Serious Crime Bill (HC Bill 160)

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(c) any civil remedies under the Protection from Harassment Act
1997;

(d) any right to an occupation order or a non-molestation order
under Part 4 of the Family Law Act 1996;

(e) 5any right to a forced marriage protection order under Part 4A
of that Act;

(f) any protection or assistance under the Children Act 1989;

(g) any claim in tort.

Interpretation

17 (1) 10In this Part of this Schedule—

  • “the court”, except as provided in sub-paragraph (2), means the
    High Court, or the family court, in England and Wales;

  • “FGM protection order” means an order under paragraph 1;

  • “genital mutilation offence” means an offence under section 1, 2
    15or 3;

  • “the relevant judge”, in relation to an FGM protection order,
    means—

    (a)

    where the order was made by the High Court, a judge
    of that court;

    (b)

    20where the order was made by the family court, a
    judge of that court;

    (c)

    where the order was made by a court in criminal
    proceedings under paragraph 3

    (i)

    a judge of that court, or

    (ii)

    25a judge of the High Court or of the family
    court.

(2) Where the power to make an FGM protection order is exercisable by
a court in criminal proceedings under paragraph 3, references in this
Part of this Schedule to “the court” (other than in paragraph 2) are to
30be read as references to that court.

(3) In paragraph (c)(i) of the definition of “relevant judge” in sub-
paragraph (1), the reference to a judge of the court that made the
order includes, in the case of criminal proceedings in a magistrates’
court, a reference to a justice of the peace.

35Part 2 Northern Ireland
Power to make FGM protection order

18 (1) The court in Northern Ireland may make an order (an “FGM
protection order”) for the purposes of—

(a) 40protecting a girl against the commission of a genital
mutilation offence, or

(b) protecting a girl against whom any such offence has been
committed.

(2) In deciding whether to exercise its powers under this paragraph and,
45if so, in what manner, the court must have regard to all the

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circumstances, including the need to secure the health, safety and
well-being of the girl to be protected.

(3) An FGM protection order may contain—

(a) such prohibitions, restrictions or requirements, and

(b) 5such other terms,

as the court considers appropriate for the purposes of the order.

(4) The terms of an FGM protection order may, in particular, relate to—

(a) conduct outside Northern Ireland as well as (or instead of)
conduct within Northern Ireland;

(b) 10respondents who are, or may become, involved in other
respects as well as (or instead of) respondents who commit or
attempt to commit, or may commit or attempt to commit, a
genital mutilation offence against a girl;

(c) other persons who are, or may become, involved in other
15respects as well as respondents of any kind.

(5) For the purposes of sub-paragraph (4) examples of involvement in
other respects are—

(a) aiding, abetting, counselling, procuring, encouraging or
assisting another person to commit, or attempt to commit, a
20genital mutilation offence against a girl;

(b) conspiring to commit, or to attempt to commit, such an
offence.

(6) An FGM protection order may be made for a specified period or until
varied or discharged (see paragraph 23).

25Applications and other occasions for making orders

19 (1) The court may make an FGM protection order—

(a) on an application being made to it, or

(b) without an application being made to it but in the
circumstances mentioned in sub-paragraph (6).

(2) 30An application may be made by—

(a) the girl who is to be protected by the order, or

(b) a relevant third party.

(3) An application may be made by any other person with the leave of
the court.

(4) 35In deciding whether to grant leave, the court must have regard to all
the circumstances including—

(a) the applicant’s connection with the girl to be protected;

(b) the applicant’s knowledge of the circumstances of the girl.

(5) An application under this paragraph may be made in family
40proceedings or without any family proceedings being instituted.

(6) The circumstances in which the court may make an order without an
application being made are where—

(a) any family proceedings are before the court (“the current
proceedings”),

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(b) the court considers that an FGM protection order should be
made to protect a girl (whether or not a party to the
proceedings), and

(c) a person who would be a respondent to any proceedings for
5an FGM protection order is a party to the current
proceedings.

