Clause 12: Application by prosecution for certain counts to be tried without a jury

60.     This clause makes provision for the prosecution to apply for part of a trial on indictment in the Crown Court to proceed in the absence of a jury. A successful application would need to satisfy the Court of three conditions.

61.     The first condition is that there are so many counts in the indictment that a trial by jury involving all of those counts is likely to be impracticable (subsection (3)).

62.     The second condition (subsection (4)) is that the court considers that those counts which would be able to be tried with a jury can be regarded as samples of other counts in the indictment, which could accordingly be tried without a jury. For this purpose, the defendant in respect of each count must be the same person, and evidence in respect of each count must be admissible at the trial of the sample count (subsection (9)).

63.     The third condition is that it is in the interests of justice for such a trial to take place (subsection (5)).

64.     In deciding whether to make the order, the judge will also be required to consider whether there is anything that could reasonably be done to facilitate a jury trial of all of the counts. However, in doing so they are not to regard as reasonable any measure which might 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.

Clause 13: Procedure for applications under section 12

65.     This clause prescribes the procedure for determining applications for part of a trial to proceed in the absence of a jury under clause 12. This provision is likely to be supplemented by rules of court, especially those provided for in clause 15. It makes clear that any such application will be determined at a preparatory hearing that has been ordered (whether particularly for that purpose or not) under the relevant provisions in the Criminal Justice Act 1987 and the Criminal Procedure and Investigations Act 1996. The parties to the preparatory hearing must also be given the opportunity to make representations with respect to the application.

66.     The effect of subsection (5) is that an appeal will lie to the Court of Appeal for both prosecution and defendant against the determination made by the court at a preparatory hearing on any application for part of a trial to take place without jury under clause 12.

Clause 14: Effect of order under section 12(2)

67.     Subsection (1) provides that if, in a case where an order under clause 12 has been made, the defendant is found guilty by the jury of a sample count, the counts of which it is a sample may be tried without jury.

68.     Subsection (2) provides that where a court orders part of a trial to be conducted without a jury under clause 12(2), the trial will proceed in the usual way, except that the functions which would otherwise have been performed by a jury can be fully performed by the judge sitting alone; and subsection (3) provides for references to the jury in other enactments to be interpreted as references to the court.

69.     Where part of a trial is conducted without a jury, and a defendant is convicted, subsection (4)(a) requires the court to give its reasons for the conviction.

70.     Subsections (5) and (6) provide that the time limits governing applications for leave to appeal to the Court of Appeal against conviction in cases where part of the trial is conducted without a jury will begin to run from the end of the trial, and not from the end of the part of the trial which is tried with a jury.

71.     Subsection (7) disapplies these provisions in respect of hearings under section 4Aof the Criminal Procedure (Insanity) Act 1964.

Clause 15: Rules of court

72.     This clause makes clear that rules of court may be made governing the procedure to be followed, and the time limits which will apply, in respect of applications under clause 12.

Clause 16: Applications of sections 12 to 15 to Northern Ireland

73.     This clause introduces Schedule 1, which modifies clauses 12 to 15 in their application to Northern Ireland. Under clause 13(1) (as modified by Schedule 1), an application under clause 12 must be determined at a preparatory hearing within the meaning of the Criminal Justice (Serious Fraud)(Northern Ireland) Order 1988 (this is the Northern Ireland equivalent of a preparatory hearing under the Criminal Justice Act 1987) or a hearing specified in, or for which provision is made by Crown Court rules. The Crown Court rules are necessary as Part III of the Criminal Procedure and Investigations Act 1996 ("the 1996 Act") does not extend to Northern Ireland.

74.     Subsection (2) provides that clauses 12 to 15 do not apply in relation to trials to which section 75 of the Terrorism Act 2000 applies. Section 75 applies only to Northern Ireland and provides for mode of trial on indictment of scheduled offences to be a court sitting without a jury. These are commonly known as "Diplock Courts" after the Diplock Commission which found that the jury system as a means of trying terrorist crime was under strain and highlighted the danger of perverse acquittals or intimidation of jurors. Scheduled offences are defined in section 65 and Schedule 9 of the Terrorism Act 2000 as being offences which qualify for special treatment because they are terrorist offences related to the special situation in Northern Ireland.

