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Domestic Violence, Crime and Victims Bill [HL]


Domestic Violence, Crime and Victims Bill [HL]
Schedule 2 — Supervision orders on finding of insanity or unfitness to plead etc

45

 

(b)   

substitutes for those requirements other requirements

which can be complied with if the supervised person

ceases to reside in that area.

Amendment of requirements of order

11    (1)  

Without prejudice to the provisions of paragraph 10 above, but

5

subject to sub-paragraph (2) below, a magistrates’ court for the

local justice area concerned may, on the application of the

supervised person or the supervising officer, by order amend a

supervision order—

(a)   

by cancelling any of the requirements of the order; or

10

(b)   

by inserting in the order (either in addition to or in

substitution for any such requirement) any requirement

which the court could include if it were the court by which

the order was made and were then making it.

      (2)  

The power of a magistrates’ court under sub-paragraph (1) above

15

shall not include power to amend an order by extending the

period specified in it beyond the end of two years from the day of

the original order.

Amendment of requirements in pursuance of medical report

12    (1)  

Where the medical practitioner by whom or under whose

20

direction the supervised person is being treated for his mental

condition in pursuance of any requirement of a supervision

order—

(a)   

is of the opinion mentioned in sub-paragraph (2) below, or

(b)   

is for any reason unwilling to continue to treat or direct the

25

treatment of the supervised person,

           

he shall make a report in writing to that effect to the supervising

officer and that officer shall apply under paragraph 11 above to a

magistrates’ court for the local justice area concerned for the

variation or cancellation of the requirement.

30

      (2)  

The opinion referred to in sub-paragraph (1) above is—

(a)   

that the treatment of the supervised person should be

continued beyond the period specified in the supervision

order;

(b)   

that the supervised person needs different treatment,

35

being treatment of a kind to which he could be required to

submit in pursuance of such an order;

(c)   

that the supervised person is not susceptible to treatment;

or

(d)   

that the supervised person does not require further

40

treatment.

Supplemental

13    (1)  

On the making under paragraph 9 above of an order revoking a

supervision order, the designated officer for the local justice area

concerned, or (as the case may be) the Crown Court, shall

45

forthwith give copies of the revoking order to the supervising

officer.

 

 

Domestic Violence, Crime and Victims Bill [HL]
Schedule 3 — Unfitness to stand trial and insanity: courts-martial etc

46

 

      (2)  

A supervising officer to whom in accordance with sub-paragraph

(1) above copies of a revoking order are given shall give a copy to

the supervised person and to the person in charge of any

institution in which the supervised person is residing.

14    (1)  

On the making under paragraph 10 or 11 above of any order

5

amending a supervision order, the designated officer for the local

justice area concerned shall forthwith—

(a)   

if the order amends the supervision order otherwise than

by substituting a new area or a new place for the one

specified in the supervision order, give copies of the

10

amending order to the supervising officer;

(b)   

if the order amends the supervision order in the manner

excepted by paragraph (a) above, send to the designated

officer for the new local justice area concerned—

(i)   

copies of the amending order; and

15

(ii)   

such documents and information relating to the

case as he considers likely to be of assistance to a

court acting for that area in exercising its functions

in relation to the order;

           

and in a case falling within paragraph (b) above, the designated

20

officer for that area shall give copies of the amending order to the

supervising officer.

      (2)  

Where the designated officer for the court making the order is also

the designated officer for the new local justice area—

(a)   

sub-paragraph (1)(b) above does not apply; but

25

(b)   

the designated officers shall give copies of the amending

order to the supervising officer.

      (3)  

Where in accordance with sub-paragraph (1) or (2) above copies of

an order are given to the supervising officer, he shall give a copy

to the supervised person and to the person in charge of any

30

institution in which the supervised person is or was residing.”

Schedule 3

Section 26

 

Unfitness to stand trial and insanity: courts-martial etc

Army Act 1955 (3 & 4 Eliz. 2 c. 18) and Air Force Act 1955 (3 & 4 Eliz. 2 c. 19)

1          

For section 116 of the Army Act 1955 and of the Air Force Act 1955

35

(provisions where accused found insane) substitute—

“Findings of unfitness to stand trial and insanity

115A    

Fitness to stand trial

(1)   

This section applies where on a trial by court-martial of a person the

question arises (at the instance of the defence or otherwise) whether

40

the accused is fit to stand trial.

(2)   

For the purposes of this Act a person is unfit to stand trial if he is

under a disability such that apart from the Criminal Procedure

 

 

Domestic Violence, Crime and Victims Bill [HL]
Schedule 3 — Unfitness to stand trial and insanity: courts-martial etc

47

 

(Insanity) Act 1964 it would constitute a bar to his being tried on

indictment in England and Wales.

(3)   

If, having regard to the nature of the supposed disability, the judge

advocate is of opinion that it is expedient to do so and in the interests

of the accused, he may postpone consideration of the question of

5

fitness to stand trial until any time up to the opening of the case for

the defence.

(4)   

If, before the question of fitness to stand trial falls to be determined,

the court finds the accused not guilty on the charge or each of the

charges on which he is being tried, that question shall not be

10

determined.

