Domestic Violence, Crime and Victims Bill [HL]

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