75.     Clause 13A (as substituted by Schedule 1) makes provision for appeals in respect of hearings under Crown Court rules. Clause 13B (as substituted by Schedule 1), which deals with reporting restrictions, applies sections 41 and 42 of the 1996 Act to hearings and appeals under Crown Court rules.

Clause 17: Powers of court on finding of insanity or unfitness to plead etc.

76.     Clause 17 provides a new range of disposals for the court when it has made a finding of unfitness to plead and that the defendant did the act charged or has found the defendant not guilty by reason of insanity under the Criminal Procedure (Insanity) Act 1964. They allow for the defendant to receive treatment and support if the court thinks that this is appropriate.

77.     Subsection (1) substitutes a new section 5 and inserts a new section 5A of the Criminal Procedure (Insanity) Act 1964. The new section 5 sets out the court's options on a finding of unfitness or insanity. The court has three options. The first option is to make a hospital order under section 37 of the Mental Health Act 1983 (which can also be accompanied by a restriction order under section 41 of that Act). The second option is to make a supervision order and the third option is to order the defendant's absolute discharge.

78.     If the court wishes the defendant to be detained in hospital, the appropriate order will be a hospital order. To make a hospital order, the court must have the evidence required by the 1983 Act: that the defendant is mentally disordered and requires specialist medical treatment. This means that there must be medical evidence that justifies his detention on grounds of his mental state. The making of a restriction order alongside a hospital order gives the Secretary of State certain powers in relation to the management of the defendant in hospital, such as the requirement that the Secretary of State consent to the defendant being given leave or discharged. Restriction orders are made in cases where the defendant poses a risk to the public (see section 41(1) of the 1983 Act). The power of the court to make a hospital order and a restriction order under the 1983 Act represents a change from the current position, whereby the court makes an order for the defendant's admission to hospital under Schedule 1 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, without any requirement to hear medical evidence, and specifies whether it thinks restrictions are appropriate. Once the court has made an admission order, the Secretary of State has two months to issue a warrant for the defendant's admission to hospital. The defendant is then treated for the purposes of his management in hospital as if he had been given a hospital order (and if appropriate a restriction order) under the 1983 Act. The two principal differences under the new system will be that the Secretary of State no longer has a role in deciding whether or not the defendant is admitted to hospital and that a court can no longer order the defendant's admission to a psychiatric hospital without any medical evidence.

79.     Existing provision in section 5(3) of the 1964 Act and paragraph 2(2) of Schedule 1 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 requires the court to admit the defendant to hospital subject to restrictions where he was charged with an offence for which the sentence is fixed by law (i.e. murder). The new section 5 does the same but the court is only obliged to make a hospital order with a restriction order on a charge of murder if the conditions for making a hospital order are met. If the conditions are not met, for example if the reason for the finding of unfitness to plead related to a physical disorder, the court has the option of making one of the other orders.

80.     The new section 5A makes provision about the detail of these orders. Subsections (1) and (3) of new section 5A modify the 1983 Act so that the provisions on hospital orders (which are normally given after conviction of an offence) apply equally to those given a hospital order following a finding of unfitness or insanity. The one difference is that a court will be able to require a hospital to admit a person found unfit to plead or not guilty by reason of insanity, whereas it has no such power in respect of those convicted of an offence.

81.     Subsection (2) of new section 5A extends the powers under the 1983 Act to remand an accused person to hospital for a report or treatment and to make an interim hospital order so that the court can exercise these powers where a person has been found unfit to plead or not guilty by reason of insanity and the court is considering which disposal would be appropriate.

82.     Subsection (4) of new section 5A replicates existing provision in paragraph 4 of Schedule 1 to the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 and allows the Secretary of State to remit for trial a person who is found unfit to plead and given a hospital order with a restriction order and who subsequently recovers.