(7) In this paragraph—

  • “family proceedings” has the same meaning as in the Family
    Homes and Domestic Violence (Northern Ireland) Order
    101998 (S.I. 1998/1071 (N.I. 6)S.I. 1998/1071 (N.I. 6)) (see Article 2(2) and (3) of that
    Order), but also includes—

    (a)

    proceedings under the inherent jurisdiction of the
    High Court in relation to adults,

    (b)

    proceedings in which the court has made an
    15emergency protection order under Article 63 of the
    Children (Northern Ireland) Order 1995 (S.I. 1995/
    755 (N.I. 2)) which includes an exclusion requirement
    (as defined in Article 63A of that Order), and

    (c)

    proceedings in which the court has made an order
    20under Article 69 of the 1995 Order (recovery of
    abducted children etc);

  • “relevant third party” means a person specified, or falling
    within a description of persons specified, by order made by
    the Department of Finance and Personnel (and any such
    25order may, in particular, specify that Department).

Power to make order in criminal proceedings

20 The court before which there are criminal proceedings in Northern
Ireland for a genital mutilation offence may make an FGM protection
order (without an application being made to it) if—

(a) 30the court considers that an FGM protection order should be
made to protect a girl (whether or not the victim of the
offence in relation to the criminal proceedings), and

(b) a person who would be a respondent to any proceedings for
an FGM protection order is a defendant in the criminal
35proceedings.

Offence of breaching order

21 (1) A person who without reasonable excuse does anything that the
person is prohibited from doing by an FGM protection order is guilty
of an offence.

(2) 40A person guilty of an offence under this paragraph 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 6 months, or a fine not exceeding the statutory
45maximum, or both.

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Ex parte orders

22 (1) The court may, in any case where it is just and convenient to do so,
make an FGM protection order even though the respondent has not
been given such notice of the proceedings as would otherwise be
5required by rules of court.

(2) In deciding whether to exercise its powers under sub-paragraph (1),
the court must have regard to all the circumstances including—

(a) the risk to the girl, or to another person, of becoming a victim
of a genital mutilation offence if the order is not made
10immediately,

(b) whether it is likely that an applicant will be deterred or
prevented from pursuing an application if an order is not
made immediately, and

(c) whether there is reason to believe that—

(i) 15the respondent is aware of the proceedings but is
deliberately evading service, and

(ii) the delay involved in effecting substituted service
will cause serious prejudice to the girl to be protected
or (if different) an applicant.

(3) 20If the court makes an order by virtue of sub-paragraph (1), it must
specify a date for a full hearing.

(4) In sub-paragraph (3), “full hearing” means a hearing of which notice
has been given to all the parties in accordance with rules of court.

Variation and discharge of orders

23 (1) 25The court may vary or discharge an FGM protection order on an
application by—

(a) any party to the proceedings for the order,

(b) the girl being protected by the order (if not a party to the
proceedings for the order), or

(c) 30any person affected by the order.

(2) In the case of an order made in criminal proceedings under
paragraph 20, the reference in sub-paragraph (1)(a) to a party to the
proceedings for the order is to be read as a reference to the
prosecution and the defendant.

(3) 35In addition, the court may vary or discharge an FGM protection
order made by virtue of paragraph 19(1)(b) or 20 even though no
application under sub-paragraph (1) above has been made to the
court.

(4) Paragraph 22 applies to a variation of an FGM protection order as it
40applies to the making of such an order (and references in that
paragraph to the making of an FGM protection order are to be read
accordingly).

Jurisdiction of courts

24 (1) For the purposes of this Part of this Schedule, “the court” means the
45High Court, or a county court, in Northern Ireland.

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(2) Sub-paragraph (1) is subject to—

(a) sub-paragraph (3), and

(b) any provision made by virtue of sub-paragraph (4) or (5).

(3) Where the power to make an FGM protection order is exercisable by
5a court in criminal proceedings under paragraph 20, references in
this Part of this Schedule to “the court” (other than in paragraph 19)
are to be read as references to that court.

(4) Article 34(3) to (10) of the Family Homes and Domestic Violence
(Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6)S.I. 1998/1071 (N.I. 6)) (allocation of
10proceedings to courts etc) applies for the purposes of this Part of this
Schedule as it applies for the purposes of that Order but as if the
following modification were made.