(5)   

Subject to subsections (3) and (4) above, the question of fitness to

stand trial shall be determined as soon as it arises.

(6)   

The question of fitness to stand trial shall be determined by the judge

advocate sitting alone.

15

(7)   

A judge advocate shall not make a determination under subsection

(6) above except on the written or oral evidence of two or more

registered medical practitioners at least one of whom is duly

approved.

115B    

Finding that the accused did the act or made the omission charged

20

(1)   

This section applies where in accordance with section 115A(6) above

it is determined by a judge advocate that the accused is unfit to stand

trial.

(2)   

The trial shall not proceed or further proceed but it shall be

determined by the court—

25

(a)   

on the evidence (if any) already given in the trial, and

(b)   

on such evidence as may be adduced or further adduced by

the prosecution, or adduced by a person appointed by the

judge advocate under this section to put the case for the

defence,

30

   

whether it is satisfied, as respects the charge or each of the charges

on which the accused was to be or was being tried, that he did the act

or made the omission charged against him as the offence.

(3)   

If as respects that charge or any of those charges the court is satisfied

as mentioned in subsection (2) above, it shall make a finding that the

35

accused did the act or made the omission charged against him.

(4)   

If as respects that charge or any of those charges the court is not so

satisfied, the court shall find the accused not guilty as if on the charge

in question the trial had proceeded to a conclusion.

(5)   

Where the question of fitness to stand trial was determined after

40

arraignment of the accused, the determination under subsection (2)

above shall be made by the court-martial by whom he was being

tried.

116     

Findings of insanity

(1)   

Where, on the trial of a person by court-martial, the court is satisfied,

45

as respects the charge or any of the charges on which he is being

 

 

Domestic Violence, Crime and Victims Bill [HL]
Schedule 3 — Unfitness to stand trial and insanity: courts-martial etc

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tried, that the accused did the act or made the omission charged

against him as the offence but that at the time of that act or omission

he was insane, the court shall find that the accused was not guilty of

that offence by reason of insanity.

(2)   

No finding under subsection (1) above shall be made except on the

5

written or oral evidence of two or more registered medical

practitioners at least one of whom is duly approved.

116A    

Powers to deal with person unfit to stand trial or not guilty by reason

of insanity

(1)   

This section applies where, on a trial of a person by a court-martial—

10

(a)   

the accused is found to be unfit to stand trial and to have

done the act or made the omission charged against him; or

(b)   

the accused is found not guilty by reason of insanity.

(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 finding relates is an offence the

sentence for which is fixed by law, and

20

(b)   

the court has power to make a hospital order,

   

the court shall make a hospital order with a restriction order

(whether or not it would have power to make a restriction order

apart from this subsection).

(4)   

The functions of the court under this section shall be exercised by the

25

judge advocate (or, where subsection (5) below applies, the judicial

officer) sitting alone, and section 95(2) and (3) above shall not apply.

(5)   

Any function of the court under this section exercisable after an

adjournment or an appeal shall be exercisable by a judicial officer

if—

30

(a)   

the court ordering the adjournment, or (as the case may be)

the Courts-Martial Appeal Court, so orders; or

(b)   

the Judge Advocate General so directs.

(6)   

In this Act—

   

“hospital order” has the meaning given in section 37 of the

35

Mental Health Act 1983;

   

“restriction order” has the meaning given to it by section 41 of

that Act;

   

“supervision order” means an order which requires the person

in respect of whom it is made (“the supervised person”) to be

40

under the supervision of a person (“the supervising officer”)

for a period specified in the order of not more than two years.

116B Orders under the Mental Health Act

(1)   

In relation to the making of an order by virtue of subsection (2)(a) of

section 116A above, section 37 (hospital orders etc) of the Mental

45

Health Act 1983 (“the 1983 Act”) shall have effect as if—

 

 

Domestic Violence, Crime and Victims Bill [HL]
Schedule 3 — Unfitness to stand trial and insanity: courts-martial etc

49

 

(a)   

the reference in subsection (1) to a person being convicted

before the Crown Court included a reference to the case

where section 116A above applies;

(b)   

the words after “punishable with imprisonment” and before

“or is convicted” were omitted; and

5

(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.”

10

(2)   

In relation to a case where section 116A above applies but the court

has not yet made one of the disposals mentioned in subsection (2) of

that section—

(a)   

section 35 of the 1983 Act (remand to hospital for report on

accused’s mental condition) shall have effect with the

15

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 “(other than an offence the sentence for which is fixed

by law)” in subsection (2);

20

(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

(d)   

section 38 of that Act (interim hospital orders) shall have

effect as if—

25

(i)   

the reference in subsection (1) to a person being

convicted before the Crown Court included a

reference to the case where section 116A above

applies; and

(ii)   

the words “(other than an offence the sentence for

30

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, that Act shall apply—

(a)   

as if references to the Crown Court were references to a court-

35

martial;

(b)   

as if references to an offender were references to a person in

whose case section 116A above applies (references to an

offence being construed accordingly); and

(c)   

with such further modifications as may be prescribed.

