|
| |
|
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 |
| |
| |
| 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 |
| |
| |
(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).” |
| |
|
| |
|
| |
|
(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 |
| |
| |
| |
(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 |
| |
| |
(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 |
| |
| |
|
| |
|
| |
|
(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 |
| |
| 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 |
| |
| 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 |
| |
| 15 |
(c) | the judge considers that the sample count is a sample of the other |
| |
| |
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. |
| |
| |
| “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 |
| |
| |
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 |
| |
| |
|
| |
|
| |
|
(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 |
| |
(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 |
| |
(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 |
| |
(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 |
| |
(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 |
| |
| |
(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 |
| |
| |
| |
(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 |
| |
| 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 |
|
| |
|
| |
|
(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 |
| |
| |
(1) | This section applies where— |
| |
(a) | a special verdict is returned that the accused is not guilty by |
| |
| 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 |
| |
| |
(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. |
| |
| |
(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 |
| |
| |
| 25 |
| “hospital order” has the meaning given in section 37 of the Mental |
| |
| |
| “restriction order” has the meaning given to it by section 41 of that |
| |
| |
| “supervision order” has the meaning given in Part 1 of Schedule |
| 30 |
| |
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 |
| |
| |
(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 |
| |
|
| |
|
| |
|
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 |
| |
| 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)” |
| |
| |
(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 |
| |
| 15 |
(d) | section 38 of that Act (interim hospital orders) shall have effect |
| |
| |
(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. |
| |
| |
(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 |
| |
| 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 |
| |
| 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 |
|
| |
|
| |
|
(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 |
| |
“(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 |
| |
(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 |
| |
| |
| |
| “hospital order” has the meaning given in section 37 of the Mental |
| |
| 20 |
| “restriction order” has the meaning given to it by section 41 of that |
| |
| |
| “supervision order” has the meaning given in Part 1 of Schedule |
| |
1A to the Criminal Procedure (Insanity) Act 1964 (“the 1964 |
| |
| 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 |
| |
|
| |
|