(5) The modification is that Article 34(8) is to be read as if there were
substituted for it—

(8) 15For the purposes of paragraphs (3), (4) and (5), there are two levels
of court—

(a) the High Court; and

(b) a county court.

Power to extend jurisdiction to courts of summary jurisdiction

25 (1) 20The Department of Justice in Northern Ireland may, after consulting
the Lord Chief Justice, by order provide for courts of summary
jurisdiction to be included among the courts who may hear
proceedings under this Part of this Schedule.

(2) An order under sub-paragraph (1) may, in particular, make any
25provision in relation to courts of summary jurisdiction which
corresponds to provision made in relation to such courts by or under
the Family Homes and Domestic Violence (Northern Ireland) Order
1998 (S.I. 1998/1071 (N.I. 6)S.I. 1998/1071 (N.I. 6)).

(3) Any power to make an order under this paragraph (including the
30power as extended by paragraph 29(1)) may, in particular, be
exercised by amending, repealing, revoking or otherwise modifying
any provision made by or under this Part of this Schedule or any
other enactment.

(4) In sub-paragraph (3) “enactment” includes Northern Ireland
35legislation.

(5) The Lord Chief Justice may nominate any of the following to exercise
the Lord Chief Justice’s functions under this Part of this Schedule—

(a) the holder of one of the offices listed in Schedule 1 to the
Justice (Northern Ireland) Act 2002;

(b) 40a Lord Justice of Appeal (as defined by section 88 of that Act).

Contempt proceedings

26 The powers of the court in relation to contempt of court arising out
of a person’s failure to comply with an FGM protection order, or
otherwise in connection with such an order, may be exercised by the
45relevant judge.

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Appeals from county courts

27 (1) An appeal lies to the High Court against—

(a) the making by a county court of any order under this Part of
this Schedule, or

(b) 5any refusal by a county court to make such an order,

as if the decision had been made in the exercise of the jurisdiction
conferred by Part 3 of the County Courts (Northern Ireland) Order
1980 (S.I. 1980/397 (N.I. 3)S.I. 1980/397 (N.I. 3)) (original civil jurisdiction) and the appeal
were brought under Article 60 of that Order (ordinary appeals in
10civil cases).

(2) But an appeal does not lie to the High Court under sub-paragraph (1)
where the county court is a divorce county court exercising
jurisdiction under the Matrimonial Causes (Northern Ireland) Order
1978 (S.I. 1978/1045 (N.I. 15)S.I. 1978/1045 (N.I. 15)) in the same proceedings.

(3) 15Provision must be made by rules of court for an appeal to lie (upon a
point of law, a question of fact or the admission or rejection of any
evidence) to the Court of Appeal against—

(a) the making of any order under this Part of this Schedule, or

(b) any refusal to make such an order,

20by a county court of the type referred to in sub-paragraph (2).

(4) Sub-paragraph (3) is without prejudice to Article 61 of the County
Courts (Northern Ireland) Order 1980 (S.I. 1980/397 (N.I. 3)S.I. 1980/397 (N.I. 3)) (cases
stated).

(5) On an appeal under sub-paragraph (1), the High Court may make
25such orders as may be necessary to give effect to its determination of
the appeal.

(6) Where an order is made under sub-paragraph (5), the High Court
may also make such incidental or consequential orders as appear to
it to be just.

(7) 30Any order of the High Court made on an appeal under sub-
paragraph (1) (other than one directing that an application be re-
heard by the county court) is to be treated, for the purposes of—

(a) the enforcement of the order, and

(b) any power to vary, revive or discharge orders,

35as if it were an order of the county court from which the appeal was
brought and not an order of the High Court.

(8) This paragraph is subject to paragraph 28.

Appeals: transfers and proposed transfers

28 (1) The Department of Justice in Northern Ireland may, after consulting
40the Lord Chief Justice, by order make provision as to the
circumstances in which appeals may be made against decisions
taken by courts on questions arising in connection with the transfer,
or proposed transfer, of proceedings by virtue of an order made
under Article 34(5) of the Family Homes and Domestic Violence
45(Northern Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6)S.I. 1998/1071 (N.I. 6)) as applied by
paragraph 24(4) and (5) above.

