Explanatory Notes


Commentary on provisions of Bill

Part 1: Victims of Criminal Conduct

Meaning of "victim"

Clause 1: "Meaning of Victim"

164 Clause 1 defines a "victim" for the purpose of this Part of the Bill.

165 Subsection (1) describes a victim as somebody who has been harmed by a crime and is the person against whom the crime is committed or somebody who fits into one or more of the categories in subsection (2).

166 Subsection (2) captures other individuals who can be a victim for the purposes of this Part of the Bill, if they have suffered harm, in addition to the person against whom the crime is committed. It includes:

a. Those harmed as a result of witnessing criminal conduct, meaning those who see, hear, or directly experience the crime in live time.

b. Individuals born as a result of rape or any sexual offence that can directly result in a pregnancy.

c. Close family members of individuals killed by criminal conduct. This reflects the current Victims’ Code which specifies that bereaved families are victims for the purposes of the Code.

d. A child under 18 years of age who sees, hears, or experiences the effects of domestic abuse which constitutes criminal conduct between adults (aged 16 and older). This is to be read in accordance with the definition of a victim of domestic abuse in Part 1 section 3 of the Domestic Abuse Act 2021.

167 Subsection (4) defines:

a. "Harm" as including physical, mental or emotional harm (which captures both diagnosed and undiagnosed psychological condition or impacts on the person) and economic loss. This does not require the "harm" caused to the individual to be verified by another party, professional or otherwise; and,

b. "Criminal conduct" which means conduct which constitutes an offence in England and Wales, except for in relation to Clause 23, where it covers conduct which constitutes an offence in the UK, because the Parliamentary Health Services Ombudsman is a UK-wide body.

168 Subsection (5) confirms that a person can be a victim of criminal conduct for the purposes of this clause, irrespective of whether or not an offender is charged or convicted, including where the crime has not been reported. This ensures that the provisions of the Code issued under Clause 2 can cover the provision of services to victims at all stages of the criminal justice process and to victims of offences in respect of which no criminal proceedings are eventually brought (including where the victim chooses not to report the crime) or where criminal proceedings result in a not-guilty verdict

169 Subsection (6) makes an amendment to the definition of "victim" in section 52 of the Domestic Violence, Crime and Victims Act 2004 to ensure consistency between the two provisions.

Victims’ Code

Clause 2: The Victims’ Code

170 Clause 2 restates, with amendments, the provisions of section 32 of the Domestic Violence, Crime and Victims Act 2004 (the 2004 Act) that relate to the requirement to issue a Code of Practice (subsection (1)) in respect of the services to be provided to victims by persons who have functions relating to victims or the criminal justice system as a whole.

171 Subsection (3) inserts a new subsection into the re-stated provisions of the 2004 Act stating the key principles that must be reflected in the services provided under the Victims’ Code.

172 These principles are that victims of criminal conduct:

should be provided with information to help them understand the criminal justice process;

should be able to access services which support them (including, where appropriate, specialist services);

should have the opportunity to make their views heard in the criminal justice process; and

should be able to challenge decisions which have a direct impact on them.

173 Subsection (4) give the Secretary of State a power to make regulations making further provision about the Victims’ Code, including matters that the Code must include, subject to the restriction in subsection (5).

174 Subsections (6)-(8), as substantively restated from the 2004 Act allow the Code, amongst other things to:

differentiate between different types of victims, for example so that particularly vulnerable victims might receive a faster service, or a service tailored to their needs;

benefit persons other than the victim, such as those who might represent the victim like parents of victims who are children; and

allow for regional variations in the way that services are provided to victims so that the Code can reflect local practices.

175 Subsection (9) provides that the Code may not require anything to be done by a person acting in a judicial capacity (or someone acting on their behalf in that capacity) or by a person acting in the discharge of a prosecutorial function if that function involves exercising a discretion.

176 Subsection (11) is a transitional provision designed to ensure the continuity of the Victims’ Code.

Clause 3: Preparing and issuing the Victims’ Code

177 Clause 3 restates the procedure for issuing and amending the Code as set out under section 33 of the Domestic Violence, Crime and Victims Act 2004. However, historic references to the Secretary of State for Justice and the Secretary of State for the Home Department have been amended to refer instead to "the Secretary of State", which is defined in the Interpretation Act 1978 and means one of His Majesty’s Principal Secretary of State. In practice this power is expected to be exercised by the Secretary of State for Justice acting in consultation with the Secretary of State for the Home Department. Subsections (6)-(8) set out the procedure for the new Code to be laid in Parliament and provide for it to be brought into operation.

Clause 4: Revising the Victims’ Code

178 Clause 4 confirms that the procedure set out in clause 3 must be followed when revising the Victims’ Code once it has been brought into operation. These provisions are restated from section 33(8) and (9) of the Domestic Violence, Crime and Victims Act 2004.

179 It also creates a new secondary procedure for making amendments to the Victims’ Code, which can be used where the Secretary of State considers the revisions to be minor. Such amendments can be made without a public consultation and include corrections, clarifications and revisions which reflect changes to the law or practice or procedure of the criminal justice system. Subsection (5) states that, under this procedure, the Secretary of State must consult the Attorney General; lay a new Code before Parliament and stipulate via regulations when the new Victims’ Code will come into force.

Clause 5: Effect of non-compliance

180 Clause 5 restates section 34 of the Domestic Violence, Crime and Victims Act 2004 and provides that a failure to comply with the Code does not, in itself, give rise to any liability to criminal or civil proceedings.

Clause 6: Code awareness and reviewing compliance: criminal justice bodies

181 Clauses 6 and 7 use the definition "elected local policing body", which has the meaning given by section 101 of the Police Act 1996, namely; (a) a police and crime commissioner, and (b) the Mayor's Office for Policing and Crime. This is in contrast to the Clause 12 duty which applies to "local policing bodies"; the difference being that "elected local policing bodies" does not include the Common Council for the city of London Police area. This is because the guidance will set out that Clause 6 and 7 duties may be discharged within police and crime commissioner-chaired Local Criminal Justice Boards (LCJBs). The City of London police area does not have its own LCJB but is instead included within the London Criminal Justice Board. In addition, when criminal justice bodies break their data down to force area, London includes both City of London and the metropolitan police area. This approach has been confirmed as appropriate by the Association of Police and Crime Commissioners. For the purposes of these provisions, elected local policing bodies are referred to hereafter as PCCs.

182 Clause 6 places a duty on specified criminal justice bodies to take reasonable steps to promote awareness of the Victims’ Code and to review their compliance with the Victims’ Code.

183 Subsection (1)(a) specifies that the bodies must take reasonable steps to promote awareness of the victims’ code among users of those services and other members of the public. Together this will ensure that those who are engaged with the criminal justice system, as well as those who do not report a crime, will be captured. The inclusion of ‘reasonable’ gives bodies the flexibility to tailor their approach in different circumstances. This allows for those working in the system to use their expertise to determine the most appropriate moment and method of sharing the Code.

184 Subsection (1)(b) specifies that the bodies must keep under review whether and how their services are provided in accordance with the Victims’ Code. Criminal justice bodies must keep under review whether services are provided in accordance with the Victims’ Code (i.e. reviewing whether the services are being provided at all), as well as how they are delivering them (i.e. what ways are the services provided).

185 Subsections (2)(a) – (c) place specific duties on criminal justice bodies in each police area to collect information and to share information about their compliance with the Victims’ Code with each other and with the relevant PCC, and to jointly review the information shared with other criminal justice bodies and with the relevant PCC for that police area. Subsections (2) and (3) contain powers for the Secretary of State to prescribe in regulations the descriptions of information that should be collected and/or shared for the overall purpose of keeping under review compliance with the Code, as well as to prescribe the manner in which information must be collected, shared, and reviewed. The intention is that the information to be collected and shared will include; data on criminal justice bodies’ compliance with the delivery of responsible services under the Victims’ Code and information relating to the experiences of service users. Subsections (4)(a) – (e) set out a non-exhaustive list of matters that the regulations may prescribe. This includes different information to be collected or shared by the different bodies and in relation to different services provided under the Code, information relating to the characteristics or experiences of users of those services that should be collected and shared by criminal justice bodies, the times at which or periods within which information must be collected, shared or reviewed, and the form that it should be collected and shared including as may be specified in a notice issued from time to time by the Secretary of State.

186 Subsection (5) places a duty on the Secretary of State to consult such persons as the Secretary of State considers appropriate before making regulations. This enables discretion for targeted consultation with those affected and with a specific interest, which it is anticipated may include, for example, criminal justice bodies subject to the duty.

187 Subsection (6) lists the bodies who are subject to both the duty to take reasonable steps to promote awareness of the Victims’ Code and to review their compliance with the Victims’ Code. In practice the specified criminal justice bodies will be the police, the Crown Prosecution Service, His Majesty’s Court and Tribunal Service, His Majesty’s Prison and Probation Service and its executive agencies (His Majesty’s Prison Service, the Probation Service and the Youth Custody Service), and Youth Offending Teams.

188 Subsection (7) defines the term "prison" for the purposes of subsection (6)(d).

Clause 7: Reviewing code compliance: elected local policing bodies

189 Subsection (1) places a duty on PCCs in each police area to keep under review whether and how the criminal justice bodies in their area are complying with the Victims’ Code. Police and Crime Commissioners must keep under review whether criminal justice bodies in their area provide services in accordance with the Victims’ Code (i.e. reviewing whether the services are being provided at all), as well as how they are delivering them (i.e. in what ways are the services provided).

