House of Commons portcullis
House of Commons
Session 2003 - 04
Internet Publications
Other Bills before Parliament

Domestic Violence, Crime and Victims Bill [HL]


Domestic Violence, Crime and Victims Bill [HL]
Part 2 — Criminal procedure etc

6

 

10      

Restraining orders: England and Wales

(1)   

In section 5 of the Protection from Harassment Act 1997 (c. 40) (power to make

restraining order where defendant convicted of offence under section 2 or 4 of

that Act), in subsection (1) omit “under section 2 or 4”.

(2)   

After subsection (4) of that section insert—

5

“(4A)   

Any person mentioned in the order is entitled to be heard on the

hearing of an application under subsection (4).”

(3)   

After subsection (6) of that section insert—

“(7)   

A court dealing with a person for an offence under this section may

vary or discharge the order in question by a further order.”

10

(4)   

After that section insert—

“5A     

Restraining orders on acquittal

(1)   

A court before which a person (“the defendant”) is acquitted of an

offence may, if it considers it necessary to do so to protect a person from

harassment by the defendant, make an order prohibiting the defendant

15

from doing anything described in the order.

(2)   

In proceedings under this section both the prosecution and the defence

may lead, as further evidence, any evidence that would be admissible

in proceedings for an injunction under section 3.

(3)   

Subsections (3) to (7) of section 5 apply to an order under this section as

20

they apply to an order under that one.

(4)   

Where the Court of Appeal allow an appeal against conviction they

may remit the case to the Crown Court to consider whether to proceed

under this section.

(5)   

Where—

25

(a)   

the Crown Court allows an appeal against conviction, or

(b)   

a case is remitted to the Crown Court under subsection (4),

   

the reference in subsection (1) to a court before which a person is

acquitted of an offence is to be read as referring to that court.

(6)   

A person made subject to an order under this section has the same right

30

of appeal against the order as if—

(a)   

he had been convicted of the offence in question before the court

which made the order, and

(b)   

the order had been made under section 5.”

11      

Restraining orders: Northern Ireland

35

(1)   

In Article 7 of the Protection from Harassment (Northern Ireland) Order 1997

(S.I. 1997/1180 (N.I. 9)) (power to make restraining order where defendant

convicted of offence under Article 4 or 6 of that Order), in paragraph (1) omit

“under Article 4 or 6”.

(2)   

After paragraph (4) of that Article insert—

40

“(4A)   

Any person mentioned in the order is entitled to be heard on the

hearing of an application under paragraph (4).”

 

 

Domestic Violence, Crime and Victims Bill [HL]
Part 2 — Criminal procedure etc

7

 

(3)   

After paragraph (6) of that Article insert—

“(7)   

A court dealing with a person for an offence under this Article may

vary or discharge the order in question by a further order.”

(4)   

After that Article insert—

“7A     

Restraining orders on acquittal

5

(1)   

A court before which a person (“the defendant”) is acquitted of an

offence may, if it considers it necessary to do so to protect a person from

harassment by the defendant, make an order prohibiting the defendant

from doing anything described in the order.

(2)   

In proceedings under this Article both the prosecution and the defence

10

may lead, as further evidence, any evidence that would be admissible

in proceedings for an injunction under Article 5.

(3)   

Paragraphs (3) to (7) of Article 7 apply to an order under this Article as

they apply to an order under that one.

(4)   

Where the Court of Appeal allow an appeal against conviction they

15

may remit the case to the Crown Court to consider whether to proceed

under this Article.

(5)   

Where—

(a)   

a county court allows an appeal against conviction, or

(b)   

a case is remitted to the Crown Court under paragraph (4),

20

   

the reference in paragraph (1) to a court before which a person is

acquitted of an offence is to be read as referring to that court.

(6)   

A person made subject to an order under this Article has the same right

of appeal against the order as if—

(a)   

he had been convicted of the offence in question before the court

25

which made the order, and

(b)   

the order had been made under Article 7.”

Trial by jury of sample counts only

12      

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

(1)   

The prosecution may apply to a judge of the Crown Court for a trial on

30

indictment to take place on the basis that the trial of some, but not all, of the

counts included in the indictment may be conducted without a jury.

