Domestic Violence, Crime and Victims Bill [HL]

House of Commons

Session 2003 - 04
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Other Bills before Parliament

Domestic Violence, Crime and Victims Bill [HL]

Domestic Violence, Crime and Victims Bill [HL]
Part 1 — Domestic violence etc
1

[NOTE: The words marked in bold type were inserted by the Lords to avoid
questions of privilege.]
A
Bill
To
Amend Part 4 of the Family Law Act 1996, the Protection from Harassment
Act 1997 and the Protection from Harassment (Northern Ireland) Order 1997;
to make provision about homicide; to make common assault an arrestable
offence; to make provision about alternative verdicts; to provide for a
procedure under which a jury tries only sample counts on an indictment; to
make provision about findings of unfitness to plead and about persons found
unfit to plead or not guilty by reason of insanity; to amend section 58 of the
Criminal Justice Act 2003 and to amend Part 12 of that Act in relation to
intermittent custody; and to make provision in relation to victims of offences,
witnesses of offences and others affected by offences.
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Part 1
Domestic violence etc
Amendments to Part 4 of the Family Law Act 1996
1
Breach of non-molestation order to be a criminal offence
In Part 4 of the Family Law Act 1996 (c. 27) (family homes and domestic
5
violence), after section 42 insert—
“42A
Offence of breaching non-molestation order
(1)
A person who without reasonable excuse does anything that he is
prohibited from doing by a non-molestation order is guilty of an
offence.
10
(2)
In the case of a non-molestation order made by virtue of section 45(1),
a person can be guilty of an offence under this section only in respect of

Bill 83 53/3

Domestic Violence, Crime and Victims Bill [HL]
Part 1 — Domestic violence etc
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conduct engaged in at a time when he was aware of the existence of the
order.
(3)
Where a person is convicted of an offence under this section in respect
of any conduct, that conduct is not punishable as a contempt of court.
(4)
A person cannot be convicted of an offence under this section in respect
5
of any conduct which has been punished as a contempt of court.
(5)
A person guilty of an offence under this section is liable—
(a)
on conviction on indictment, to imprisonment for a term not
exceeding five years, or a fine, or both;
(b)
on summary conviction, to imprisonment for a term not
10
exceeding 12 months, or a fine not exceeding the statutory
maximum, or both.
(6)
A reference in any enactment to proceedings under this Part, or to an
order under this Part, does not include a reference to proceedings for
an offence under this section or to an order made in such proceedings.
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“Enactment” includes an enactment contained in subordinate
legislation within the meaning of the Interpretation Act 1978 (c. 30).”
2
Additional considerations if parties are cohabitants or former cohabitants
(1)
Section 41 of the Family Law Act 1996 (c. 27) (which requires a court, when
considering the nature of the relationship of cohabitants or former cohabitants,
20
to have regard to their non-married status) is repealed.
(2)
In section 36(6)(e) of that Act (court to have regard to nature of parties’
relationship when considering whether to give right to occupy to cohabitant or
former cohabitant with no existing right), after “relationship” insert “and in
particular the level of commitment involved in it”.
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3
“Cohabitants” in Part 4 of 1996 Act to include same-sex couples
In section 62(1)(a) of the Family Law Act 1996 (definition of “cohabitant” for the
purposes of Part 4 of that Act), for the words after ““cohabitants are” substitute
“two persons who, although not married to each other, are living together as
husband and wife or (if of the same sex) in an equivalent relationship; and”.
30
4
Extension of Part 4 of 1996 Act to non-cohabiting couples
In section 62(3) of the Family Law Act 1996 (definition of “associated” persons
for the purposes of Part 4 of that Act), after paragraph (e) insert—
“(ea)
they have or have had an intimate personal relationship with
each other which is or was of significant duration;”.
35
Causing or allowing the death of a child or vulnerable adult
5
The offence
(1)
A person (“D”) is guilty of an offence if—
(a)
a child or vulnerable adult (“V”) dies as a result of the unlawful act of a
person who—
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(i)
was a member of the same household as V, and

Domestic Violence, Crime and Victims Bill [HL]
Part 1 — Domestic violence etc
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(ii)
had frequent contact with him,
(b)
D was such a person at the time of that act,
(c)
at that time there was a significant risk of serious physical harm being
caused to V by the unlawful act of such a person, and
(d)
either D was the person whose act caused V’s death or—
5
(i)
D was, or ought to have been, aware of the risk mentioned in
paragraph (c),
(ii)
D failed to take such steps as he could reasonably have been
expected to take to protect V from the risk, and
(iii)
the act occurred in circumstances of the kind that D foresaw or
10
ought to have foreseen.
(2)
For the purposes of subsection (1)(d)(ii), in determining the reasonableness of
the steps which D could have been expected to take, the court shall have
particular regard to the extent to which D has been subjected to domestic
violence or is in fear of being subjected to domestic violence.
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(3)
The prosecution does not have to prove whether it is the first alternative in
subsection (1)(d) or the second (sub-paragraphs (i) to (iii)) that applies.
(4)
If D was not the mother or father of V—
(a)
D may not be charged with an offence under this section if he was
under the age of 16 at the time of the act that caused V’s death;
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(b)
for the purposes of subsection (1)(d)(ii) D could not have been expected
to take any such step as is referred to there before attaining that age.
(5)
For the purposes of this section—
(a)
a person is to be regarded as a “member” of a particular household,
even if he does not live in that household, if he visits it so often and for
25
such periods of time that it is reasonable to regard him as a member of
it;
(b)
where V lived in different households at different times, “the same
household as V” refers to the household in which V was living at the
time of the act that caused V’s death.
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(6)
For the purposes of this section an “unlawful” act is one that—
(a)
constitutes an offence, or
(b)
would constitute an offence but for being the act of—
(i)
a person under the age of ten, or
(ii)
a person entitled to rely on a defence of insanity.
35

