as husband and wife” substitute “ cohabited ”.

35

In section 38 of that Act (neither cohabitant or former cohabitant entitled to occupy), in subsection (1)(a), for “live or lived together as husband and wife” substitute “ cohabit or cohabited ”.

36

1

Section 42 of that Act (non-molestation orders) is amended as follows.

2

After subsection (4) insert—

4A

A court considering whether to make an occupation order shall also consider whether to exercise the power conferred by subsection (2)(b).

4B

In this Part “the applicant”, in relation to a non-molestation order, includes (where the context permits) the person for whose benefit such an order would be or is made in exercise of the power conferred by subsection (2)(b).

3

In subsection (5)(a) omit the words from “or” to “made”.

37

1

Section 46 of that Act (undertakings) is amended as follows.

2

In subsection (3), after “under subsection (1)” insert “ instead of making an occupation order ”.

3

After that subsection insert—

3A

The court shall not accept an undertaking under subsection (1) instead of making a non-molestation order in any case where it appears to the court that—

a

the respondent has used or threatened violence against the applicant or a relevant child; and

b

for the protection of the applicant or child it is necessary to make a non-molestation order so that any breach may be punishable under section 42A.

4

In subsection (4), for “it were an order of the court” substitute “ the court had made an occupation order or a non-molestation order in terms corresponding to those of the undertaking ”.

38

1

Section 47 of that Act (arrest for breach of occupation order or non-molestation order) is amended as follows.

2

Omit subsection (1).

3

In subsections (2) and (4), for “a relevant order” substitute “ an occupation order ”.

4

In subsections (3) and (5), for “the relevant order” substitute “ the occupation order ”.

5

In subsection (8), for the words up to the end of paragraph (b) substitute—

If the court—

a

has made a non-molestation order, or

b

has made an occupation order but has not attached a power of arrest under subsection (2) or (3) to any provision of the order, or has attached that power only to certain provisions of the order,

39

In section 49 of that Act (variation and discharge of orders), in subsection (4) omit “or non-molestation order”.

40

In section 62 of that Act (definitions), in subsection (1)(b), for “ “former cohabitants” is to be read accordingly, but” substitute “ “cohabit” and “former cohabitants” are to be read accordingly, but the latter expression ”.

41

1

In section 63 of that Act (interpretation of Part 4), subsection (1) is amended as follows.

2

At the beginning of the definition of “cohabitant” and “former cohabitant” insert

cohabit

,

3

In the definition of “relative”—

a

for “or nephew” in paragraph (b) substitute “ , nephew or first cousin ”;

b

for “is living or has lived with another person as husband and wife” substitute “ is cohabiting or has cohabited with another person ”.

42

1

Schedule 7 to that Act (transfer of certain tenancies on divorce etc or on separation of cohabitants) is amended as follows.

2

In paragraph 3(2), for “to live together as husband and wife” substitute “ to cohabit ”.

3

In paragraph 4(b), for “lived together as husband and wife” substitute “ cohabited ”.

Protection from Harassment Act 1997 (c. 40)

43

1

Section 5 of the Protection from Harassment Act 1997 (power to make restraining order where defendant convicted of offence under section 2 or 4 of that Act) is amended as follows.

2

In the heading, at the end insert “ on conviction ”.

3

In subsection (2) omit “further”.

44

In section 7 of that Act (interpretation), in subsection (1), for “sections 1 to 5” substitute “ sections 1 to 5A ”.

Crime (Sentences) Act 1997 (c. 43)

45

1

Section 47 of the Crime (Sentences) Act 1997 (power to specify hospital units) is amended as follows.

2

Omit subsections (1)(d) and (2)(c).

3

For subsection (4) substitute—

4

A reference in this section to section 37 or 41 of the 1983 Act includes a reference to that section as it applies by virtue of—

a

section 5 of the Criminal Procedure (Insanity) Act 1964,

b

section 6 or 14 of the Criminal Appeal Act 1968,

c

section 116A of the Army Act 1955 or the Air Force Act 1955 or section 63A of the Naval Discipline Act 1957, or

d

section 16 or 23 of the Courts-Martial (Appeals) Act 1968.

46

1

Schedule 1 to that Act (transfers of prisoners within the British Islands) (as amended by Schedule 32 to the Criminal Justice Act 2003) is amended as follows.

2

In paragraph 8 (restricted transfers from England and Wales to Scotland), in sub-paragraphs (2)(a) and (4)(a), for “264” substitute “ 264A ”.

3

In paragraph 9 (restricted transfers from England and Wales to Northern Ireland), in sub-paragraphs (2)(a) and (4)(a), for “264” substitute “ 264A ”.