(2)   

If such an application is made and the judge is satisfied that the following three

conditions are fulfilled, he may make an order for the trial to take place on the

basis that the trial of some, but not all, of the counts included in the indictment

35

may be conducted without a jury.

(3)   

The first condition is that the number of counts included in the indictment is

likely to mean that a trial by jury involving all of those counts would be

impracticable.

(4)   

The second condition is that, if an order under subsection (2) were made, each

40

count or group of counts which would accordingly be tried with a jury can be

regarded as a sample of counts which could accordingly be tried without a

jury.

 

 

Domestic Violence, Crime and Victims Bill [HL]
Part 2 — Criminal procedure etc

8

 

(5)   

The third condition is that it is in the interests of justice for an order under

subsection (2) to be made.

(6)   

In deciding whether or not to make an order under subsection (2), the judge

must have regard to any steps which might reasonably be taken to facilitate a

trial by jury.

5

(7)   

But a step is not to be regarded as reasonable if it could lead to the possibility

of a defendant in the trial receiving a lesser sentence than would be the case if

that step were not taken.

(8)   

An order under subsection (2) must specify the counts which may be tried

without a jury.

10

(9)   

For the purposes of this section and sections 13 to 15, a count (“the sample

count”) is to be regarded as a sample of other counts if—

(a)   

the defendant in respect of each count is the same person,

(b)   

evidence in respect of each count is admissible at the trial of the sample

count, and

15

(c)   

the judge considers that the sample count is a sample of the other

counts.

13      

Procedure for applications under section 12

(1)   

An application under section 12 must be determined at a preparatory hearing.

(2)   

Section 7(1) of the 1987 Act and section 29(2) of the 1996 Act are to have effect

20

as if the purposes there mentioned included the purpose of determining an

application under section 12.

(3)   

Section 29(1) of the 1996 Act is to have effect as if the grounds on which a judge

of the Crown Court may make an order under that provision included the

ground that an application under section 12 has been made.

25

(4)   

The parties to a preparatory hearing at which an application under section 12

is to be determined must be given an opportunity to make representations with

respect to the application.

(5)   

Section 9(11) of the 1987 Act and section 35(1) of the 1996 Act are to have effect

as if they also provided for an appeal to the Court of Appeal to lie from the

30

determination by a judge of an application under section 12.

(6)   

In this section—

   

“preparatory hearing” means a preparatory hearing within the meaning

of the 1987 Act or Part 3 of the 1996 Act;

   

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

35

   

“the 1996 Act” means the Criminal Procedure and Investigations Act 1996

(c. 25).

14      

Effect of order under section 12(2)

(1)   

The effect of an order under section 12(2) is that where, in the course of the

proceedings to which the order relates, a defendant is found guilty by a jury on

40

a count which can be regarded as a sample of other counts to be tried in those

proceedings, those other counts may be tried without a jury in those

proceedings.

 

 

Domestic Violence, Crime and Victims Bill [HL]
Part 2 — Criminal procedure etc

9

 

(2)   

Where the trial of a count is conducted without a jury because of an order

under section 12(2), the court is to have all the powers, authorities and

jurisdiction which the court would have had if the trial of that count had been

conducted with a jury (including power to determine any question and to

make any finding which would be required to be determined or made by a

5

jury).

(3)   

Except where the context otherwise requires, any reference in an enactment to

a jury, the verdict of a jury or the finding of a jury is to be read, in relation to

the trial of a count conducted without a jury because of an order under section

12(2), as a reference to the court, the verdict of the court or the finding of the

10

court.

(4)   

Where the trial of a count is conducted without a jury because of an order

under section 12(2) and the court convicts the defendant of that count—

(a)   

the court must give a judgment which states the reasons for the

conviction at, or as soon as reasonably practicable after, the time of the

15

conviction, and

(b)   

the reference in section 18(2) of the Criminal Appeal Act 1968 (c. 19)

(notice of appeal or of application for leave to appeal to be given within

28 days from date of conviction etc) to the date of the conviction is to be

read as a reference to the date of the judgment mentioned in paragraph

20

(a).