190 Subsection (2)(a)-(c) places specific duties on PCCs to participate in the joint review of information provided to them by criminal justice bodies under clause 6(2)(b)(ii) and to provide the Secretary of State with such of that information as may be prescribed by the Secretary of State. Subsection (2)(c) sets out that PCCs must provide the Secretary of State with reports on matters in connection with the joint review, and the intention is to use the regulations to prescribe a list of set matters that the reports should include, such as key insights generated from the joint review and the sharing of best practices. Subsections (2) and (3) create powers for the Secretary of State to make regulations prescribing the information and reports to be shared with the Secretary of State. Subsection (4)(a) and (b) sets out a non-exhaustive list of matters that the regulations may include. This includes the times at which or periods within which information must be collected, shared, or reviewed and the form in which information or reports are to be provided by PCCs to the Secretary of State including as may be specified in a notice issued from time to time by the Secretary of State.

191 Subsection (5) places a duty on the Secretary of State to consult such persons as the Secretary of State considers appropriate before making regulations. This enables discretion for targeted consultation with those affected and with a specific interest, which it is anticipated may include, for example, PCCs subject to the duty.

Clause 8: Reviewing compliance: British Transport Police

192 Subsection (2) places a duty on the Chief Constable of the British Transport Police Force (BTP) to take reasonable steps to promote awareness of the Victims’ Code among users of relevant services and other members of the public. The inclusion of ‘reasonable’ gives bodies the flexibility to tailor their approach in different circumstances. This allows those working in the system to use their expertise to determine the most appropriate moment and method of sharing the Code.

193 Subsection (3) places a duty on the BTP and the British Transport Police Authority (BTPA) to keep under review BTP’s compliance with the Victims’ Code. As the BTP is a national force, it does not fall within PCC areas. The BTPA is therefore the appropriate alternative to the PCC for overseeing compliance with the Victims’ Code.

194 Subsections (4)(a)-(c) place specific duties on the BTP to collect information about its compliance with the Victims’ Code and to share information about its compliance with the Victims’ Code with the BTPA. The BTP is also required to jointly review the information shared with the BTPA. Regulations will be used to prescribe the information to be collected and/or shared and the intention is that it will include; data relating to BTP’s compliance with the delivery of responsible services under the Victims’ Code and information relating to the experiences of service users.

195 Subsection (5)(a)-(c) specify that BTPA must participate in the review of the information shared by BTP and provide the Secretary of State with such of that information as may be prescribed in regulations together with reports on matters in connection with any reviews as may be prescribed in regulations.

196 Subsection (7)(a)-(d) sets out a non-exhaustive list of the matters that regulations made under this clause may include. This includes prescribing the information to be collected or shared including different information in relation to different services, how information may be collected from victims with protected characteristics and different experiences, the times at which or periods within which information must be collected, shared or reviewed or that a report must be provided by the BTPA to the Secretary of State, and the form that information should be collected and shared in and the form in which information or a report must be provided by the BTPA to the Secretary of State including as may be specified in a notice issued from time to time by the Secretary of State.

197 Subsection (8) places a duty on the Secretary of State to consult such persons as the Secretary of State considers appropriate before making regulations. This enables discretion for targeted consultation with those affected and with a specific interest, which it is anticipated may include, for example, BTP and BTPA.

Clause 9: Code awareness and reviewing compliance: Ministry of Defence Police

198 Subsection (2) places a duty on the Chief Constable of the Ministry of Defence Police (MDP) to take reasonable steps to promote awareness of the victims’ code among users of relevant services and other members of the public. The inclusion of ‘reasonable’ gives bodies the flexibility to tailor their approach in different circumstances. This allows for those working in the system to use their expertise to determine the most appropriate moment and method of sharing the Code.

199 Subsection (3) places a duty on the MDP and the Secretary of State (in practice, this would be the Secretary of State for Defence) to keep under review MDP’s compliance with the Victims’ Code. As the MDP is a national force, it does not fall within PCC areas. The Secretary of State for Defence is therefore the appropriate alternative to the PCC for overseeing compliance with the Victims’ Code

200 Subsections (4) (a)-(c) specify that the Chief Constable of the MDP must collect information about their compliance with the Victims’ Code and share information about their compliance with the Victims’ Code with the Secretary of State (in practice, this would be the Secretary of State for Defence). The MDP is also required to jointly review the information shared with the Secretary of State. Regulations will be used to prescribe the information to be collected and/or shared. The Government intends that this will include; data relating to MDP’s compliance with the delivery of responsible services under the Victims’ Code and information relating to the experiences of service users.

201 Subsection (5)(a)-(b) require the Secretary of State (in practice, this would be the Secretary of State for Defence) to participate in a review of the information shared by MDP with them, and to prepare reports on matters in connection with any review as may be prescribed in regulations. Regulations issued by the Secretary of State will prescribe the information to be collected and/or shared and what reports in connection with the joint review of information should be prepared, including the matters upon which reports they should be prepared. It is intended that the information to be collected and shared will include; data on their compliance with the delivery of responsible services under the Victims’ Code and information relating to the experiences of service users.

202 A memorandum of understanding will be used to set out arrangements relating to the sharing of information, where it is anticipated that the MDP will review and share information with the Secretary of State for Defence who will then share information and reports with the Secretary of State for Justice.

203 Subsection (7)(a)-(d) sets out a non-exhaustive list of the matters that regulations made under this clause may include. This includes prescribing the information to be collected or shared including different information in relation to different services, how information may be collected from victims with protected characteristics and different experiences, the times at which or periods within which information must be collected, shared, or reviewed, and the form that it should be collected and shared in. It also includes the times at which or periods within which information must be collected, shared, or reviewed and the form in which information or a report is to be provided by the MDP to the Secretary of State including as may be specified in a notice issued from time to time by the Secretary of State.

204 Subsection (8) places a duty on the Secretary of State (in practice, this would be the Secretary of State for Justice) to consult such persons as the Secretary of State considers appropriate before making regulations. This enables discretion for targeted consultation with those affected and with a specific interest, which it is anticipated may include, for example the MDP.

Clause 10: Publication of code compliance information

205 Subsection (1) requires the Secretary of State to publish such compliance information as the Secretary of State considers will enable members of the public to assess the code compliance of the specified criminal justice bodies which provides services in a police area, the BTP and the MDP. Subsection (2)(a) specifies that "compliance information" refers to the information provided to the Secretary of State by PCCs, the BTPA and the MDP under clauses 7(2)(a), 8(5)(a) and 9(4)(b). Subsection (2)(b) defines the term "code compliance".

206 Subsection (3) defines "relevant area" as that which relates to a police force area for criminal justice bodies, or England and Wales for the British Transport Police and the Ministry of Defence Police.

207 Subsection (4)(a) and (b) sets out the frequency at which compliance information must be published and states that the form and manner of such publication is a matter for the Secretary of State as they consider appropriate.

208 Subsection (5) provides that PCCs must take reasonable steps to make the public in their local police area aware of the information published by the Secretary of State under subsection (1)(a) where that information relates to their own police force area. A similar duty is not required for the Secretary of State for Defence or BTPA as the data published by the Secretary of State for Justice will already present a national picture, ensuring parity between the non-territorial forces (with national jurisdiction) and territorial forces (whose data would be publicised by their PCC

Clause 11: Guidance on code awareness and reviewing compliance

209 Subsection (1) requires the Secretary of State to issue guidance about how the criminal justice bodies, PCCs, the Chief Constable of the BTP the BTPA and the Chief Constable of the MDP are to discharge their duties under Clauses 6-10. Those bodies must have regard to the guidance.

210 Subsections (2) sets out a non-exhaustive list of matters for which the guidance may make provision to support the relevant bodies in discharging their functions under Clauses 6-10. The purpose of this guidance is to advise on issues such as: appropriate circumstances and methods for promoting awareness of the Victims’ Code among service users and members of the public; advice on obtaining feedback from children and those with protected characteristics; likely processes for joint review of criminal justice body information, which is expected to take place within PCC-chaired Local Criminal Justice Boards, alongside parallel processes for the MDP and the BTP. It will also detail matters PCCs should consider when exercising their functions, referring to the interaction between their role and that of the Victims' Commissioner who has a general duty to keep under review the operation of the Code.

211 Subsection (3) requires that, before issuing any guidance, the Secretary of State must consult persons they consider appropriate. This enables discretion for targeted consultation with those affected and with a specific interest, which it is anticipated may include, for example relevant bodies who are subject to the duties under Clauses 6-10.

Collaboration in exercise of victim support functions

Clause 12: Duty to collaborate in exercise of victim support functions

212 Subsection (1) places a duty on a number of authorities (as defined in subsections (2) and (3)) working in a police area in England (the area for which a Police and Crime Commissioner is responsible as listed in schedule 1 to the Police Act 1996, as well as the metropolitan police district and the City of London police area) in the exercise of their functions in relation to relevant victim support services.

213 Subsection (1A) explains that, for the purposes of the subsection (1) duty, a relevant authority exercises a function in relation to relevant victim support services if it exercises the function in relation to the provision of such services, or the commissioning of such services provided by another person.