40

(4)   

The Secretary of State may by regulations make provision with

respect to the admission to, detention in, and release from, hospital

of any person in respect of whom an order is made under the 1983

Act by virtue of this Act.

   

Regulations under this subsection may in particular make provision

45

for a person in respect of whom such an order has been made to be

conveyed to, and detained in, a place of safety pending his admission

to hospital.

(5)   

Where—

 

 

Domestic Violence, Crime and Victims Bill [HL]
Schedule 3 — Unfitness to stand trial and insanity: courts-martial etc

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(a)   

a person is detained in pursuance of a hospital order which

the court had power to make by virtue of section 116A(1)(a)

above, and

(b)   

the court also made a restriction order, and that order has not

ceased to have effect,

5

   

the Secretary of State, if satisfied after consultation with the

responsible medical officer that the person can properly be tried,

may either remit the person for trial before a court-martial or direct

that he be tried before a civil court.

   

In this subsection “responsible medical officer” means the registered

10

medical practitioner in charge of the person’s treatment.

(6)   

The Secretary of State may by regulations make provision

supplementing subsection (5) above, including in particular—

(a)   

provision for a person in whose case that subsection applies

to be conveyed to a court or place of detention and to be

15

detained in such a place;

(b)   

provision for the hospital order and the restriction order to

cease to have effect at such time as may be prescribed.

116C Supervision orders

(1)   

The court shall not make an order under section 116A(2)(b) above

20

unless it is satisfied—

(a)   

that, having regard to all the circumstances of the case, the

making of a supervision order is the most suitable means of

dealing with the accused;

(b)   

that the supervising officer intended to be specified in the

25

order is willing to undertake the supervision; and

(c)   

that arrangements have been made for any treatment which

(under subsection (2) below) is intended to be specified in the

order.

(2)   

An order under section 116A(2)(b) above may, in accordance with

30

regulations under subsection (3) below, require the supervised

person to submit, during the whole of that period or such part of it

as may be specified in the order, to treatment by or under the

direction of a registered medical practitioner.

(3)   

The Secretary of State may—

35

(a)   

by order direct that the definition of “supervision order” in

section 116A(6) above shall be amended by substituting, for

the period for the time being specified there, such period as

may be specified in the order under this subsection;

(b)   

by regulations make further provision in relation to

40

supervision orders.

(4)   

Regulations under subsection (3) above may in particular make

provision—

(a)   

as to the procedure to be followed by a court-martial making

a supervision order;

45

(b)   

as the requirements which may be specified in such an order;

(c)   

as to the descriptions of supervising officer who may be so

specified;

 

 

Domestic Violence, Crime and Victims Bill [HL]
Schedule 3 — Unfitness to stand trial and insanity: courts-martial etc

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(d)   

for treatment to be provided at a place other than the place

specified in the order in accordance with arrangements made

by the medical practitioner by whom or under whose

direction the supervised person is being treated;

(e)   

for the amendment and revocation of any supervision order.

5

116D Provisions supplementary to sections 115A to 116C

(1)   

In this section and sections 115A to 116C above—

   

“duly approved” means approved for the purposes of section 12

of the Mental Health Act 1983 by the Secretary of State as

having special experience in the diagnosis and treatment of

10

mental disorder (within the meaning of that Act);

   

“prescribed” means prescribed by regulations made by the

Secretary of State.

(2)   

For the purposes of the provisions of sections 115A and 116 of this

Act which permit a court to act on the written evidence of a

15

registered medical practitioner or a registered medical practitioner

who is duly approved, a report in writing purporting to be signed by

a registered medical practitioner or a registered medical practitioner

who is duly approved may, subject to subsection (3) below, be

received in evidence without proof of the signature of the

20

practitioner and without proof that he has the requisite qualifications

or is duly approved; but the court may require the signatory of any

such report to be called to give oral evidence.

(3)   

Where, in pursuance of a direction of the court, any such report is

tendered in evidence otherwise than by or on behalf of the accused,

25

then—

(a)   

if the accused is represented by counsel or a solicitor, a copy

of the report shall be given to his counsel or solicitor;

(b)   

if the accused is not so represented, the substance of the

report shall be disclosed to him; and

30

(c)   

the accused may require the signatory of the report to be

called to give oral evidence, and evidence to rebut the

evidence contained in the report may be called by the accused

or on his behalf.

(4)   

The power of the Secretary of State to make regulations under

35

sections 116A to 116C above, and orders under section 116C(3)

above, shall be exercisable by statutory instrument which shall be

subject to annulment in pursuance of a resolution of either House of

Parliament.”

2          

In section 225(1) of the Army Act 1955 and in section 223(1) of the Air Force

40

Act 1955 (general provisions as to interpretation) insert at the appropriate

places—

           

““hospital order” has the meaning assigned to it by section 116A(6) of

this Act;”;

           

““restriction order” has the meaning assigned to it by section 116A(6) of

45

this Act;”;

           

““supervision order” has the meaning assigned to it by section 116A(6)

of this Act;”.

 

 

 
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