Protection from Harassment (Northern Ireland) Order 1997 (S.I. 1997/1180 (N.I. 9))

47

1

Article 7 of the Protection from Harassment (Northern Ireland) Order 1997 (power to make restraining order where defendant convicted of offence under Article 4 or 6 of that Act) is amended as follows.

2

In the heading, at the end insert “ on conviction ”.

3

In paragraph (2) omit “further”.

Crime and Disorder Act 1998 (c. 37)

48

In section 32 of the Crime and Disorder Act 1998 (racially or religiously aggravated harassment etc) omit subsection (7) (which is superseded by provision made by section 12(1) above).

Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)

49

In section 132 of the Powers of Criminal Courts (Sentencing) Act 2000 (compensation orders: appeals etc), after subsection (4) insert—

4A

Where an order is made in respect of a person under subsection (3) or (4) above, the Court of Appeal or House of Lords shall make such order for the payment of a surcharge under section 161A of the Criminal Justice Act 2003, or such variation of the order of the Crown Court under that section, as is necessary to secure that the person’s liability under that section is the same as it would be if he were being dealt with by the Crown Court.

50

In section 136 of that Act (power to order statement as to financial circumstances of parent or guardian), in subsection (1), for “or compensation” substitute “ , compensation or surcharge ”.

51

1

Section 137 of that Act (power to order parent or guardian to pay fine, costs or compensation) is amended as follows.

2

In the heading, for “or compensation” substitute “ , compensation or surcharge ”.

3

After subsection (1) insert—

1A

Where but for this subsection a court would order a child or young person to pay a surcharge under section 161A of the Criminal Justice Act 2003, the court shall order that the surcharge be paid by the parent or guardian of the child or young person instead of by the child or young person himself, unless the court is satisfied—

a

that the parent or guardian cannot be found; or

b

that it would be unreasonable to make an order for payment, having regard to the circumstances of the case.

4

In subsection (3), for “subsections (1) and (2)” substitute “ subsections (1) to (2) ”.

52

1

Section 138 of that Act (fixing of fine or compensation to be paid by parent or guardian) is amended as follows.

2

In the heading, for “or compensation” substitute “ , compensation or surcharge ”.

3

Before paragraph (a) of subsection (1) insert—

za

subsection (3) of section 161A of the Criminal Justice Act 2003 (surcharges) and subsection (4A) of section 164 of that Act (fixing of fines) shall have effect as if any reference in those subsections to the offender’s means were a reference to those of the parent or guardian;

53

In section 142(1) of that Act (power of Crown Court to order search of persons before it)—

a

before paragraph (a) insert—

za

the Crown Court orders a person to pay a surcharge under section 161A of the Criminal Justice Act 2003,

b

in paragraph (d), for “or compensation” substitute “ , compensation or surcharge ”.

Criminal Justice and Court Services Act 2000 (c. 43)

54

The Criminal Justice and Court Services Act 2000 is amended as follows.

55

Section 69 (duties in connection with victims of certain offences) (which is superseded by section 35 of this Act) is repealed.

56

In Schedule 4 (offences against children for the purposes of disqualification orders), in paragraph 3, after paragraph (sa) insert—

sb

he commits an offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult) in respect of a child.

Sexual Offences Act 2003 (c. 42)

57

1

Section 133 of the Sexual Offences Act 2003 (general interpretation of Part 2) is amended as follows.

2

In subsection (1)—

a

in the definition of “admitted to a hospital”, for paragraph (c) substitute—

c

section 46 of the Mental Health Act 1983, section 69 of the Mental Health (Scotland) Act 1984 or Article 52 of the Mental Health (Northern Ireland) Order 1986;

b

in the definition of “detained in a hospital”, for paragraph (c) substitute—

c

section 46 of the Mental Health Act 1983, section 69 of the Mental Health (Scotland) Act 1984 or Article 52 of the Mental Health (Northern Ireland) Order 1986;

c

in the definition of “restriction order”, for paragraph (c) substitute—

c

a direction under section 46 of the Mental Health Act 1983, section 69 of the Mental Health (Scotland) Act 1984 or Article 52 of the Mental Health (Northern Ireland) Order 1986;

3

After that subsection insert—

1A

A reference to a provision specified in paragraph (a) of the definition of “admitted to a hospital”, “detained in a hospital” or “restriction order” includes a reference to the provision as it applies by virtue of—

a

section 5 of the Criminal Procedure (Insanity) Act 1964,

b

section 6 or 14 of the Criminal Appeal Act 1968,

c

section 116A of the Army Act 1955 or the Air Force Act 1955 or section 63A of the Naval Discipline Act 1957, or

d

section 16 or 23 of the Courts-Martial (Appeals) Act 1968.

58

In section 135 of that Act (interpretation: mentally disordered offenders), omit subsection (4)(c).