(5)   

Where, in the case of proceedings in respect of which an order under section

12(2) has been made, a jury convicts a defendant of a count, time does not begin

to run under section 18(2) of the Criminal Appeal Act 1968 in relation to an

appeal against that conviction until the date on which the proceedings end.

25

(6)   

In determining for the purposes of subsection (5) the date on which

proceedings end, any part of those proceedings which takes place after the

time when matters relating to sentencing begin to be dealt with is to be

disregarded.

(7)   

Nothing in this section or section 12, 13 or 15 affects the requirement under

30

section 4A of the Criminal Procedure (Insanity) Act 1964 (c. 84) that any

question, finding or verdict mentioned in that section be determined, made or

returned by a jury.

15      

Rules of court

(1)   

Rules of court may make such provision as appears to the authority making

35

them to be necessary or expedient for the purposes of sections 12 to 14.

(2)   

Without limiting subsection (1), rules of court may in particular make

provision for time limits within which applications under section 12 must be

made or within which other things in connection with that section or section 13

or 14 must be done.

40

(3)   

Nothing in this section is to be taken as affecting the generality of any

enactment conferring powers to make rules of court.

16      

Application of sections 12 to 15 to Northern Ireland

(1)   

In their application to Northern Ireland, sections 12 to 15 have effect subject to

the modifications in Schedule 1.

45

 

 

Domestic Violence, Crime and Victims Bill [HL]
Part 2 — Criminal procedure etc

10

 

(2)   

Sections 12 to 15 do not apply in relation to a trial to which section 75 of the

Terrorism Act 2000 (c. 11) (trial without jury for certain offences) applies.

Unfitness to plead and insanity

17      

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

(1)   

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

5

“5      

Powers to deal with persons not guilty by reason of insanity or unfit

to plead etc.

(1)   

This section applies where—

(a)   

a special verdict is returned that the accused is not guilty by

reason of insanity; or

10

(b)   

findings have been made that the accused is under a disability

and that he did the act or made the omission charged against

him.

(2)   

The court shall make in respect of the accused—

(a)   

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

15

(b)   

a supervision order, or

(c)   

an order for his absolute discharge.

(3)   

Where—

(a)   

the offence to which the special verdict or the findings relate is

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

20

(b)   

the court have power to make a hospital order,

   

the court shall make a hospital order with a restriction order (whether

or not they would have power to make a restriction order apart from

this subsection).

(4)   

In this section—

25

   

“hospital order” has the meaning given in section 37 of the Mental

Health Act 1983;

   

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

Act;

   

“supervision order” has the meaning given in Part 1 of Schedule

30

1A to this Act.

5A      

Orders made under or by virtue of section 5

(1)   

In relation to the making of an order by virtue of subsection (2)(a) of

section 5 above, section 37 (hospital orders etc) of the Mental Health Act

1983 (“the 1983 Act”) shall have effect as if—

35

(a)   

the reference in subsection (1) to a person being convicted

before the Crown Court included a reference to the case where

section 5 above applies;

(b)   

the words after “punishable with imprisonment” and before “or

is convicted” were omitted; and

40

(c)   

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

“(4)   

Where an order is made under this section requiring a person to

be admitted to a hospital (“a hospital order”), it shall be the duty

 

 

Domestic Violence, Crime and Victims Bill [HL]
Part 2 — Criminal procedure etc

11

 

of the managers of the hospital specified in the order to admit

him in accordance with it.”

(2)   

In relation to a case where section 5 above applies but the court have not

yet made one of the disposals mentioned in subsection (2) of that

section—

5

(a)   

section 35 of the 1983 Act (remand to hospital for report on

accused’s mental condition) shall have effect with the omission

of the words after paragraph (b) in subsection (3);

(b)   

section 36 of that Act (remand of accused person to hospital for

treatment) shall have effect with the omission of the words

10

“(other than an offence the sentence for which is fixed by law)”

in subsection (2);

(c)   

references in sections 35 and 36 of that Act to an accused person

shall be construed as including a person in whose case this

subsection applies; and

15

(d)   

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

as if—

(i)   

the reference in subsection (1) to a person being

convicted before the Crown Court included a reference

to the case where section 5 above applies; and

20

(ii)   

the words “(other than an offence the sentence for which

is fixed by law)” in that subsection were omitted.