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(2) Except so far as provided for in any order made under sub-
paragraph (1), no appeal may be made against any decision of a kind
mentioned in that sub-paragraph.

(3) The Lord Chief Justice may nominate any of the following to exercise
5the Lord Chief Justice’s functions under this paragraph—

(a) the holder of one of the offices listed in Schedule 1 to the
Justice (Northern Ireland) Act 2002;

(b) a Lord Justice of Appeal (as defined in section 88 of that Act).

Orders

29 (1) 10An order made under or by virtue of paragraph 19(7), 24(4) and (5),
25(1) or 28(1)

(a) may make different provision for different purposes;

(b) may contain incidental, supplemental, consequential,
transitional, transitory or saving provision;

(c) 15is to be made by statutory rule for the purposes of the
Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/
1573 (N.I. 12)).

(2) An order made under or by virtue of paragraph 19(7), 24(4) and (5)
or 28(1) is subject to negative resolution (within the meaning of
20section 41(6) of the Interpretation Act (Northern Ireland) 1954 (c. 33
(N.I))).

(3) An order under paragraph 25(1) may not be made unless a draft of
the order has been laid before, and approved by a resolution of, the
Northern Ireland Assembly.

(4) 25Section 41(3) of the Interpretation Act (Northern Ireland) 1954 (c. 33
(N.I.)) applies for the purposes of sub-paragraph (3) in relation to the
laying of a draft as it applies in relation to the laying of a statutory
document under an enactment.

Other protection or assistance against female genital mutilation

30 (1) 30Nothing in this Part of this Schedule affects any other protection or
assistance available to a girl who is or may become the victim of a
genital mutilation offence.

(2) In particular, it does not affect—

(a) the inherent jurisdiction of the High Court;

(b) 35any criminal liability;

(c) any right to an occupation order or a non-molestation order
under the Family Homes and Domestic Violence (Northern
Ireland) Order 1998 (S.I. 1998/1071 (N.I. 6)S.I. 1998/1071 (N.I. 6));

(d) any civil remedies under the Protection from Harassment
40(Northern Ireland) Order 1997 (S.I. 1997/1180 (N.I. 9)S.I. 1997/1180 (N.I. 9));

(e) any protection or assistance under the Children (Northern
Ireland) Order 1995 (S.I. 1995/755 (N.I. 2)S.I. 1995/755 (N.I. 2));

(f) any right to a forced marriage protection order under
Schedule 1 to the Forced Marriage (Civil Protection) Act 2007;

(g) 45any claim in tort.

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Interpretation

31 In this Part of this Schedule—

  • “the court” is to be read in accordance with paragraph 24;

  • “FGM protection order” means an order under paragraph 18;

  • 5“genital mutilation offence” means an offence under section 1, 2
    or 3;

  • “the relevant judge”, in relation to an FGM protection order,
    means—

    (a)

    where the order was made by the High Court, a judge
    10of that court;

    (b)

    where the order was made by a county court, a judge
    or district judge of that or any other county court;

    (c)

    where the order was made by a court in criminal
    proceedings under paragraph 20

    (i)

    15a judge of that court, or

    (ii)

    a judge of the High Court or a judge or district
    judge of a county court.

Domestic abuse

73 Controlling or coercive behaviour in an intimate or family relationship

(1) 20A person (A) commits an offence if—

(a) A repeatedly or continuously engages in behaviour towards another
person (B) that is controlling or coercive,

(b) at the time of the behaviour, A and B are personally connected,

(c) the behaviour has a serious effect on B, and

(d) 25A knows or ought to know that the behaviour will have a serious effect
on B.

(2) A and B are “personally connected” if—

(a) A is in an intimate personal relationship with B, or

(b) A and B live together and—

(i) 30they are members of the same family, or

(ii) they have previously been in an intimate personal relationship
with each other.

