Domestic Violence, Crime and Victims Bill [HL]

House of Commons

Session 2003 - 04
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Other Bills before Parliament

Domestic Violence, Crime and Victims Bill [HL]

Domestic Violence, Crime and Victims Bill [HL]
Schedule 3 — Unfitness to stand trial and insanity: courts-martial etc
52

Naval Discipline Act 1957 (c. 53)
3
For section 63 of the Naval Discipline Act 1957 (provisions where accused
found insane) substitute—
“Findings of unfitness to stand trial and insanity
62A
Fitness to stand trial
5
(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
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
10
(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
15
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
20
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.
25
(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.
62B
Finding that the accused did the act or made the omission charged
30
(1)
This section applies where in accordance with section 62A(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—
35
(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,
40

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.

Domestic Violence, Crime and Victims Bill [HL]
Schedule 3 — Unfitness to stand trial and insanity: courts-martial etc
53

(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
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
5
in question the trial had proceeded to a conclusion.
(5)
Where the question of fitness to stand trial was determined after
arraignment of the accused, the determination under subsection (2)
above shall be made by the court-martial by whom he was being
tried.
10
63
Findings of insanity
(1)
Where, on the trial of a person by court-martial, the court is satisfied,
as respects the charge or any of the charges on which he is being
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
15
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
written or oral evidence of two or more registered medical
practitioners at least one of whom is duly approved.
20
63A
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—
(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
25
(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);
(b)
a supervision order; or
(c)
an order for his absolute discharge.
30
(3)
Where—
(a)
the offence to which the finding relates is an offence the
sentence for which is fixed by law, and
(b)
the court has power to make a hospital order,

the court shall make a hospital order with a restriction order
35
(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
judge advocate (or, where subsection (5) below applies, the judicial
officer) sitting alone, and sections 56A(3) and 57 above shall not
40
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—
(a)
the court ordering the adjournment, or (as the case may be)
45
the Courts-Martial Appeal Court, so orders; or

Domestic Violence, Crime and Victims Bill [HL]
Schedule 3 — Unfitness to stand trial and insanity: courts-martial etc
54

(b)
the Judge Advocate of Her Majesty’s Fleet so directs.
(6)
In this Act—

“hospital order” has the meaning given in section 37 of the
Mental Health Act 1983;

“restriction order” has the meaning given to it by section 41 of
5
that Act;

“supervision order” means an order which requires the person
in respect of whom it is made (“the supervised person”) to be
under the supervision of a person (“the supervising officer”)
for a period specified in the order of not more than two years.
10
63B Orders under the Mental Health Act
(1)
In relation to the making of an order by virtue of subsection (2)(a) of
section 63A above, section 37 (hospital orders etc) of the Mental
Health Act 1983 (“the 1983 Act”) shall have effect as if—
(a)
the reference in subsection (1) to a person being convicted
15
before the Crown Court included a reference to the case
where section 63A above applies;
(b)
the words after “punishable with imprisonment” and before
“or is convicted” were omitted; and
(c)
for subsections (4) and (5) there were substituted—
20
“(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.”
(2)
In relation to a case where section 63A above applies but the court
25
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
omission of the words after paragraph (b) in subsection (3);
30
(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);
(c)
references in sections 35 and 36 of that Act to an accused
35
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—
(i)
the reference in subsection (1) to a person being
40
convicted before the Crown Court included a
reference to the case where section 63A above applies;
and
(ii)
the words “(other than an offence the sentence for
which is fixed by law)” in that subsection were
45
omitted.
(3)
In relation to the making of any order under the 1983 Act by virtue
of this Act, that Act shall apply—

Domestic Violence, Crime and Victims Bill [HL]
Schedule 3 — Unfitness to stand trial and insanity: courts-martial etc
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(a)
as if references to the Crown Court were references to a court-
martial;
(b)
as if references to an offender were references to a person in
whose case section 63A above applies (references to an
offence being construed accordingly); and
5
(c)
with such further modifications as may be prescribed.
(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.
10

Regulations under this subsection may in particular make provision
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—
15
(a)
a person is detained in pursuance of a hospital order which
the court had power to make by virtue of section 63A(1)(a)
above, and
(b)
the court also made a restriction order, and that order has not
ceased to have effect,
20

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
25
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
30
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.
63C Supervision orders
(1)
The court shall not make an order under section 63A(2)(b) above
35
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
40
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 63A(2)(b) above may, in accordance with
45
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.

Domestic Violence, Crime and Victims Bill [HL]
Schedule 3 — Unfitness to stand trial and insanity: courts-martial etc
56

(3)
The Secretary of State may—
(a)
by order direct that the definition of “supervision order” in
section 63A(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;
5
(b)
by regulations make further provision in relation to
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
10
a supervision order;
(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;
(d)
for treatment to be provided at a place other than the place
15
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.
63D Provisions supplementary to sections 62A to 63C
20
(1)
In this section and sections 62A to 63C 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
mental disorder (within the meaning of that Act);
25

“prescribed” means prescribed by regulations made by the
Secretary of State.
(2)
For the purposes of the provisions of sections 62A and 63 of this Act
which permit a court to act on the written evidence of a registered
medical practitioner or a registered medical practitioner who is duly
30
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 practitioner and
without proof that he has the requisite qualifications or is duly
35
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,
then—
40
(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
(c)
the accused may require the signatory of the report to be
45
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.