214 Subsections (2) and (3) explain that the relevant authorities are:

local policing bodies (which are defined within Schedule 1 to the Interpretation Act 1978 by reference to section 101 of the Police Act 1996 as meaning Police and Crime Commissioners, the Mayor’s Office for Policing and Crime in relation to the Metropolitan Police district and the Common Council in relation to the City of London police area);

Integrated Care Boards (established in accordance with Chapter A3 of Part 2 of the National Health Service Act 2006); and

tier one local authorities (as defined in the Domestic Abuse Act 2021 and meaning the county council or the district council where there is no county council, and the Greater London Authority rather than individual London boroughs, and the Council of the Isles of Scilly).

215 "Relevant victim support services" are defined in subsections (4), (5), (6) and (7) and are intended to describe some of the existing functions undertaken by the relevant authorities in relation to the commissioning and provision of victim support services. This duty will not include new requirements to commission services. Subsection (4) explains that relevant victim support services as services that are provided to support victims of domestic abuse, criminal conduct of a sexual nature or serious violence. Victim support services can include advice, recovery and support services, which could be medical, therapeutic, practical and/or emotional. This duty is intended to require the relevant authorities to target this collaborative effort towards victims of these categories of crime, which are particularly traumatic offences with a high number of victims each year.

216 Criminal conduct of a sexual nature refers to conduct that amounts to a criminal offence, and where a person has suffered harm as a result of this conduct, as set out in clause 1.

217 Subsection (5) defines domestic abuse and accommodation-based support for these purposes as having the same meaning as in sections 1 and 57 of the Domestic Abuse Act 2021 respectively.

218 Subsections (6) and (7) clarify the meaning of violence and serious violence. Violence for these purposes includes violence against property and threats of violence; and the decision as to whether violence is serious should take into account the maximum penalty for the offence and victim impact. The decision as to whether criminal conduct constitutes serious violence should be made by the relevant authorities. Terrorism within the meaning of the Terrorism Act 2000 is not included, because victims of terrorism are supported by the Home Office CONTEST strategy and funding commitments.

219 Subsection (8) is intended to ensure that the relevant authorities consider whether sharing or processing information may assist them in the effective discharge of functions under this section. As clause 26 makes clear, this does not require information to be disclosed if the disclosure would contravene the data protection legislation, but it clarifies the lawful basis for disclosure under that legislation.

220 The exercise of the duty will be organised by reference to police area because it is expected that as part of their role in commissioning wider victims’ services, PCCs may convene the collaborative activity in local areas and bring local partners together. The relevant authorities are those responsible for functions falling all or part within a police area. The relevant police area in each instance will be that attaching to the local policing body as defined in section 101(1) of the Police Act 1996, namely that listed in schedule 1 of the Police Act 1996), the Metropolitan Police district and the City of London police area. For integrated care boards and local authorities, these could fall fully or partly within the police area meaning at the local level that the same commissioning team may be required to liaise with one or more PCC as appropriate in relation to the effective discharge of this duty.

Clause 13: Strategy for collaboration in exercise of victim support functions

221 Subsection (1) provides that the duty in clause 12 includes a requirement that the relevant authorities in a police area in England work together to prepare and implement a joint local strategy to set out the aims and approach for commissioning relevant services, as well as setting out how local areas are meeting the duty requirements.

222 Subsection (2) requires the relevant authorities for a police area to make reasonable efforts to obtain the views of victims in their police area (meaning directly from victims themselves or via someone representing their views, such as an advocate) when preparing the strategy. They are also required to consult persons appearing to represent those providing victim support services; and such other persons as they consider appropriate (for example, the educational authority for the area or independent experts like the Victims’ Commissioner).

223 Subsection (3) requires the relevant authorities to also (a) assess the needs of victims in the police area for relevant victim support services; (b) assess whether; and how, those needs are being met by the services which are available (whether or not provided by the relevant authorities), and (c) have regard to those assessments when preparing their strategy. When making an assessment under subsection (3), the relevant authorities must have regard to the particular needs of victims who are children or who have protected characteristics.

224 Subsection (4) puts a requirement on the relevant authorities to publish the strategy, keep the strategy under review and revise it from time to time.

225 Subsection (5) ensures that subsections (1) to (4) also apply to the preparation of a revised strategy.

Clause 14: Guidance on collaboration in exercise of victim support functions

226 Clause 14 places the Secretary of State under a duty to issue guidance to the relevant authorities on how to carry out their obligations under clauses 12 and 13 and places the relevant authorities under a duty to have regard to that guidance. The purpose of this guidance is to support the relevant authorities in discharging their functions under these clauses and it will advise on issues such as local partnership structures that may work for collaboration and how joint activity may be convened in practice (such as through a convening role by PCCs), alongside information to support strategy production. Subsection (2) sets out that before issuing any guidance, the Secretary of State must consult persons they consider appropriate, which is expected to include interested stakeholders and practitioners to accurately reflect what further explanation and practical guidance may be beneficial.

Independent domestic violence and sexual violence advisors

Clause 15: Guidance about independent domestic violence and sexual violence advisors

227 Subsection (1) creates a duty on the Secretary of State to issue guidance about Independent Domestic Violence Advisors (IDVAs) and Independent Sexual Violence Advisors (ISVAs). As set out in subsection (4), this guidance will cover the key functions of these roles alongside recommended minimum expectations and best practice, including training and qualifications for advisors. Guidance will also detail how these roles support victims with specific needs, including a focus on supporting those with protected characteristics. It will also set out best practice for collaboration between ISVAs and IDVAs and those who have functions relating to victims, or any other aspect of the criminal justice system in order to effectively work together to meet the needs of victims.

228 Subsection (2) defines "IDVA" and "ISVA" for the purposes of this clause. "Independent Domestic Violence Advisor" is defined as a person who provides a relevant service to individuals who are victims by virtue of criminal conduct which constitutes domestic abuse. "Independent Sexual Violence Advisor" is defined as a person who provides a relevant service to individuals who are victims of criminal conduct which constitutes conduct of a sexual nature. These definitions are deliberately broad in view of the wide range of support provided by these advisors. The definitions describe (but do not limit) the scope of services which might be provided, but do not prescribe eligibility for advisor services.

229 Subsection (5) provides that IDVAs and ISVAs must have regard to the guidance when exercising their functions.

230 Subsection (6) creates a duty on any other person who has a function which is related to victims or any aspect of the criminal justice system to have regard to the guidance unless they are acting in a judicial capacity. This duty will have effect where such a function is being exercised, and the guidance is relevant to the exercise of that function.

Restricting parental responsibility where one parent kills the other

Clause 16: Restricting parental responsibility where one parent kills the other

231 Clause 16 amends the Children Act 1989 to place a requirement on the Crown Court to make a prohibited steps order (PSO) when the offender is sentenced in cases where one parent has been convicted of the manslaughter or murder of the other parent. The clause also places a duty on the local authority to make an application to the High Court or the family court to review the PSO.

232 Subsection (1) makes provision for the Bill to amend the Children Act 1989.

233 Subsection (2) amends section 8 of the Children Act 1989 to provide that the term ‘family proceedings’ (as it is defined in the Children Act 1989) does not include the proceedings when in the Crown Court covered under the new section 10A.

234 Subsection (3) inserts new Sections 10A and 10B into the Children Act 1989.

235 New Section 10A in the Children Act 1989 (inserted by subsection (3)) covers the requirement for the Crown Court to make a PSO:

a. Subsection (1) of new section 10A in the Children Act 1989 clarifies that the section applies where a child has two parents, at least one of whom has parental responsibility (PR) for them and that a parent who holds PR has been convicted of the murder or, in certain circumstances, the manslaughter of the other parent.

b. Subsection (2) sets out the circumstances where manslaughter convictions are within scope of the measure. Namely where a parent who holds PR has been convicted of the manslaughter due to reasons of loss of control (as provided for by Section 45 of the Coroners and Justice Act 2009) or diminished responsibility (as covered by Section 2 of the Homicide Act 1957).

c. Subsection (3) confirms that in cases where the provision applies the Crown Court is required to make a PSO when sentencing the offender.

d. Subsection (4) sets out the terms the PSO must contain to prevent the offender from taking any step in the exercise of their PR without the consent of the High Court or the family court and that order will remain in place until it is varied or discharged by either the High Court or the family court.

e. Subsection (5) confirms that a PSO should not be made by the Crown Court where there is already a PSO in place that already provides that no steps could be taken in exercise of a parent’s PR or if, in cases where the offender has been convicted of manslaughter, it would not be in the interests of justice to do so.

f. Subsection (6) makes clear that where the Crown Court is undertaking the duty placed on it by Section 10A and in the context of the Crown Court’s discretion in certain manslaughter cases, it should not apply the following sections of the Children Act 1989:

i. Section 1, which covers the elements the court must include in its consideration of a child’s welfare, such as the presumption that a child’s welfare will be furthered by the involvement of each parent in their lives.

ii. Section 7, which gives the court the power to commission the Children and Family Court Advisory and Support Service. (Cafcass), Cafcass Cymru or local authority social workers to deliver reports on the child’s welfare.

iii. Section 11, which covers a series of provisions relating to timetabling, orders and the provision of welfare reports.

g. Subsection (7) clarifies that where a PSO has been made it will not automatically stop where the affected parent is acquitted on appeal. Instead, provision is made in new section 10B for the family court to review any order in such circumstances.

h. Subsection (8) provides that a PSO made by the Crown Court is to be treated as an order of the family court for the purposes of section 31F(6) of the Matrimonial and Family Proceedings Act 1984 (which gives the family court the power to vary, suspend, rescind or revive any order it makes).

i. Subsection (9) provides that the Crown Court cannot hear applications for the enforcement of the PSO, these will instead be heard by the family court.

