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 1 — Domestic violence etc
1

A
Bill
[AS AMENDED IN STANDING COMMITTEE E]
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 for the payment of surcharges by offenders; 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 make provision about the execution of
warrants; to make provision about the enforcement of orders imposed on
conviction; to amend section 58 of the Criminal Justice Act 2003 and to amend
Part 12 of that Act in relation to intermittent custody; to make provision in
relation to victims of offences, witnesses of offences and others affected by
offences; and to make provision about the recovery of compensation from
offenders.
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

Bill 134 53/3

Domestic Violence, Crime and Victims Bill [HL]
Part 1 — Domestic violence etc
2

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.
5
(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
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
10
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
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
15
exceeding five years, or a fine, or both;
(b)
on summary conviction, to imprisonment for a term not
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
20
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.

“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
25
(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,
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
30
former cohabitant with no existing right), after “relationship” insert “and in
particular the level of commitment involved in it”.
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”
35
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”.
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
40
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;”.

Domestic Violence, Crime and Victims Bill [HL]
Part 1 — Domestic violence etc
3

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—
5
(i)
was a member of the same household as V, and
(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
10
(d)
either D was the person whose act caused V’s death or—
(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
15
(iii)
the act occurred in circumstances of the kind that D foresaw or
ought to have foreseen.
(2)
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.
(3)
If D was not the mother or father of V—
20
(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;
(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.
(4)
For the purposes of this section—
25
(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
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
30
household as V” refers to the household in which V was living at the
time of the act that caused V’s death.
(5)
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—
35
(i)
a person under the age of ten, or
(ii)
a person entitled to rely on a defence of insanity.

Paragraph (b) does not apply to an act of D.
(6)
In this section—

“act” includes a course of conduct and also includes omission;
40

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

“serious” harm means harm that amounts to grievous bodily harm for the
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
45

Domestic Violence, Crime and Victims Bill [HL]
Part 1 — Domestic violence etc
4

through physical or mental disability or illness, through old age or
otherwise.
(7)
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.
5
6
Evidence and procedure: England and Wales
(1)
Subsections (2) to (4) apply where a person (“the defendant”) is charged in the
same proceedings with an offence of murder or manslaughter and with an
offence under section 5 in respect of the same death (“the section 5 offence”).
(2)
Where by virtue of section 35(3) of the Criminal Justice and Public Order Act
10
1994 (c. 33) a court or jury is permitted, in relation to the section 5 offence, to
draw such inferences as appear proper from the defendant’s failure to give
evidence or refusal to answer a question, the court or jury may also draw such
inferences in determining whether he is guilty—
(a)
of murder or manslaughter, or
15
(b)
of any other offence of which he could lawfully be convicted on the
charge of murder or manslaughter,

even if there would otherwise be no case for him to answer in relation to that
offence.
(3)
The charge of murder or manslaughter is not to be dismissed under paragraph
20
2 of Schedule 3 to the Crime and Disorder Act 1998 (c. 37) (unless the section 5
offence is dismissed).
(4)
At the defendant’s trial the question whether there is a case for the defendant
to answer on the charge of murder or manslaughter is not to be considered
before the close of all the evidence (or, if at some earlier time he ceases to be
25
charged with the section 5 offence, before that earlier time).
(5)
An offence under section 5 is an offence of homicide for the purposes of the
following enactments—

sections 24 and 25 of the Magistrates’ Courts Act 1980 (c. 43) (mode of trial
of child or young person for indictable offence);
30

section 51A of the Crime and Disorder Act 1998 (sending cases to the
Crown Court: children and young persons);

section 8 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)
(power and duty to remit young offenders to youth courts for
sentence).
35
7
Evidence and procedure: Northern Ireland
(1)
Subsections (2) to (4) apply where a person (“the defendant”) is charged in the
same proceedings with an offence of murder or manslaughter and with an
offence under section 5 in respect of the same death (“the section 5 offence”).
(2)
Where by virtue of Article 4(4) of the Criminal Evidence (Northern Ireland)
40
Order 1988 (S.I. 1988/1987 (N.I. 20)) a court or jury is permitted, in relation to
the section 5 offence, to draw such inferences as appear proper from the
defendant’s failure to give evidence or refusal to answer a question, the court
or jury may also draw such inferences in determining whether he is guilty—
(a)
of murder or manslaughter, or
45