83.     Subsection (5) of new section 5A introduces a new Schedule 1A to the 1964 Act, which makes provision about the supervision order. The new Schedule 1A is inserted by subsection (2) of clause 17 and Schedule 2 to the Bill. The supervision order will replace the existing supervision and treatment order, provision for which is made in Schedule 2 to the 1991 Act. The new supervision order differs from the old supervision and treatment order in that it enables treatment to be given under supervision for physical as well as mental disorder and in that it cannot include a requirement for a person to receive treatment as an in-patient. It is designed to enable support and treatment to be given to the defendant to prevent recurrence of the problem which led to the offending. There is no sanction for breach of either the new supervision order or the existing supervision and treatment order; the orders simply provide a framework for treatment.

84.     Subsection (6) of new section 5A applies the provision on absolute discharge in section 12 the Powers of Criminal Courts (Sentencing) Act 2000 to the case where a defendant is given an absolute discharge following a finding of unfitness or insanity.

85.     Subsection (3) of clause 17 makes the same changes to the disposals available to the Court of Appeal when substituting a finding of insanity or unfitness to plead for another finding. Subsection (4) of clause 17 removes power of the Court of Appeal to order a person's admission to hospital where it substitutes a verdict of acquittal for a verdict of not guilty by reason of insanity and there is medical evidence that the person is mentally disordered. It will still be possible to admit such a person to hospital under the civil powers in the 1983 Act.

86.     Subsection (5) of clause 17 repeals the provisions of the 1964 and 1991 Acts which are being replaced.

Clause 18: Appeal against order made on finding of insanity or unfitness to plead etc

87.     This clause inserts new sections 16A and 16B into the Criminal Appeal Act 1968. New section 16A provides a right of appeal to the Court of Appeal against a supervision order or hospital order made by virtue of clause 17. New section 16B enables the Court of Appeal to quash those orders and substitute or amend them in any way available to the court below.

Clause 19: Prosecution Appeals

88.     Clause 19 makes an amendment to section 58(13) of the Criminal Justice Act 2003 to ensure that the prosecution appeals provisions in Part 9 of that Act are available, as it was intended they should be, in cases tried without a jury under Part 7 of that Act. The existing definition in section 58(13) is the point beyond which the prosecution right of appeals cannot be exercised is inappropriate where there is no jury. (Paragraph 40 of Schedule 7 to the Bill inserts into the Criminal Justice Act 2003 an order-making power allowing appropriate modifications to be made to Part 9 of that Act to take into account two-stage trials under clause 12.)

Clause 20: Intermittent custody

89.     The provisions of clause 20 and Schedule 3 ensure that those serving a sentence of intermittent custody become eligible for home detention curfew at an equivalent point in their sentence to those serving a sentence of custody plus. Schedule 3 also inserts a new section 264A which makes separate provision for those serving consecutive sentences of intermittent custody. As before, its effect is to ensure equivalence between the sentences of intermittent custody and custody plus.

PART 3: VICTIMS ETC

Clause 21: Codes of practice for victims

90.     Clause 21 places a requirement on the Secretary of State in consultation (under clause 22) with the Attorney General and the Lord Chancellor (the Cabinet Ministers who share responsibility for the criminal justice system) to issue a Code of Practice in respect of the services provided to victims of crime by persons who have functions relating to victims or the criminal justice system as a whole.

91.     Subsections (2)- (4) allow the code to:

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

• benefit persons other than the victim, such as the relatives of deceased victims or parents of juveniles;

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

92.     Subsection (5) provides that the code may not require anything to be done by a person acting in a judicial capacity or by a member of the Crown Prosecution Service when exercising a discretion.

93.     Subsection (6) provides 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. This ensures that the provisions of the code can be broad enough to require the provision of services to victims at all stages of the criminal justice system and to victims of offences in respect of which no criminal proceedings are eventually brought or where criminal proceedings result in a not-guilty verdict.