236 The new Section 10B in the Children Act 1989 (inserted by subsection (3)) confirms details of the duty that will be placed on the local authority:

a. Subsection (1) sets out it applies when a PSO made under new section 10A.

b. Subsection (2) confirms that where a PSO is made under the new section 10A the relevant local authority at the time the PSO is made must make an application for the family court to review the PSO. The references to ‘the court’ here is as provided for by Section 92(7) of the Children Act 1989 and means the High Court or the family court.

c. Subsection (3) provides the circumstances in which subsection (4) applies. Subsection (3) confirms that subsection (4) applies the where the Crown Court has made a PSO under the new Section 10A and the court has finished its deliberations and made a final order in relation to the PSO made by the Crown Court following the local authority’s application under subsection (2). Subsection (3) also provides that subsection (4) applies when the parent has been acquitted on appeal of the murder or manslaughter which resulted in the making of the PSO by the Crown Court. The meaning of relevant local authority is clarified by Subsection (7).

d. Subsection (4) confirms that the relevant local authority at the time of the verdict of the parent’s acquittal is entered must make an application for the family court to review the PSO.

e. Subsection (5) makes clear that the relevant local authority must make an application to the court to review the order as soon as would be reasonably practicable and in all cases within 14 days after the day on which either the order is made by the Crown Court, or, where the affected parent is acquitted on appeal, the verdict of acquittal was entered.

f. Subsection (6) provides that the Secretary of State has the power to change the length of the 14-day time limit by secondary legislation.

g. Subsection (7) defines the ‘relevant local authority’ as the local authority within whose area the child(ren) involved are ordinarily resident or the local authority within whose area the child(ren) is present. If there is no local authority which fits this description, no duty arises. Nothing in this subsection affects the law applicable to whether the court has jurisdiction to make any orders as a result of the review.

237 Subsection (4) of this Clause removes the following restrictions on making a PSO, as set out in the Children Act 1989:

a. That a PSO cannot be made in situations where the child(ren) in question is in the care of a local authority;

b. Where the PSO would end after the child(ren) involved has reached the age of 16; or

c. Where the child(ren) in question is over the age of 16.

238 Subsection (5) confirms that when a local authority has the power (under Section 33(3)(b) of the Children Act 1989) to decide how an offender can use their PR, the local authority may only use this power in order to stop them from taking steps that are not already prohibited by the PSO made under new section 10A.

239 Subsection 6(a) amends subsection 91(2) of the Children Act 1989 to provide that if a care order is made after the making of a PSO under new section 10A that PSO will not be discharged as would be the case for other section 8 orders.

240 Subsection 6(b) inserts new provision into section 91 of the Children Act 1989 that, where a PSO is already in place and a further PSO is made that specifies the affected parent may not exercise their parental responsibility, the first PSO will be discharged, save to the extent the first PSO also prohibits other actions not covered by the new PSO, for example in relation to other persons or children.

241 Subsection (7) amends the provisions of the Children Act 1989 in relation to the powers to make regulations under the Act consequential on the new Section 10B(6).

242 Subsection (8) provides that a PSO made by the Crown Court under section 10A does not fall within the definition of a ‘sentence’ for the purposes of section 50 of the Criminal Appeals Act 1968 and cannot therefore be appealed by the offender through the Crown Court. The question of whether the PSO should remain in place, be varied or discharged will be considered by the court following the application by the relevant local authority (any decision made by the family court would be subject to appeal through the usual routes).

Domestic Abuse Related Death Reviews

Clause 17: Establishment and conduct of domestic abuse related death reviews

243 This clause inserts new section 8A of the Domestic Violence, Crime and Victims Act 2004 ("the 2004 Act").

244 New section 8A provides for Domestic Abuse Related Death Reviews to replace Domestic Homicide Reviews under section 9 of the 2004 Act in England and Wales. Reviews can be commissioned following a homicide, a victim taking their own life after experiencing domestic abuse or in circumstances that are unexplained but give rise to concern. The intention behind providing for Domestic Abuse Related Death Reviews is to better reflect the range of deaths that are within scope of a review.

245 The Secretary of State may direct a review to take place where a death of a person has, or appears to have, resulted from domestic abuse towards the person within the meaning of the Domestic Abuse Act 2021. The definition of domestic abuse set out in the Domestic Abuse Act 2021 includes controlling or coercive behaviour, emotional abuse and economic abuse. It also clarifies that domestic abuse happens between individuals who are ‘personally connected’ via intimate or family relationships. The intention behind providing for a Domestic Abuse Related Death Review to be considered when a death has or appears to have resulted from domestic abuse as defined in the Domestic Abuse Act 2021 is to ensure Domestic Abuse Related Death Reviews contribute to better understanding of domestic abuse, as well as encourage consistency in decision making for reviews when domestic abuse has been identified.

246 The clause makes consequential provision to ensure that, in relation to Northern Ireland, domestic homicide reviews will continue to take place under section 9 of the 2004 Act.

Victims’ Commissioner

Clause 18: Commissioner for Victims and Witnesses

247 Clause 18 makes the following amendments to the Domestic Violence, Crime and Victims Act 2004 (the 2004 Act).

248 Subsection (2)(a) amends section 49(2)(c) of the 2004 Act to provide that the Victims’ Commissioner can make recommendations at any point in time and is not limited to just making recommendations in the annual report. Subsection (2)(b) inserts a provision which specifies that the Victims’ Commissioner can include within their reports recommendations to any authority within the Victims’ Commissioner’s remit and subsection (2)(c) inserts a requirement for the Victims’ Commissioner to lay their annual report before Parliament.

249 Subsection (3) inserts a requirement for criminal justice agencies or Government departments who are named directly in the Victim’s Commissioner’s reports to respond to any recommendations made to them. The relevant person(s) must prepare comments on any recommendations made in the report, with an explanation of:

a. the action that has been, or is proposed to be taken in response to the recommendation, or;

b. why action has not been, or is not proposed to be, taken in response to the recommendations.

250 The inserted wording provides that the relevant person(s) is the authority the recommendations are made about, or in the event the authority is a Government department with a responsible Minister, that Minister. It also specifies that the response must be published in a manner considered appropriate by the relevant person(s), within 56 days of the Victim’s Commissioner’s report being published and that anything published must be sent to the Victim’s Commissioner and, where the authority is not a Government department in the charge of a Minister, the Secretary of State.

251 Subsection (4) ensures that Schedule 9 to the 2004 Act includes the authorities that may be responsible for responding as per subsection (3) above.

Inspections by criminal justice inspectorates

Clause 19: His Majesty’s Chief Inspector of Prisons

252 Subsection (1) amends the Prisons Act 1952 with subsection (2) providing for the Commissioner for Victims and Witnesses to be added to the mandatory list of consultees on the inspectorates’ work programmes and frameworks.

253 Subsection (3) adds provisions to the Prison Act 1952 (which includes provision for His Majesty’s Chief Inspector of Prisons) to provide for the Secretary of State, Lord Chancellor, and the Attorney General to jointly require that the criminal justice inspectorates’ joint inspection programme includes provision for inspections, at specified times, of specified matters relating to the experiences and treatment of victims. It also sets out that "specified" means specified in the joint direction, and "victim" has the meaning given in clause 1 of the Bill.

Clause 20: His Majesty’s Chief Inspector of Constabulary

254 Subsection (1) amends the Police Act 1996 (further provision about inspectors of constabulary) with subsection (2) providing for the Commissioner for Victims and Witnesses to be added to the mandatory list of consultees on the inspectorates’ work programmes and frameworks.

255 Subsection (3) adds provisions to the Police Act 1996 (which includes provision for His Majesty’s Chief Inspector of Prisons) to provide for the Secretary of State, Lord Chancellor, and the Attorney General to jointly require that the criminal justice inspectorates’ joint inspection programme includes provision for inspections, at specified times, of specified matters relating to the experiences and treatment of victims. It also sets out that "specified" means specified in the joint direction, and "victim" has the meaning given in clause 1 of the Bill.

Clause 21: His Majesty’s Chief Inspector of the Crown Prosecution Service

256 Subsection (1) amends the Crown Prosecution Service Inspectorate Act 2000 (further provision about Chief Inspector) with subsection (2) providing for the Commissioner for Victims and Witnesses to be added to the mandatory list of consultees on the inspectorates’ work programmes and frameworks.

257 Subsection (3) adds provisions to the Crown Prosecution Service Inspectorate Act 2000 (which includes provision for His Majesty’s Chief Inspector of Prisons) to provide for the Secretary of State, Lord Chancellor, and the Attorney General to jointly require that the criminal justice inspectorates’ joint inspection programme includes provision for inspections, at specified times, of specified matters relating to the experiences and treatment of victims. It also sets out that "specified" means specified in the joint direction, and "victim" has the meaning given in clause 1 of the Bill.