Domestic Violence, Crime and Victims Bill [HL]
Part 1 — Domestic violence etc
5

(b)
of any other offence of which he could lawfully be convicted on the
charge of murder or manslaughter,

even if there would otherwise be no case for him to answer in relation to that
offence.
(3)
Where a magistrates’ court is considering under Article 37 of the Magistrates’
5
Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) whether to
commit the defendant for trial for the offence of murder or manslaughter, if
there is sufficient evidence to put him upon trial for the section 5 offence there
is deemed to be sufficient evidence to put him upon trial for the offence of
murder or manslaughter.
10
(4)
At the defendant’s trial the question whether there is a case to answer on the
charge of murder or manslaughter is not to be considered before the close of all
the evidence (or, if at some earlier time he ceases to be charged with the section
5 offence, before that earlier time).
(5)
An offence under section 5 is an offence of homicide for the purposes of the
15
following provisions—

Article 17 of the Criminal Justice (Children) (Northern Ireland) Order
1998 (S.I. 1998/1504 (N.I. 9)) (mode of trial of child for indictable
offence);

Article 32 of that Order (power and duty to remit children to youth courts
20
for sentence).
8
Evidence and procedure: courts-martial
(1)
Section 6(1), (2) and (4) has effect in relation to proceedings before courts-
martial with the following adaptations.
(2)
A reference to an offence of murder or manslaughter or an offence under
25
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
(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
30
(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
9
Establishment and conduct of reviews
(1)
In this section “domestic homicide review” means a review of the
35
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
an intimate personal relationship, or
(b)
a member of the same household as himself,
40

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
review.

Domestic Violence, Crime and Victims Bill [HL]
Part 2 — Criminal Justice
6

(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.
(4)
The persons and bodies within this subsection are—
5
(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
Justice and Court Services Act 2000 (c. 43);
10

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;

NHS trusts established under section 5 of the National Health
15
Service and Community Care Act 1990 (c. 19);
(b)
in relation to Northern Ireland—

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
20
the Health and Personal Social Services (Northern Ireland)
Order 1972 (S.I. 1972/1265 (N.I. 14));

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)).
25
(5)
In subsection (4)(a) “local authority” means—
(a)
in relation to England, the council of a district, county or London
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.
30
(6)
The Secretary of State may by order amend subsection (4) or (5).
Part 2
Criminal Justice
Assault, harassment etc
10
Common assault to be an arrestable offence
35
(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
heading “Criminal Justice Act 1988”) insert—
“14A
Common assault.”
(2)
In Article 26(2) of the Police and Criminal Evidence (Northern Ireland) Order
40
1989 (S.I. 1989/1341 (N.I. 12)) (specific offences which are arrestable offences),

Domestic Violence, Crime and Victims Bill [HL]
Part 2 — Criminal Justice
7

after paragraph (m) insert—
“(n)
an offence under section 42 of the Offences against the Person
Act 1861 (c. 100) (common assault etc).”
11
Common assault etc as alternative verdict
In section 6 of the Criminal Law Act 1967 (c. 58) (trial of offences), after
5
subsection (3) (alternative verdicts on trial on indictment) insert—
“(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
10
included in the indictment.
(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.”
12
Restraining orders: England and Wales
15
(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—
“(4A)
Any person mentioned in the order is entitled to be heard on the
20
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.”
(4)
After that section insert—
25
“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
from doing anything described in the order.
30
(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
they apply to an order under that one.
35
(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—
(a)
the Crown Court allows an appeal against conviction, or
40
(b)
a case is remitted to the Crown Court under subsection (4),