(3)   

In relation to the making of any order under the 1983 Act by virtue of

this Act, references in the 1983 Act to an offender shall be construed as

including references to a person in whose case section 5 above applies,

25

and references to an offence shall be construed accordingly.

(4)   

Where—

(a)   

a person is detained in pursuance of a hospital order which the

court had power to make by virtue of section 5(1)(b) above, and

(b)   

the court also made a restriction order, and that order has not

30

ceased to have effect,

   

the Secretary of State, if satisfied after consultation with the responsible

medical officer that the person can properly be tried, may remit the

person for trial, either to the court of trial or to a prison.

   

On the person’s arrival at the court or prison, the hospital order and the

35

restriction order shall cease to have effect.

(5)   

Schedule 1A to this Act (supervision orders) has effect with respect to

the making of supervision orders under subsection (2)(b) of section 5

above, and with respect to the revocation and amendment of such

orders.

40

(6)   

In relation to the making of an order under subsection (2)(c) of section

5 above, section 12(1) of the Powers of Criminal Courts (Sentencing)

Act 2000 (absolute and conditional discharge) shall have effect as if—

(a)   

the reference to a person being convicted by or before a court of

such an offence as is there mentioned included a reference to the

45

case where section 5 above applies; and

(b)   

the reference to the court being of opinion that it is inexpedient

to inflict punishment included a reference to it thinking that an

order for absolute discharge would be most suitable in all the

circumstances of the case.”

50

 

 

Domestic Violence, Crime and Victims Bill [HL]
Part 2 — Criminal procedure etc

12

 

(2)   

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

the Schedule set out in Schedule 2 to this Act.

(3)   

In section 6 of the Criminal Appeal Act 1968 (c. 19) (substitution of finding of

insanity or findings of unfitness to plead etc) and in section 14 of that Act

(substitution of findings of unfitness to plead etc), for subsections (2) and (3)

5

substitute—

“(2)   

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

(a)   

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

(b)   

a supervision order, or

(c)   

an order for his absolute discharge.

10

(3)   

Where—

(a)   

the offence to which the appeal relates is an offence the sentence

for which is fixed by law, and

(b)   

the court have power to make a hospital order,

   

the court shall make a hospital order with a restriction order (whether

15

or not they would have power to make a restriction order apart from

this subsection).

(4)   

In this section—

   

“hospital order” has the meaning given in section 37 of the Mental

Health Act 1983;

20

   

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

Act;

   

“supervision order” has the meaning given in Part 1 of Schedule

1A to the Criminal Procedure (Insanity) Act 1964 (“the 1964

Act”).

25

(5)   

Section 5A of the 1964 Act applies in relation to this section as it applies

in relation to section 5 of that Act.”

(4)   

Section 14A of the Criminal Appeal Act 1968 (power to order admission to

hospital where, on appeal against verdict of not guilty by reason of insanity,

Court of Appeal substitutes verdict of acquittal) is repealed.

30

(5)   

Section 5 of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991

(c. 25) and Schedules 1 and 2 to that Act are repealed.

18      

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

After section 16 of the Criminal Appeal Act 1968 insert—

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

35

“16A    

Right of appeal against hospital order etc.

(1)   

A person in whose case the Crown Court—

(a)   

makes a hospital order or interim hospital order by virtue of

section 5 or 5A of the Criminal Procedure (Insanity) Act 1964, or

(b)   

makes a supervision order under section 5 of that Act,

40

   

may appeal to the Court of Appeal against the order.

(2)   

An appeal under this section lies only—

(a)   

with the leave of the Court of Appeal; or

 

 

 
previous section contents continue
 
House of Commons home page Houses of Parliament home page House of Lords home page search page enquiries

© Parliamentary copyright 2004
Revised 30 March 2004