Clause 22: His Majesty’s Chief Inspector of Probation for England and Wales

258 Subsection (1) amends the Criminal Justice and Court Services Act 2000 (further provision about the inspectorate) with subsection (2) providing for the Commissioner for Victims and Witnesses to be added to the mandatory list of consultees on the inspectorates’ work programmes and frameworks.

259 Subsection (3) adds provisions to the Criminal Justice and Court Services Act 2000 (which includes provision for His Majesty’s Chief Inspector of Prisons) to provide for the Secretary of State, Lord Chancellor, and the Attorney General to jointly require that the criminal justice inspectorates’ joint inspection programme includes provision for inspections, at specified times, of specified matters relating to the experiences and treatment of victims. It also sets out that "specified" means specified in the joint direction, and "victim" has the meaning given in clause 1 of the Bill.

Parliamentary Commissioner for Administration

Clause 23: Parliamentary Commissioner for Administration

260 Subsections (2) to (5) amend section 5 of the Parliamentary Commissioner for Administration Act 1967 through the following actions.

261 Subsection (3) provides for complainants who claim to have sustained injustice due to the maladministration of a Government department or other authority to which the Act applies, to go directly to the Commissioner, rather than going through a member of the House of Commons, where the complaint relates to their experience as a victim. Subsection (3) also provides for all other complaints to be referred to a member of the House of Commons in the usual way.

262 Subsection (4) provides for complainants who claim that a duty under the Victims’ Code has been breached or a person has failed to comply with a duty to victims under sections 35-44 of the Domestic Violence, Crime and Victims Act 2004, to go directly to the Commissioner, rather than going through a member of the House of Commons, where the complaint relates to their experience as a victim. Again, subsection (4) also provides for all other complaints to be referred to a member of the House of Commons in the usual way.

263 Subsection (5) provides for "victim" in the amended provisions to have the meaning given by clause 1 of this Bill.

264 Subsection (6) to (10) amends section 6 of the Parliamentary Commissioner for Administration Act 1967 through the following actions.

265 Subsection (7) inserts a new subsection which provides that a complaint may be made directly by a person authorised to act on behalf of the aggrieved person, regardless of whether it is made via a member of the House of Commons or directly by the complainant themselves.

266 Subsection (8) provides for complaints to be made by a personal representative or a member of the complainant’s family or another individual suitable to represent them, where a person is unable to authorise another person to act on their behalf. Subsection (9) adds a new subsection that provides that these are the only circumstances in which a complaint can be entertained when not made by the person aggrieved.

267 Subsection (10) removes another reference to a complaint being made via a member of the House of Commons. The existing requirement that a complaint must be made within 12 months from the first notice of the matters alleged in the complaint remains, except that now the complaint can be made directly to the Commissioner in some circumstances.

268 Subsections (11) to (14) amends section 10 of the Parliamentary Commissioner for Administration Act 1967 through the following actions.

269 Subsection (12) and (13) adjust where the report or statement on the complaint should be sent. This is to the person who made the complaint, but the amended provision also allows for the report or statement to also be sent to a member of the House of Commons with the consent of the person who makes the complaint.

270 Lastly, subsection (14) adjusts the existing provision which states that a report or statement by the Commissioner shall be absolutely privileged, to reflect the changes made in subsections (12) and (13).

Information relating to victims

Clause 24: Information relating to victims

271 Clause 24 amends the Police, Crime, Sentencing and Courts Act 2022 ("the 2022 Act"), to insert new sections 44A to 44E into that Act, relating to victim third party material requests.

272 New section 44A provides that a "victim information request" (a request for third party material relating to a victim, or person who is at risk of being a victim) may only be made when it is necessary and proportionate to the prevention, detection, investigation, or prosecution of a crime, and in pursuit of a reasonable line of enquiry. Additionally, the authorised persons must have a reason to believe that the information being requested is held by the third party. In making or deciding whether to make such a request the authorised person must have regard to the Code of Practice issued by the Secretary of State. It applies to specified law enforcement bodies who undertake and support investigations and protect vulnerable victims.

273 New section 44B requires the authorised person to provide the victims with a written notice that details what information is being sought, why it is being sought, and how the information will be dealt with once obtained when appropriate. The notice must be given on or before the date the request is made or, if that is not reasonably practicable, as soon as practicable after that date. Where the victim is a child or an adult without capacity, the notice must be given to their parent or guardian, or person representing the authority or organisation whose care they are in. If no such person is available, notice is to be given to any adult the authorised person considers appropriate.

274 New section 44C requires that the request to the third party to be made in writing, and specify what information is being sought, why it is being sought, and how the information will be dealt with once it has been obtained. The authorised person is not required to give full information about the crime, as this is often highly sensitive, but instead must provide a more general overview to the third party they are requesting material from.

275 New section 44D requires the Secretary of State to prepare a Code of Practice which sets out the duties and best practice for authorised persons when making a victim information request. Prior to issuing the Code, the Secretary of State must consult relevant bodies such as the Information Commissioner, the Commissioner for Victims and Witnesses and the Domestic Abuse Commissioner.

276 New section 44E defines "authorised person" and includes the police, British Transport Police, National Crime Agency and the Ministry of Defence Police. The Secretary of State may amend the list of authorised persons, by adding or removing persons or modifying the references to the persons (for example if their name changes), by regulations.

Clause 25: Information relating to victims: service police etc

277 Clause 25 amends the Police, Crime, Sentencing and Courts Act 2022 ("the 2022 Act"), to insert new section 44F. Section 44F applies the provisions set out in 44A – 44E to the service police (the Royal Navy Police, Royal Military Police, and Royal Air Force Police) and the Service Complaints Commissioner, with limited modifications, as if they were authorised persons i.e. they must comply with the same obligations.

Data Protection

Clause 26: Data protection

278 Clause 26 makes it clear that nothing in this Part of the Bill requires or authorises the processing of information if that processing would contravene the data protection legislation (where "data protection legislation" has the same meaning as in the Data Protection Act 2018).

Consequential provision for Part 1

Clause 27: Consequential provision

279 This clause repeals Chapter 1 of Part 3 of the Domestic Violence, Crime and Victims Act 2004 and makes various consequential amendments.

Part 2: Victims of Major Incidents

Meaning of "major incident" etc.

Clause 28: Meaning of "major incident" etc.

280 This clause defines key terms for this Part of the Bill including "major incident", "harm", "victims" and "advocate".

281 Subsection (2)(c) requires the Secretary of State to declare a major incident in writing. This is to avoid any doubt that a major incident has been declared for the purposes of this Part of the Act.

Clause 29 Appointment of a standing advocate

282 This clause requires the Secretary of State to appoint a standing advocate, which is a permanent position.

283 The standing advocate has particular functions, which are set out in subsection 2. These functions include advising the Secretary of State on how victims of major incidents and their treatment by public authorities in response to major incidents can be furthered; advising other advocates as to the exercise of their functions by, for example, developing best practice; and producing an annual report under section 30 to explain to the Secretary of State how they have discharged their functions.

284 The standing advocate could advise the Secretary of State under subsection 2(a)) on the most appropriate form of government review following a major incident so that lessons can be learned. This review could include a statutory or non-statutory inquiry.

285 Subsection (3) makes clear that the standing advocate may take steps to facilitate the exercise of their functions or the functions of another advocate; or they make take steps which are incidental or conducive to their functions or the functions of another advocate. In practice, this could involve the standing advocate taking steps to upskill, build relationships and prepare ahead of a major incident.

286 The Secretary of State must be satisfied that they are appointing a qualified person to be the standing advocate under subsection (4).

287 When advising the Secretary of State on the interests of victims of major incidents and their treatment by public authorities in response to major incidents under subsection 2(a), the standing advocate must have regard to the definition of public authority in subsection (5), which does not include the Security Service, the Secret Intelligence Service or the Government Communications Headquarters.

Appointment of advocates

Clause 30: Appointment of advocates in respect of major incidents

288 This clause provides for the appointment of an individual to act as an advocate for victims of a major incident. A reference to an advocate includes the standing advocate only if they have been appointed in respect of that incident under subsection (1), which is provided for in Clause 28 (6) .

289 The Secretary of State may appoint the standing advocate under this section to act as an individual advocate for victims of a major incident. If the Secretary of State wishes to appoint a different person, then they must be satisfied that the person is both qualified and appropriate to appoint in respect of the incident. Subsections 5-6 provide further guidance on these criteria.

Clause 31: Terms of appointment

290 This clause provides for the terms of appointment of an advocate, which includes both the standing advocate appointed under Clause 29 and an individual advocate appointed in respect of a major incident under section 25(1).

291 The clause also provides for other matters relating to the terms of appointment including termination, pay and secretarial support under subsections (2)-(4).

292 An advocate is not to be regarded as the servant or agent of the Crown, or as enjoying any status, immunity or privilege of the Crown under subsection (5).

Clause 32: Appointment of more than one advocate in respect of major incidents

293 This clause allows the Secretary of State to appoint more than one advocate in respect of the same major incident. This could be necessary for larger scale events with high numbers of victims to provide resilience, or where specific expertise is required.

294 If the Secretary of State appoints more than one advocate, the lead advocate must be appointed under must under subsection (2). An advocate must have regard to any directions given by the lead advocate as to how they are to exercise their functions in respect of the incident.