Clause 22: Procedure

94.     Clause 22 explains the procedure for drafting and issuing the code of practice and subsequent revisions of it. When the final version of the code has been laid before Parliament, it is brought into operation by order. By virtue of clause 37(3), the order is to be subject to the negative resolution procedure. By virtue of subsection (9), the code may not be revised so as to reduce the quality or extent of services provided.

Clause 23: Effect of non-compliance

95.     Clause 23 provides that failure to comply with the code does not, in itself, give rise to any liability to legal proceedings.

Clause 24: Investigations by the Parliamentary Commissioner

96.     Clause 24 and Schedule 4 amend the Parliamentary Commissioner Act 1967. The amendments extend the jurisdiction of the Parliamentary Commissioner for Administration so that he can investigate and report on:

• complaints that the code of practice issued under clause 21 has been breached;

• complaints that a local probation board has failed to disclose information to victims under section 69 of the Criminal Justice and Court Services Act 2000.

97.     Complaints will have to be made to the Parliamentary Commissioner through a Member of Parliament, in the same way as complaints of maladministration within the Parliamentary Commissioner's existing remit. The Parliamentary Commissioner will have the same powers to obtain evidence and examine witnesses as he has in relation to complaints of maladministration. The provisions as to secrecy of information will also apply in the same way as to complaints of maladministration.

98.     Paragraph 2(4) of Schedule 4 provides that the matters excluded from the Parliamentary Commissioner's remit are slightly different for complaints of breaches of the code or section 69 of the Criminal Justice and Court Services Act 2000 than they are for complaints of maladminstration under the 1967 Act. Matters relating to criminal investigations and proceedings are excluded from the Parliamentary Commissioner's remit in respect of complaints of maladministration under the 1967 Act but such an exclusion would make the exercise of his functions in relation to breaches of the code and section 69 of the 2000 Act ineffective. Therefore, this exclusion does not apply in respect of complaints for breaches of the code or of section 69 of the 2000 Act.

Clause 25: Commissioner for Victims and Witnesses

99.     Clause 25 provides for a Commissioner for Victims and Witnesses to be appointed by the Secretary of State, in consultation with the Attorney General and the Lord Chancellor. The effect of providing that the Commissioner is a corporation sole (subsection (3)) is that the office of the Commissioner has legal personality and that the Commissioner (in his capacity as office holder) can hold property, bring legal proceedings and employ staff. Sub-sections (4) and (5) provide that the Commissioner is not to be a Crown servant, which would be inappropriate to his independent role.

100.     Subsection (6) introduces Schedule 5, which makes detailed provision about the Commissioner. Paragraph 1 provides for the Secretary of State to appoint a Deputy Commissioner who will carry on the Commissioner's functions if he is unable to do so. Paragraphs 2, 5 and 6 concern the terms of appointment of the Commissioner and Deputy Commissioner and paragraph 10 provides that they will be disqualified from sitting in Parliament or the Northern Ireland Assembly (office holders are usually disqualified from membership of the Scottish Parliament and National Assembly by order made by the relevant authority). Paragraphs 3 and 4 allow the Commissioner to appoint his own staff and to authorise them to carry out his functions. Paragraphs 8 and 9 provide for the Commissioner to prepare an annual plan, which will be subject to the approval of the Secretary of State, and to prepare an annual report which he must send to the Secretary of State, who will be required to lay the report before Parliament and publish it.

Clause 26: General functions of the Commissioner

101.     Clause 26 outlines the functions of the Commissioner. Under subsection (1), the Commissioner's primary functions are to promote the interests of victims and witnesses, take steps to encourage good practice in their treatment and keep the code issued under clause 21 under review. Subsection (2) provides for various ways in which he can carry out these functions, including making a report to the Secretary of State, commissioning research and making recommendations to an authority within his remit (as to which see clause 30).

102.     Subsection (3) requires that where the Commissioner makes a report to the Secretary of State under subsection (2), the Secretary of State must send the report to the Attorney General and the Lord Chancellor, lay the report before Parliament and arrange for its publication.