Domestic Violence, Crime and Victims Bill [HL]
Schedule 3 — Unfitness to stand trial and insanity: courts-martial etc
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(4)
The power of the Secretary of State to make regulations under
sections 63A to 63C above, and orders under section 63C(3) above,
shall be exercisable by statutory instrument which shall be subject to
annulment in pursuance of a resolution of either House of
Parliament.”
5
4
In the proviso to section 56(3) of that Act (court-martial not to be adjourned
for more than six days), after “except with the consent of the accused and the
prosecuting authority” insert “, or for the purpose of exercising powers
under section 63A of this Act,”.
5
In section 135(1) of that Act (general provisions as to interpretation) insert at
10
the appropriate places—

““hospital order” has the meaning assigned to it by section 63A(6) of
this Act;”;

““restriction order” has the meaning assigned to it by section 63A(6) of
this Act;”;
15

““supervision order” has the meaning assigned to it by section 63A(6)
of this Act;”.
Courts-Martial (Appeals) Act 1968 (c. 20)
6
The Courts-Martial (Appeals) Act 1968 is amended as follows.
7
For section 16 substitute—
20
“16
Substitution of finding of insanity or findings of unfitness to stand
trial etc.
(1)
This section applies where, on an appeal against conviction, the
Appeal Court, on the written or oral evidence of two or more
registered medical practitioners at least one of whom is duly
25
approved, are of opinion—
(a)
that the proper finding would have been one of not guilty by
reason of insanity; or
(b)
that the case is not one where there should have been a
finding of not guilty, but that there should have been findings
30
that the accused was unfit to stand trial and that he did the
act or made the omission charged against him.
(2)
The Appeal Court shall make in respect of the appellant—
(a)
a hospital order (with or without a restriction order);
(b)
a supervision order; or
35
(c)
an order for his absolute discharge.
(3)
Where—
(a)
the offence to which the appeal relates is an offence the
sentence for which is fixed by law, and
(b)
the Appeal Court have power to make a hospital order,
40

the Appeal Court shall make a hospital order with a restriction order
(whether or not they would have power to make a restriction order
apart from this subsection).

Domestic Violence, Crime and Victims Bill [HL]
Schedule 3 — Unfitness to stand trial and insanity: courts-martial etc
58

(4)
The provisions of, or made under, the sections specified below shall
apply (with any necessary modifications) in relation to the Appeal
Court as they apply in relation to a court-martial.

The sections are—
(c)
where the relevant Service Act is the Army Act, sections 116B
5
to 116D of that Act;
(d)
where the relevant Service Act is the Air Force Act, sections
116B to 116D of that Act;
(e)
where the relevant Service Act is the Naval Discipline Act,
sections 63B to 63D of that Act.
10
(5)
Where the Appeal Court make an interim hospital order by virtue of
this section—
(a)
the power of renewing or terminating it and of dealing with
the appellant on its termination shall be exercisable by a
judicial officer and not by the Appeal Court; and
15
(b)
section 38(7) of the Mental Health Act 1983 (absconding
offenders) shall have effect as if the reference to the court that
made the order were a reference to a judicial officer.
(6)
Where the Appeal Court make a supervision order by virtue of this
section, any power of revoking or amending it shall be exercisable by
20
a judicial officer and not by the Appeal Court.”
8
In section 21 (appeal against finding of not guilty by reason of insanity), in
subsection (1), after “except” insert “section 8(2) and”.
9
In section 22 (consequences where appeal under section 21 allowed), at the
beginning of subsection (4) insert “Subject to section 23 below,”.
25
10
For section 23 substitute—
“23
Substitution of findings of unfitness to stand trial etc.
(1)
This section applies where, on an appeal under section 21 of this Act,
the Appeal Court, on the written or oral evidence of two or more
registered medical practitioners at least one of whom is duly
30
approved, are of opinion that—
(a)
the case is not one where there should have been a finding of
not guilty; but
(b)
there should have been findings that the accused was unfit to
stand trial and that he did the act or made the omission
35
charged against him.
(2)
The Appeal Court shall make in respect of the appellant—
(a)
a hospital order (with or without a restriction order);
(b)
a supervision order; or
(c)
an order for his absolute discharge.
40
(3)
Where—
(a)
the offence to which the appeal relates is an offence the
sentence for which is fixed by law, and
(b)
the Appeal Court have power to make a hospital order,

the Appeal Court shall make a hospital order with a restriction order
45
(whether or not they would have power to make a restriction order
apart from this subsection).