Functions and powers of advocates in respect of major incidents

Clause 33: Functions of advocates in respect of major incidents

295 This clause governs the functions of an advocate appointed in respect of a major incident under section 25(1).

296 Subsection 3 makes clear that an advocate can provide support to victims through a representative, subject to the conditions set out in the Act, namely that the representative is over 18, and would not, in representing victims, carry on a legal activity.

Clause 34: Role of advocates under Part 1 of the Coroners and Justice Act 2009

297 Clause 34 amends the Coroners and Justice Act 2009 to include an advocate as an interested person under section 47(2) of the Coroners and Justice Act 2009.

Functions and powers of advocates: general

Clause 35: Reports to the Secretary of State

298 This clause specifies the situations in which a report will be produced by an advocate. The Secretary of State can give notice requiring an advocate to report; or an advocate can report to the Secretary of State at their own discretion. If more than one advocate has been appointed in respect of the same major incident then only the lead advocate can report in relation to the incident.

Clause 36: Publication of reports

299 This clause clarifies how reports made by an advocate under Clause 35 are published; what information can be omitted from these reports; and the obligation on the Secretary of State to lay reports before Parliament.

300 The Secretary of State must publish any annual reports made by the standing advocate and any reports which they commission from the advocate under clause 35(1). There are, however, some reports which could fall outside of the obligation to publish and these are discretionary reports made by an advocate under clause 35(4A). These reports will only be published if the advocate requests in writing that the report should be published.

301 The Secretary of State can publish reports in a manner as they see fit under subsection (2), which could, for example, be on a Government website. The Secretary of State may omit material from a report before publishing under the criteria set out in subsection (3).

Clause 37: Information sharing and data protection

302 Clause 37 provides for the sharing of information, by an advocate; and for the sharing of information with an advocate.

303 An advocate may share information received in the exercise of their functions with specified persons under subsection (1). A person exercising functions of a public nature may share information with the advocate, as they consider appropriate, for the purposes of the advocate exercising their functions under subsection (2).

304 The clause does not compel the sharing of information by, or with, an advocate.

305 Subsection (6) makes clear that the data protection legislation applies to the sharing of information under this clause. The definitions in subsection (7) only apply to this clause of the Bill.

Guidance for advocates

Clause 38: Guidance for advocates

306 Clause 38 provides for the Secretary of State to issue guidance to advocates appointed in respect of a major incident under clause 30(1), which an advocate must have regard to when exercising their functions.

307 Subsection (2) makes clear that the guidance cannot be directed at any specific advocate or related to a specific major incident. In practice, this guidance must be general and could include considerations around identifying victims and proportionality in supporting multiple close family members of the deceased.

Consequential amendments

Clause 39: Part 2: Consequential amendments

308 This clause provides for the consequential amendments related to Part 2 of the Bill to insert an advocate appointed by the Secretary of State into the following pieces of legislation:

a. Schedule 1 to the Public Records Act 1958. This will place obligations on the advocates to properly protect and preserve records;

b. Schedule 2 to the Parliamentary Commissioner Act 1967. This brings the advocates under the remit of the Commissioner and allows for complaints to be made and investigated, adding a layer of accountability;

c. Schedule 1 to the House of Commons Disqualification Act 1975. This prohibits any sitting MPs from also being an advocate;

d. Schedule 1 to the Freedom of Information Act 2000. This will bring the advocates under the remit of freedom of information requests and the information commissioner; and

e. The public sector equality duty in section 149 of the Equality Act 2010 will apply to an advocate. The duty applies to public bodies listed in Schedule 19 to the Act, which is amended to include an advocate.

Part 3: Infected Blood Compensation Body

Clause 40: Compensation for victims of the infected blood scandal

309 This clause requires the Secretary of State to establish a body to administer a compensation scheme to victims of the infected blood scandal, within three months of passing the Act. For the purposes of the Act, a victim of the infected blood scandal is defined with reference to the Infected Blood Inquiry’s ("the Inquiry") Second Interim Report, as laid in Parliament on 19 April 2023, which made recommendations as to who should be eligible for admittance to such a scheme.

310 The clause sets out administrative requirements for the compensation scheme body, extending to the need to have regard to efficiency, speed and accessibility for applicants, the requirement for an independent appeals mechanism, and the involvement of those eligible for compensation by way of their inclusion in an advisory board. The body is to be chaired by a High Court or Court of Session Judge, acting as the sole decision maker.

Part 4: Prisoners

Public protection decisions

Clause 41: Public protection decisions: life prisoners

311 Clause 41 amends Chapter 2 of Part 2 of the 1997 Act to clarify the meaning and application of the existing statutory release test in the case of a life sentenced prisoner.

312 Subsection (1) of section 28ZA states that this new section applies when a decision-maker (defined in subsection (11) as the Board, the Upper Tribunal, or the High Court)) making a public protection decision about a life prisoner. Subsection (10) sets out that the test should be applied:

a. when the Parole Board is considering a life sentence offender for first release;

b. when the Parole Board is considering re-releasing a life sentence after they have been recalled on licence; and

c. where the Upper Tribunal or the High Court has been referred a case by the Parole Board at the direction of the Secretary of State and is exercising the new power to refuse release.

313 Subsection (2) of new section 28ZA sets out that a public protection decision is a decision as to whether it is no longer necessary for the protection of the public that a prisoner remains confined. This is the current wording of the public protection test for all life-sentenced offenders releases, no matter if first-instance or on a recall.

314 Subsection (3) sets out the new, more specific release test - that, when making a public protection decision, the decision maker must be satisfied that there would be no more than a minimal risk that the prisoner would commit a further offence that would cause serious harm if they were to be released, in order to release the offender.

315 Subsection (4) relates to the offences that are presumed to cause serious harm. Schedule 18B, which is inserted into the 2003 Act by subsection (9) of clause 42, provides for offences which are considered under the criminal justice regime to be serious in nature, for which offenders must or may currently receive serious or restrictive sentencing and release measures. This list turns a decision-maker’s mind to the types of offences which may be sufficient to meet the threshold of serious harm in the release test, should the decision-maker consider that the offender poses a risk of committing that offence. This deeming provision allows the decision-maker to take the circumstance of the case into account when deciding if commission of the offence would truly cause serious harm. It also does not preclude the decision-maker from considering other offences which may cause serious harm, which are not contained in the list, when determining if the offender should be released or not. New section 237A(13), and clause 42(8), enables this list to be amended by affirmative order.

316 Subsection (5) sets out specific criteria that must be taken into account by the decision-maker when assessing the prisoner for release. These provisions do not change in practice how the Board takes public protection decisions, or the Board’s discretion as to weight to give to each consideration. The list set out express considerations to underpin the question of whether the prisoner meets the threshold in subsection (3), for clarity. Subsection (6) ensures that the decision-maker must in particular have regard for the protection of any victim of the prisoner (restricted to the victim or victims of the offence to which the relevant sentence relates). Subsection (9) enables the decision-maker to take account of matters in addition to those covered in section 28ZA.

317 Subsection (12) is a minor technical provision that glosses new section 28ZA(1) for the release test for recalled life offenders. The test has the same meaning but is cast slightly differently. A ‘gloss’ is a non-textual modification that changes the effect of a provision, without changing the main text.

318 Clause 41(3) and (4) ensures that the new meaning and application applying to public protection decisions is referenced and applies in sections 28A and 28B of the 1997 Act, which govern the release of offenders who have committed murder, manslaughter or indecent image offences and have not provided information about their victims.

Clause 42: Public protection decisions: fixed-term prisoners

319 Clause 42 provides for the same changes as Clause 41 for fixed term (determinate) sentenced offenders released pursuant to Chapter 6 of Part 12 of the 2003 Act by inserting new sections 237A and 237B into the 2003 Act and making consequential changes. The operation of this clause is the same as clause 41, adjusted to the different provisions.

320 New section 237A will apply to all, either in whole or in part, to all public protection decisions taken under the 2003 Act (with the exception of the test as to whether or not a prisoner is suitable for automatic release, under section 255A(4)), as set out in subsection (10) and new section 237B:

i. 244ZC(4) - where the Secretary of State has referred a standard determinate sentenced offender determined to be dangerous to the Parole Board;

ii. 244ZC(5)(b) - 244ZC offenders, subject to subsequent parole reviews;

iii. 244A(4)(b) - in relation to offenders serving Sentences for Offenders of Particular Concern;

iv. 246A(6)(b) - in relation to offenders serving Extended Determinate Sentences;

v. 247A(5)(b) - in relation to terrorist prisoners serving determinate sentences;

vi. 255B(4A) - For Parole Board decisions on re-release of offenders who have been recalled to prison following release on licence:

vii. 255C(4A) - for Parole Board decisions on re-release of offenders who have been recalled to prison and are unsuitable for automatic release;

viii. 256A(4) - further annual reviews of offenders who are refused re-release after recall;

ix. 256AZBC(1) - Upper Tribunal or High Court release decision for determinate offenders referred by the Secretary of State;

x. Para 6(2) of Schedule 20B – discretionary conditional release prisoners sentenced under the Criminal Justice Act 1991;

xi. Para 15(4) of Schedule 20B – old extended sentences imposed under section 226 or 227;

xii. Para 25(3) of Schedule 20B – prisoners serving sentences imposed under the Criminal Justice Act 1967;

xiii. Para 28(3) of Schedule 20B - prisoners with an extended sentence certificate serving a sentence imposed under the Criminal Justice Act 1967.