59

1

Schedule 5 to that Act (other offences for the purposes of sexual offences prevention orders) is amended as follows.

2

After paragraph 63 insert—

63A

An offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult).

3

After paragraph 171 insert—

171A

An offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult).

4

In paragraph 172, for “63” substitute “ 63A ”.

Criminal Justice Act 2003 (c. 44)

60

In section 48 of the Criminal Justice Act 2003 (c. 44) (further provisions about trial without a jury), in subsection (6), for paragraphs (a) and (b) substitute “ the requirement under section 4A of the Criminal Procedure (Insanity) Act 1964 that any question, finding or verdict mentioned in that section be determined, made or returned by a jury ”.

61

In section 50 of that Act (application of Part 7 to Northern Ireland), in subsection (13), for paragraphs (a) to (c) substitute—

a

for “section 4A of the Criminal Procedure (Insanity) Act 1964” substitute “ Article 49A of the Mental Health (Northern Ireland) Order 1986 ”, and

b

for “that section” substitute “ that Article ”.

62

In section 74 of that Act (interpretation of Part 9), after subsection (6) insert—

7

In its application to a trial on indictment in respect of which an order under section 17(2) of the Domestic Violence, Crime and Victims Act 2004 has been made, this Part is to have effect with such modifications as the Secretary of State may by order specify.

63

In section 151 of that Act (community order for persistent offender previously fined), in subsection (5), after “compensation order” insert “ or a surcharge under section 161A ”.

64

In section 305 of that Act (interpretation of Part 12), in subsection (1), insert at the appropriate place—

“compensation order” has the meaning given by section 130(1) of the Sentencing Act;

65

In Schedule 15 to that Act (specified offences for the purposes of Chapter 5 of Part 12 of that Act), in Part 1 (specified violent offences), after paragraph 63 insert—

63A

An offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult).

66

In Schedule 17 to that Act (Northern Ireland offences specified for the purposes of section 229(4)), in Part 1 (specified violent offences), after paragraph 60 insert—

60A

An offence under section 5 of the Domestic Violence, Crime and Victims Act 2004 (causing or allowing the death of a child or vulnerable adult).

I8SCHEDULE 11Repeals

Section 58(2)

Annotations:
Commencement Information
I8

Sch. 11 partly in force; Sch. 11 not in force at Royal Assent see s. 60; Sch. 11 in force for certain purposes at 21.3.2005 and 31.3.2005 by S.I. 2005/579, arts. 2(e), 3(i); Sch. 11 in force for certain purposes at 1.7.2005 by S.I. 2005/1705, art. 2(f); Sch. 11 in force for certain purposes at 5.12.2005 by S.I. 2005/3196, art. 2(e); Sch. 11 in force for certain purposes at 1.7.2007 by S.I. 2007/1845, art. 2(d); Sch. 11 in force for certain purposes at 30.9.2009 by S.I. 2009/2501, art. 2(e) and S.I. 2009/2616, art. 2(d)

Short title and chapter

Extent of repeal

Criminal Procedure (Insanity) Act 1964 (c. 84)

Section 7.

In section 8—

  1. a

    the proviso to subsection (3);

  2. b

    in subsection (4), the words from “, except” to “courts-martial,”.

Schedule 2.

Criminal Appeal Act 1968 (c. 19)

Section 14A.

Courts-Martial (Appeals) Act 1968 (c. 20)

In Schedule 3, paragraph 3(b).

Juries Act 1974 (c. 23)

In section 11, paragraph (b) of subsection (5) and “(b)” in subsection (6).

In Schedule 1, paragraph 4(2).

Supreme Court Act 1981 (c. 54)

In section 55(4)(a)(iii), the words “of a jury”.

Mental Health Act 1983 (c. 20)

In section 69(2)(a), the words “or section 5(1) of the Criminal Procedure (Insanity) Act 1964”.

Section 71(5) and (6).

Section 79(1)(b).

Prosecution of Offences Act 1985 (c. 23)

In section 16(4), the word “or” preceding paragraph (c).

Coroners Act 1988 (c. 13)

In section 16(1)(a), the word “or” preceding sub-paragraph (iii).

In section 17, in subsections (1) and (2) the word “or” preceding paragraph (c).

Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 (c. 25)

Sections 3 and 5.

In section 6

  1. a

    the definition of “local probation board” in subsection (1);

  2. b

    subsection (2).

Schedules 1 and 2.

Law Reform (Year and a Day Rule) Act 1996 (c. 19)

In section 2(3), the word “or” preceding paragraph (b).

Family Law Act 1996 (c. 27)

Section 41.

In section 42(5)(a), the words from “or” to “made”.

Section 47(1).

In section 49(4), the words “or non-molestation order”.

Armed Forces Act 1996 (c. 46)

Section 8.