Clause 27: Advice

103.     Clause 27 obliges the Commissioner to provide advice on issues relating to victims and witnesses when requested to do so by any Government Minister.

104.     The authorities within the Commissioner's remit may ask the Commissioner to give specific advice in connection with the information they provide, through whatever medium, to victims and witnesses.

Clause 28: Restrictions on exercise of functions

105.     Clause 28 excludes the Commissioner from exercising his functions on behalf of individual victims or witnesses. He cannot, for example, ask the police or Crown Prosecution Service to bring or reconsider a particular charge against an individual offender, or ask for the courts to impose a particular sentence. On the other hand, the Commissioner will not be excluded from commenting on charging or sentencing policy, or any other wider policy issue relating to victims and witnesses.

Clause 29: Victims and Witnesses

106.     Clause 29 provides definitions of victim and witness, for the purpose of clauses 25 to 28 (which outline the Commissioner's functions). These definitions are wide enough to include: victims of offences in respect of which no offence was reported to the police or no suspect was charged or convicted (subsection (3)); and witnesses who are not actually called to give evidence (subsection (4)). The effect is that the Commissioner is not excluded from considering the position of those victims who, for whatever reason, choose not to report crime, or those witnesses who do not come forward to make statements or give evidence.

107.     Under subsections (4) and (6), the definition of witness does not include witnesses who are or would be defendants in criminal proceedings.

Clause 30: Authorities within the Commissioner's remit

108.     Clause 30 introduces Schedule 6 which lists the authorities which fall within the Commissioner's remit. The list includes authorities which might have a more general impact on victims and witnesses, not just authorities with an interest in the criminal justice system. Subsection (2) provides the Secretary of State with the power to amend this list by order, in consultation with the Attorney General and the Lord Chancellor. By virtue of clause 37(4), this power is subject to the affirmative resolution procedure.

Clause 31: Disclosure of information

109.     Clause 31 enables information to be disclosed to those bound by the code issued under clause 21, local probation boards, the Commissioner and authorities within his remit for the purposes of: compliance with the code; compliance with the duty of local probation boards to provide information to victims under section 69 of the Criminal Justice and Court Services Act 2000; and the carrying out of the Commissioner's functions.

110.     Under subsections (4) to (6), the Secretary of State may, in consultation with the Attorney General and the Lord Chancellor, amend the clause by order so as to permit disclosure of information to a wider range of people or for a wider range of purposes. However, the persons to whom information is disclosed must exercise functions of a public nature and the purpose must be connected with the assistance of victims, witnesses and others affected by offences. By virtue of clause 37(4), this power is subject to the affirmative resolution procedure.

111.     Subsection (7), makes clear that permission to disclose under this clause does not override the provision of the Data Protection Act 1998. It is also implicit that the provisions of the Human Rights Act 1998 would need to be taken into account before any disclosure is made under this clause.

Clause 32: Victims' Advisory Panel

112.     Clause 32 requires the Secretary of State to appoint a Victims' Advisory Panel which he can consult on matters relating to victims and witnesses of crime. The Panel will be required to publish an annual report if the Secretary of State has consulted it during a particular year. The Secretary of State must consult the Attorney General and the Lord Chancellor before appointing or removing a member of the Panel.

114.     The Home Secretary announced his intention to set up a Victims' Advisory Panel in March 2002, as stated in paragraph 2.45 (page 48) of the July 2002 White Paper "Justice For All". A non-statutory advisory non-departmental public body known as the Victims' Advisory Panel was duly recruited and met for the first time on 3 March 2003.

115.     The membership of the current Panel comprises ten voluntary lay members, who have direct experience of issues relating to victims, 3 co-opted members representing wider victims' interests, representatives of voluntary organisations to which the Government provides core funding to provide direct services to victims and witnesses, and senior officials from criminal justice agencies. It is chaired by the Minister for Criminal Justice, and is also attended by a minister from the Department for Constitutional Affairs, and the Solicitor General.

116.     By subsection (7) the non-statutory Victims' Advisory Panel is to be treated as having been established in accordance with this clause.