321 Subsection (12) adds a gloss to subsection (2) so that the new public protection test applies to Parole Board decisions in sections 255B(4A), 255C(4A) or 256A(4) of the 2003 Act, which govern the re-release of recalled fixed-term offenders and subsequent annual reviews.

322 Clause 42(3) and (4) ensures that the new meaning and application applying to public protection decisions is referenced and applies in sections 246B and 246C of the 2003 Act, which govern the release of extended determinate sentenced offenders who have committed manslaughter or indecent image offences and have not provided information about their victims.

323 Clauses 42(5) and (6) apply the new public protection threshold in cases where the Secretary of State is deciding whether or not to discretionarily release different categories of recalled determinate offenders (known as executive re-release). The new public protection test applies, but not the list of mandatory considerations, as these are specific executive decisions where different considerations may apply.

324 Clause 42(7) amends section 256AZB, which is the power to change the test for re-release following recall by secondary legislation. It makes provision to clarify that the existing consequential power can be used to amend and modify the release test to be applied by the relevant court in making release decisions following referrals.

325 Clause 42(10) to (12) provide for the new public protection application and meaning to apply to the transitional cases where prisoners have committed manslaughter or indecent image offences, but have not provided information about their victims, in Schedule 20B of the 2003 Act.

Clause 43: Amendment of power to change test for release on licence of certain prisoners

326 Clause 42 amends section 128 of LASPO which allows for all parole release test provisions in Chapter 6 of Part 12 of the 2003 Act to be altered by secondary legislation. Clause 42(2) adds the new statutory release test provisions into section 128(3) so they may be amended by affirmative order. Clause 42(3) makes provision to clarify that the existing consequential power in section 128 can be used to amend and modify the application of the release test to be applied by the relevant court in taking release decisions following referrals.

Referral of release decisions to Secretary of State

Clause 444: Referral of release decisions: life prisoners

327 Clause 44 amends the Crime (Sentences) Act 1997 to create a ‘top-tier’ cohort of life-sentenced offenders, which the Secretary of State can direct the Parole Board to refer to the Upper Tribunal or the High Court to determine release.

328 Clause 44 inserts new sections 32ZAA, 32ZAB and 32ZAC into Part 2 of the 1997 Act.

329 New section 32ZAA applies where a life sentenced prisoner is having a parole review under section 28 or 32 of the 1997 Act, relating to the sentence imposed for a ‘top tier’ offence defined in new section 32ZAB. These offences are murder, rape, serious terrorism or terrorism connected offences, and causing or allowing the death of a child. They include the Northern Irish and Scottish equivalents of the offences, to capture offenders who are convicted in the devolved administrations but transferred to England and Wales to serve their sentence. Equivalent service offences are also included. Some of the ‘top tier’ offences do not carry a maximum penalty of life; however, owing to the historic availability of the IPP sentence for all these offences, they are included so as to ensure IPPs who have committed these offences who are being considered for release are treated consistently with those serving life sentences.

330 Subsections (1) and (5) provide that where the Parole Board decides to direct the release of a prisoner in the top tier cohort, the Secretary of State may then direct the Parole Board to refer the prisoner’s case to the ‘relevant court’ for review where the release of the prisoner would be likely to undermine public confidence in the parole system and where the Secretary of State considers that, if the case were referred, the relevant court may not conclude that the release test has been met. Subsections (5A) and (5B) provide that for cases involving material damaging to national security, the relevant court is the High Court. In all other cases, the relevant court is the Upper Tribunal.

331 Subsection (6) provides that the Secretary of State must notify the prisoner of the direction and the reasons for giving it, and that the prisoner will not be released pending review by the relevant court.

332 Subsections (7) and (8) clarify that this section applies to all relevant prisoners, including those currently serving sentences, but not including. those who have already had a release decision from the Board.

333 New section 32ZAC provides for release decisions to be made by the relevant court after referral. If the relevant court is satisfied that the public protection test is met (using the same criteria as the Parole Board has used under new section 28ZA), they must order the Secretary of State to release the prisoner on licence pursuant to the Board’s release direction, either subject to the same or different conditions as those imposed by the Board. If they are not so satisfied, they must quash the Parole Board’s direction under 32ZAC(1)(b) and the prisoner will remain confined.

334 New section 32ZAC(3) means that the date of an order quashing the Board’s direction is to be treated as the date on which the Board disposed of the case, for the purposes of calculating the prisoner’s next parole referral.

Clause 45: Referral of release decisions: fixed-term prisoners

335 Clause 45 provides for the same changes as Clause 44, for fixed term (determinate) sentenced offenders released pursuant to Chapter 6 of Part 12 of the 2003 Act by inserting new sections 256AZBA, 256AZBB and 256AZBC into Chapter 6 of Part 12 of the 2003 Act, and making consequential changes. The operation of this clause is the same as clause 44, adjusted to the different provisions.

336 New section 256AZBB, which sets out the top tier offences, does not include murder. This is because murder carries mandatory life sentence, so offenders sentenced for this offence will never be due for release under the 2003 Act. All other aspects of section 256AZBB correspond with provision in new section 32ZAB for life sentenced offenders. New section 256AZBC corresponds with new section 32ZAC for the purposes of the relevant court’s decision.

337 Subsection (5) of section 256AZBC glosses the public protection test set out in section 256AZBC(3) for recalled fixed-term offenders who make representations on their recall and are subsequently referred to the Board by the Secretary of State under section 255B(4A) of the 2003 Act.

338 Clause 45(2) clarifies that, where the release decision is that of the relevant court rather than the Parole Board, the requirement for the Secretary of State to release as soon as reasonably practicable provided for in section 256AZC applies.

Licence conditions on release following referral

Clause 46: Licence conditions of life prisoners released following referral

339 When the relevant court releases a prisoner, it will be responsible for setting their licence conditions (either in line with the Board’s conditions, or differently if it thinks fit) under new section 32ZAC(2). Where release is directed, new section 31(3A) of the 1997 Act requires the Secretary of State to include the licence conditions directed by the relevant court on first release and enables them to subsequently vary and cancel those conditions as part of the normal process of managing an offender’s licence as their circumstances change.

Clause 47: Licence conditions of fixed-term prisoners released following referral

340 Clause 47 amends section 250 of the 2003 Act, which prescribes responsibility for setting and varying licence conditions for fixed-term prisoners, on initial release from prison and subsequently in the community. The changes ensure that, on first release following a direction to release by the relevant court, the Secretary of State must include only those bespoke conditions directed by the relevant court in the offender’s licence under new section 256AZBC(2), consistent with the existing provisions on Board release, but then may subsequently vary and cancel those conditions as part of the offender’s management in the community.

Imprisonment or detention for public protection: termination of licences

Clause 48: Imprisonment or detention for public protection: termination of licences

341 Clause 48 amends sections 31A and 32 of the Crime (Sentences) Act 1997 regarding the termination of licence and consequently the ending of the sentence for offenders subject to an imprisonment for public protection (IPP) sentence.

342 Subsection (2)(a) updates the language on the current subsection (2) of section 31A to modernise the drafting using "must" instead of "shall" which provides more certainty. Subsection (2) as it stands requires the Secretary of State to give effect to a Parole Board direction that a licence ceases to have effect.

343 Subsection (2)(b) amends the subsection 31A(3) which is the trigger for the Secretary of State to refer prisoners to the Parole Board for consideration of licence termination at the end of the qualifying period. Subsection (2)(b) removes the requirement for the Secretary of State to refer an IPP offender to the Parole Board for an annual review of their licence termination.

344 Subsection (2)(c) amends the test to be applied by the Parole Board when considering whether to terminate an IPP offender’s licence. The test includes a clear presumption that the Parole Board must direct the Secretary of State to make an order that the licence is to cease to have effect unless it is satisfied that it is necessary for the protection of the public that the licence should remain in force.

345 Subsection (2)(d) amends the way in which offenders who have been recalled to prison, and have met the qualifying period, are to have their licence terminations considered. This subsection omits previous subsections (4A) to (4C) which dealt with termination of IPP licences for offenders serving a recall and inserts subsections (4D) to (4H)

a. Subsection (4D) provides that the Secretary of State cannot refer a case to the Parole Board for consideration of licence termination at the end of the qualifying period if the prisoner is in prison serving a recall.

b. Subsections (4E) and (4F) provide that the Parole Board will consider whether to release a recalled IPP offender unconditionally (without a licence) only when it has first determined that a recalled IPP offender can be released. A recalled prisoner’s licence termination is therefore contingent on the Parole Board first deciding that the prisoner is also safe for release from prison. Subsection (4F) also ensures that the Parole Board consider the termination of the licence under the clear presumptive test.

c. Subsection (4G) makes consequential amendment to section 28 and 32 of the 1997 Act to ensure that where a licence is terminated by the Parole Board that any subsequent release under those sections are then unconditional (without licence).

d. Subsection (4H) provides that the Secretary of State must order that a licence is to cease to have effect if the qualifying period has expired and the prisoner’s licence has remained in place for a continuous period of two years (i.e. without the prisoner having been recalled to prison in that time) ending on the commencement of this provision or any continuous two year period afterwards. If an IPP offender has been recalled, the two year period will reset on their next release from prison by the Parole Board.

346 Subsection 2(e) changes the qualifying period for an offender who has been released on licence to have their licence considered for termination by the Parole Board from ten years after first release to three years. This qualifying period counts from the first release from prison and does not reset if an IPP offender is recalled to prison.