Schedule 2.

Protection from Harassment Act 1997 (c. 40)

In section 5, the words “under section 2 or 4” in subsection (1) and the word “further” in subsection (2).

Crime (Sentences) Act 1997 (c. 43)

In section 47

  1. a

    in subsection (1), paragraph (d) and the word “or” preceding it;

  2. b

    in subsection (2), paragraph (c) and the word “and” preceding it.

Protection from Harassment (Northern Ireland) Order 1997 (S.I.1997/1180(N.I.9))

In Article 7, the words “under Article 4 or 6” in paragraph (1) and the word “further” in paragraph (2).

Crime and Disorder Act 1998 (c. 37)

Section 32(7).

Access to Justice Act 1999 (c. 22)

In Schedule 13, paragraph 163.

Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)

In Schedule 9, paragraph 133.

Care Standards Act 2000 (c. 14)

In Schedule 4, paragraph 16.

Criminal Justice and Court Services Act 2000 (c. 43)

Section 69.

In Schedule 7, paragraphs 99 to 102.

Sexual Offences Act 2003 (c. 42)

Section 135(4)(c).

Criminal Justice Act 2003 (c. 44)

In section 246(6), in the definition of “the required custodial days”, the word “or” preceding paragraph (b).

In section 264(1), the word “and” preceding paragraph (b).

SCHEDULE 12Transitional and transitory provisions

Section 59

1

1

Section 1 and paragraphs 37 to 39 of Schedule 10 apply only in relation to conduct occurring on or after the commencement of that section.

2

In relation to an offence committed before the commencement of section 154(1) of the Criminal Justice Act 2003 (c. 44), the reference to 12 months in subsection (5)(b) of section 42A of the Family Law Act 1996 (inserted by section 1 of this Act) is to be read as a reference to six months.

2

In section 5, the reference in subsection (1)(a) to an unlawful act does not include an act that (or so much of an act as) occurs before the commencement of that section.

3

1

This paragraph has effect, in relation to any time before the commencement of the repeal (by paragraph 51 of Schedule 3 to the Criminal Justice Act 2003) of section 6 of the Magistrates' Courts Act 1980 (c. 43), where—

a

a magistrates' court is considering under subsection (1) of that section whether to commit a person (“the accused”) for trial for an offence of murder or manslaughter, and

b

the accused is charged in the same proceedings with an offence under section 5 above in respect of the same death.

2

If there is sufficient evidence to put the accused on trial by jury for the offence under section 5, there is deemed to be sufficient evidence to put him on trial by jury for the offence of murder or manslaughter.

I94

Section 10 applies only in relation to offences committed on or after the commencement of that section.

Annotations:
Commencement Information
I9

Sch. 12 para. 4 partly in force; para. 4 not in force at Royal Assent see s. 60; para. 4 in force for certain purposes at 1.7.2005 by S.I. 2005/1705, art. 2(h)

5

1

Section 12(1) and paragraphs 43(3) and 48 of Schedule 10 do not apply where the conviction occurs before the commencement of those provisions.

2

Section 12(2) applies only in relation to applications made on or after the commencement of that provision.

3

Section 12(4) and paragraphs 43(2) and 44 of Schedule 10 do not apply where the acquittal (or, where subsection (5) of the inserted section 5A applies, the allowing of the appeal) occurs before the commencement of those provisions.

6

1

Section 13(1) and paragraph 47(3) of Schedule 10 do not apply where the conviction occurs before the commencement of those provisions.

2

Section 13(2) applies only in relation to applications made on or after the commencement of that provision.

3

Section 13(4) and paragraph 47(2) of Schedule 10 do not apply where the acquittal (or, where paragraph (5) of the inserted Article 7A applies, the allowing of the appeal) occurs before the commencement of those provisions.

7

Section 14 applies only in relation to offences committed on or after the commencement of that section.

8

1

The provisions mentioned in sub-paragraph (2) do not apply—

a

in relation to proceedings before the Crown Court or a court-martial, where the accused was arraigned before the commencement of those provisions;

b

in relation to proceedings before the Court of Appeal or the Courts-Martial Appeal Court, where the hearing of the appeal began before that commencement.

2

The provisions are—

a

sections 22 and 23;

b

section 24 and Schedule 2;

c

section 26 and Schedule 3;

d

paragraphs 5, 6, 8, 17 to 21, 45, 60 and 61 of Schedule 10

9

The Schedule inserted by Schedule 2 has effect in relation to any time before the commencement of sections 8 and 37 of the Courts Act 2003 (c. 39)—

a

as if a reference to a local justice area were to a petty sessions area;

b

as if a reference to a designated officer were to a justices' chief executive.

10

Each entry in Schedule 11 applies in the same way as the provision of this Act to which it corresponds.