Paragraph (b) does not apply to an act of D.
(7)
In this section—

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

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

“serious” harm means harm that amounts to grievous bodily harm for the
40
purposes of the Offences against the Person Act 1861 (c. 100);

“vulnerable adult” means a person aged 16 or over whose ability to
protect himself from violence, abuse or neglect is significantly impaired
through physical or mental disability or illness, through old age or
otherwise.
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Domestic Violence, Crime and Victims Bill [HL]
Part 1 — Domestic violence etc
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(8)
A person guilty of an offence under this section is liable on conviction on
indictment to imprisonment for a term not exceeding 14 years or to a fine, or to
both.
6
Evidence and procedure: courts-martial
(1)
Section 6(1), (2) and (4) has effect in relation to proceedings before courts-
5
martial with the following adaptations.
(2)
A reference to an offence of murder or manslaughter or an offence under
section 5 is to be read as a reference to an offence under—
(a)
section 70 of the Army Act 1955 (3 & 4 Eliz. 2 c. 18),
(b)
section 70 of the Air Force Act 1955 (3 & 4 Eliz. 2 c. 19), or
10
(c)
section 42 of the Naval Discipline Act 1957 (c. 53),

for which the offence referred to in section 6 is the corresponding civil offence
(within the meaning of that Act).
(3)
A reference to the court or jury is to be read as a reference to the court.
Domestic homicide reviews
15
7
Establishment and conduct of reviews
(1)
In this section “domestic homicide review” means a review of the
circumstances in which the death of a person aged 16 or over has, or appears
to have, resulted from violence, abuse or neglect by—
(a)
a person to whom he was related or with whom he was or had been in
20
an intimate personal relationship, or
(b)
a member of the same household as himself,

held with a view to identifying the lessons to be learnt from the death.
(2)
The Secretary of State may in a particular case direct a specified person or body
within subsection (4) to establish, or to participate in, a domestic homicide
25
review.
(3)
It is the duty of any person or body within subsection (4) establishing or
participating in a domestic homicide review (whether or not held pursuant to
a direction under subsection (2)) to have regard to any guidance issued by the
Secretary of State as to the establishment and conduct of such reviews.
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(4)
The persons and bodies within this subsection are—
(a)
in relation to England and Wales—

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

local authorities;

local probation boards established under section 4 of the Criminal
35
Justice and Court Services Act 2000 (c. 43);

Strategic Health Authorities established under section 8 of the
National Health Service Act 1977 (c. 49);

Primary Care Trusts established under section 16A of that Act;

Local Health Boards established under section 16BA of that Act;
40

NHS trusts established under section 5 of the National Health
Service and Community Care Act 1990 (c. 19);
(b)
in relation to Northern Ireland—

Domestic Violence, Crime and Victims Bill [HL]
Part 2 — Criminal procedure etc
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the Chief Constable of the Police Service of Northern Ireland;

the Probation Board for Northern Ireland;

Health and Social Services Boards established under Article 16 of
the Health and Personal Social Services (Northern Ireland)
Order 1972 (S.I. 1972/1265 (N.I. 14));
5

Health and Social Services trusts established under Article 10 of
the Health and Personal Social Services (Northern Ireland)
Order 1991 (S.I. 1991/194 (N.I. 1)).
(5)
In subsection (4)(a) “local authority” means—
(a)
in relation to England, the council of a district, county or London
10
borough, the Common Council of the City of London and the Council
of the Isles of Scilly;
(b)
in relation to Wales, the council of a county or county borough.
(6)
The Secretary of State may by order amend subsection (4) or (5).
Part 2
15
Criminal procedure etc
Assault, harassment etc
8
Common assault to be an arrestable offence
(1)
In Schedule 1A to the Police and Criminal Evidence Act 1984 (c. 60) (specific
offences which are arrestable offences), before paragraph 15 (but after the
20
heading “Criminal Justice Act 1988”) insert—
“14A
Common assault.”
(2)
In Article 26(2) of the Police and Criminal Evidence (Northern Ireland) Order
1989 (S.I. 1989/1341 (N.I. 12)) (specific offences which are arrestable offences),
after paragraph (m) insert—
25
“(n)
an offence under section 42 of the Offences against the Person
Act 1861 (c. 100) (common assault etc).”
9
Common assault etc as alternative verdict
In section 6 of the Criminal Law Act 1967 (c. 58) (trial of offences), after
subsection (3) (alternative verdicts on trial on indictment) insert—
30
“(3A)
For the purposes of subsection (3) above an offence falls within the
jurisdiction of the court of trial if it is an offence to which section 40 of
the Criminal Justice Act 1988 applies (power to join in indictment count
for common assault etc), even if a count charging the offence is not
included in the indictment.
35
(3B)
A person convicted of an offence by virtue of subsection (3A) may only
be dealt with for it in a manner in which a magistrates’ court could have
dealt with him.”