347 Subsection (2)(f) gives the Secretary of State the power to amend the qualifying period by regulations subject to affirmative parliamentary procedure. 

348 Subsection (3) disapplies section 32 of the 1997 Act for IPP offenders in respect of whom the Secretary of State is required to make an order terminating their licence under section 31A so that it is clear they cannot be recalled for breach of licence after the requirement to terminate but before the order is made.

Application of Convention rights

Clause 49: Section 3 of the Human Rights Act 1998: life prisoners

Clause 50: Section 3 of the Human Rights Act 1998: fixed term prisoners

Clause 51: Section 3 of the Human Rights Act 1998: powers to change release test

349 Clauses 49, 50 and 51disapply section 3 of the Human Rights Act 1998 (HRA) in relation to Chapter 2 of Part 2 of the 1997 Act, Chapter 6 of Part 12 of the 2003 Act, section 128 of LASPO, and all secondary legislation made under these provisions (‘the release legislation’). These provisions span the legislative framework in England and Wales relating to release, licences, supervision, and recall of indeterminate and determinate sentenced offenders.

350 Section 3 of the HRA requires primary and secondary legislation to be read and given effect to in a way that is compatible with the Convention rights, "so far as it is possible to do so".

351 When operated by the courts, section 3 requires them to go further than they usually would when interpreting legislation. This has required, at times, the courts to depart from the unambiguous meaning of the legislation. It has also required the courts to adopt interpretations of legislation which depart from the intention of Parliament when that legislation was passed – see, eg, Ghaidan v Godin-Mendoza [2004] UKHL 30, para 31).

352 Further, the requirement in section 3 is not merely for courts. Anyone, including public authorities, applying legislation has a duty under section 3 to interpret it in a compatible way.

353 By removing this duty in respect of the release legislation, it ensures that, should the courts – or others – find these provisions incompatible, they will apply the section as it is intended to be applied, and not use section 3 to alter the interpretation. In such cases, declarations of incompatibility under section 4 HRA will be available.

Clause 52: Application of certain convention rights in prisoner release cases

354 Clause 52 sets out the approach courts should take when considering a decision that has been made concerning the release of a prisoner and where that decision has been challenged on human rights grounds.

355 When considering such a challenge, which could arise via a judicial review, a habeas corpus application, a private law damages claim or any other legal challenge where a Court is required to consider the Convention rights of a person in relation to a release decision, the court must give the greatest possible weight to the importance of reducing the risk to the public from those persons who have been convicted of a criminal offence. Requiring the courts to give the greatest possible weight to this factor reinforces the precautionary approach and means that public protection will be given appropriate consideration in any balancing exercise.

The Parole Board

Clause 53: Parole Board rules

356 Clause 53(2) amends the power in section 239 of the 2003 Act to make procedural Rules about how the Board conducts proceedings (the Parole Board Rules) to add the power to prescribe via the Rules that parole cases to be dealt with by Parole Board members with particular skills or experience.

Clause 54: Parole Board membership

357 Clause 54(1) through (4) amend paragraph 2 of Schedule 19 of the 2003 Act which deals with membership of the Parole Board. It amends the membership to provide for the position of Vice Chair and a member with law enforcement experience (defined as the "prevention, detection or investigation of offences"). Clause 54 (5) sets out new terms of appointment for the chair and vice-chair of the Parole Board to be inserted into paragraph 2. The Chair and Vice Chair must be appointed for an initial term of five years and may be re-appointed for one further five-year term. Either postholder may resign from their role by providing notice in writing to the Secretary of State. New subparagraphs (2D) and (2E) prevent both the Chair and Vice chair from re-appointment to that same role, other than if the Secretary of State decides to re-appoint them following their first term in office.

358 New subparagraph (2C) enables the Secretary of State to remove the Chair from their role, if necessary to do so, in order to maintain public confidence in the Parole Board.

359 New paragraph 2A(1) sets out the new functions of the Chair, which are focused on general leadership, ensuring a strategy is in place, public awareness, administrative efficiency and effectiveness.

360 Paragraph 2A(3) and (5) prohibits the Chair from any involvement in individual parole cases or functions of the Board relating to those cases, by providing the Chair must not play any part in dealing with individual parole cases, including attending or playing any part in proceedings of the Board in relation to those cases, or otherwise seek to influence recommendations of Board members in those cases. This would include all any matters which interfere with the judicial decision-making of individual members, including determining which Board members participate in those proceedings. The preclusion of the new role of the Chair from involvement in any functions which could be perceived to relate to the discharge of judicial functions by the Parole Board is necessary to permit the power of dismissal to operate compatibly with Article 5(4) of the Convention.

361 Paragraph 2A(4) enables the Board to delegate any of the chairman’s functions to another member or an employee of the Board.

362 Clause 54(8) consequentially amends paragraph 4 of Schedule 19 to provide that arrangements relating to meetings of the Board are now subject to the restrictions in new paragraph 2A.

363 Clause 54(10) provides that the new measures in clause 54 will not apply to the post-holder of the role of Chair on introduction of the Bill.

Whole life prisoners prohibited from forming a marriage or civil partnership

Clause 55: Whole life prisoners prohibited from forming a marriage

364 Clause 54(1) amends the Marriage Act 1949 by inserting a new section to prohibit whole life prisoners from marrying unless they have permission from the Secretary of State.

365 New section 2A(1) sets out which prisoners may not marry, with more detail as to the meaning and interpretation of specific terms provided in paragraph 2A (5) and (6). To be in scope an individual must fulfil two criteria.

366 Firstly, they must be serving a life sentence in a prison or other place of detention (such as a Young Offender Institution or secure hospital). This would exclude prisoners released on licence on compassionate grounds under section 30(1) of the Crime (Sentences) Act 1997.

367 Secondly, they must be subject to either:

a. A court order that they should not be eligible for release by the Parole Board under the usual release arrangements for life sentence prisoners; or

b. A mandatory life sentence received before December 2003, having been notified in writing before that date that the Secretary of State did not intend that they should ever be released on licence; and the High Court must have not since ordered that the early release provisions should instead apply.

368 New subsections 2A(2) and (3) set out a process for exemptions to be granted by written permission from the Secretary of State. The Secretary of State may only give permission for a whole life prisoner to marry if satisfied that this is justified by exceptional circumstances

369 New subsection 2A(4) establishes that if a whole life prisoner does manage to marry without written permission from the Secretary of State, their marriage will not be legally valid.

Clause 56: Whole life prisoners prohibited from a forming a civil partnership

370 This clause amends the Civil Partnership Act 2004 to prohibit whole life prisoners from forming civil partnerships unless they have permission from the Secretary of State.

371 Subsection (2) adds whole life prisoners to the list of people not eligible to register as civil partners.

372 The other provisions of this clause replicate provisions set out in clause 55 as to the exemptions process and prisoners in scope.

Part 4: General

Clause 57: Financial provision

373 This clause creates a financial provision to allow any expenditure incurred or attributable once the measures in this Bill become an Act is to be paid out of money provided by Parliament.

Clause 58: Power to make a consequential provision

374 This creates a power for the Secretary of State to make any consequential amendments that may be required to existing law to ensure consistency in the statute book and operability of these provisions contained in clauses 16, 55 and 56 of this Bill.

Clause 59: Regulations

375 Clause 59 sets out that regulations made under the powers in the Bill will be made by statutory instrument and may make different provision for different purposes. This may include provisions that are supplementary, incidental, saving or transitional.

376 Clause 58(1)(a) provides that regulations under the Act may make different provision for different purposes.

377 Subsection (3) provides for the affirmative parliamentary procedure to apply to regulations made under clause 58, if those regulations amend, repeal, or revoke primary legislation.

378 Subsections (4) and (5) provide for the negative parliamentary procedure to apply to any other regulations made under powers in the Bill, excluding regulations provided for in clause 61 regarding commencement and transitional provisions for the Bill, which are not subject to parliamentary procedure.

379 This clause does not apply to commencement regulations but clause 60(4) makes equivalent provision for commencement regulations under that clause.

Clause 60: Extent

380 Clause 60 sets out that the measures in the Bill extend to England and Wales with the following exceptions:

a. Clause 17 (Domestic abuse related death reviews) which extends to England and Wales and Northern Ireland;

b. Clauses 23 and 27(3) – which amend the Parliamentary Commissioner Act 1967 and have the same extent as that Act;

c. Clause 25 (information relating to victims: service police etc.) extends to England and Wales, Scotland and Northern Ireland.

d. Clause 39(1) – (4) (Part 2: consequential amendments) extend to England and Wales, Scotland and Northern Ireland. Subsection (5) of that clause extends to England and Wales and Scotland.

Clause 61: Commencement

381 Clause 61(1) and (2) provide that all of the provisions in the Bill will come into force on such day as the Secretary of State appoints via regulations, apart from Part 4 of the Bill which will come into force on the day on which the Bill becomes an Act of Parliament.

382 Subsection (3) provides for the Secretary of State to make transitional or saving provision by way of regulations. Regulations for this purpose may make different provision for different purposes and will be made by statutory instrument.

Clause 62: Short title

383 This clause provides that the short title of the Bill will be the Victims and Prisoners Act 2023, once the Bill becomes an Act.

 

Prepared 7th December 2023