Domestic Violence, Crime and Victims Bill [HL]

House of Commons

Session 2003 - 04
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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
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(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
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(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;”.