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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 13453/3
 
 

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

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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—

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(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

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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

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(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),

 

 

 
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