(3) But A does not commit an offence under this section if at the time of the
behaviour in question—

(a) 35A has responsibility for B, for the purposes of Part 1 of the Children and
Young Persons Act 1933 (see section 17 of that Act), and

(b) B is under 16.

(4) A’s behaviour has a “serious effect” on B if—

(a) it causes B to fear, on at least two occasions, that violence will be used
40against B, or

(b) it causes B serious alarm or distress which has a substantial adverse
effect on B’s usual day-to-day activities.

(5) For the purposes of subsection (1)(d) A “ought to know” that which a
reasonable person in possession of the same information would know.

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(6) For the purposes of subsection (2)(b)(i) A and B are members of the same
family if—

(a) they are, or have been, married to each other;

(b) they are, or have been, civil partners of each other;

(c) 5they are relatives;

(d) they have agreed to marry one another (whether or not the agreement
has been terminated);

(e) they have entered into a civil partnership agreement (whether or not
the agreement has been terminated);

(f) 10they are both parents of the same child;

(g) they have, or have had, parental responsibility for the same child.

(7) In subsection (6)

  • “civil partnership agreement” has the meaning given by section 73 of the
    Civil Partnership Act 2004;

  • 15“child” means a person under the age of 18 years;

  • “parental responsibility” has the same meaning as in the Children Act
    1989;

  • “relative” has the meaning given by section 63(1) of the Family Law Act
    1996.

(8) 20In proceedings for an offence under this section it is a defence for A to show
that—

(a) in engaging in the behaviour in question, A believed that he or she was
acting in B’s best interests, and

(b) the behaviour was in all the circumstances reasonable.

(9) 25A is to be taken to have shown the facts mentioned in subsection (8) if—

(a) sufficient evidence of the facts is adduced to raise an issue with respect
to them, and

(b) the contrary is not proved beyond reasonable doubt.

(10) The defence in subsection (8) is not available to A in relation to behaviour that
30causes B to fear that violence will be used against B.

(11) 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
35months, or a fine, or both.

74 Guidance

(1) The Secretary of State may issue guidance about the investigation of offences
under section 73 to whatever persons the Secretary of State considers
appropriate.

(2) 40The Secretary of State may revise any guidance issued under this section.

(3) The Secretary of State must arrange for any guidance issued or revised under
this section to be published.

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Part 6 Miscellaneous and general

Miscellaneous

75 Knives and offensive weapons in prisons

5After section 40C of the Prison Act 1952 insert—

40CA Unauthorised possession in prison of knife or offensive weapon

(1) A person who, without authorisation, is in possession of an article
specified in subsection (2) inside a prison is guilty of an offence.

(2) The articles referred to in subsection (1) are—

(a) 10any article that has a blade or is sharply pointed;

(b) any other offensive weapon (as defined in section 1(9) of the
Police and Criminal Evidence Act 1984).

(3) In proceedings for an offence under this section it is a defence for the
accused to show that—

(a) 15he reasonably believed that he had authorisation to be in
possession of the article in question, or

(b) in all the circumstances there was an overriding public interest
which justified his being in possession of the article.

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

(a) 20on conviction on indictment, to imprisonment for a term not
exceeding four years or to a fine (or both);

(b) on summary conviction, to imprisonment for a term not
exceeding 12 months or to a fine (or both).

(5) In this section “authorisation” means authorisation given for the
25purposes of this section; and subsections (1) to (3) of section 40E apply
in relation to authorisations so given as they apply to authorisations
given for the purposes of section 40D.

76 Prevention or restriction of use of communication devices by prisoners etc

(1) Regulations may make provision conferring power on a court to make a
30telecommunications restriction order.

(2) “Telecommunications restriction order” means an order requiring a
communications provider to take whatever action the order specifies for the
purpose of preventing or restricting the use of communication devices by
persons detained in custodial institutions.

(3) 35Regulations under this section must—

(a) specify who may apply for telecommunications restriction orders;

(b) make provision about giving notice of applications;

(c) make provision conferring rights on persons to make representations;

(d) specify the matters about which the court must be satisfied if it is to
40make an order;