|
| |
|
| the reference in subsection (1) to a court before which a person is |
| |
acquitted of an offence is to be read as referring to that court. |
| |
(6) | A person made subject to an order under this section has the same right |
| |
of appeal against the order as if— |
| |
(a) | he had been convicted of the offence in question before the court |
| 5 |
which made the order, and |
| |
(b) | the order had been made under section 5.” |
| |
13 | Restraining orders: Northern Ireland |
| |
(1) | In Article 7 of the Protection from Harassment (Northern Ireland) Order 1997 |
| |
(S.I. 1997/1180 (N.I. 9)) (power to make restraining order where defendant |
| 10 |
convicted of offence under Article 4 or 6 of that Order), in paragraph (1) omit |
| |
| |
(2) | After paragraph (4) of that Article insert— |
| |
“(4A) | Any person mentioned in the order is entitled to be heard on the |
| |
hearing of an application under paragraph (4).” |
| 15 |
(3) | After paragraph (6) of that Article insert— |
| |
“(7) | A court dealing with a person for an offence under this Article may |
| |
vary or discharge the order in question by a further order.” |
| |
(4) | After that Article insert— |
| |
“7A | Restraining orders on acquittal |
| 20 |
(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. |
| |
(2) | In proceedings under this Article both the prosecution and the defence |
| 25 |
may lead, as further evidence, any evidence that would be admissible |
| |
in proceedings for an injunction under Article 5. |
| |
(3) | Paragraphs (3) to (7) of Article 7 apply to an order under this Article as |
| |
they apply to an order under that one. |
| |
(4) | Where the Court of Appeal allow an appeal against conviction they |
| 30 |
may remit the case to the Crown Court to consider whether to proceed |
| |
| |
| |
(a) | a county court allows an appeal against conviction, or |
| |
(b) | a case is remitted to the Crown Court under paragraph (4), |
| 35 |
| the reference in paragraph (1) to a court before which a person is |
| |
acquitted of an offence is to be read as referring to that court. |
| |
(6) | A person made subject to an order under this Article has the same right |
| |
of appeal against the order as if— |
| |
(a) | he had been convicted of the offence in question before the court |
| 40 |
which made the order, and |
| |
(b) | the order had been made under Article 7.” |
| |
|
| |
|
| |
|
| |
14 | Surcharge payable on conviction |
| |
(1) | In Chapter 1 of Part 12 of the Criminal Justice Act 2003 (c. 44) (general |
| |
provisions about sentencing), after section 161 insert— |
| |
| 5 |
161A | Court’s duty to order payment of surcharge |
| |
(1) | A court when dealing with a person for one or more offences must also |
| |
(subject to subsections (2) and (3)) order him to pay a surcharge. |
| |
(2) | Subsection (1) does not apply in such cases as may be prescribed by an |
| |
order made by the Secretary of State. |
| 10 |
(3) | Where a court dealing with an offender considers— |
| |
(a) | that it would be appropriate to make a compensation order, but |
| |
(b) | that he has insufficient means to pay both the surcharge and |
| |
appropriate compensation, |
| |
| the court must reduce the surcharge accordingly (if necessary to nil). |
| 15 |
(4) | For the purposes of this section a court does not “deal with” a person if |
| |
| |
(a) | discharges him absolutely, or |
| |
(b) | makes an order under the Mental Health Act 1983 in respect of |
| |
| 20 |
| |
(1) | The surcharge payable under section 161A is such amount as the |
| |
Secretary of State may specify by order. |
| |
(2) | An order under this section may provide for the amount to depend |
| |
| 25 |
(a) | the offence or offences committed, |
| |
(b) | how the offender is otherwise dealt with (including, where the |
| |
offender is fined, the amount of the fine), |
| |
(c) | the age of the offender. |
| |
| This is not to be read as limiting section 330(3) (power to make different |
| 30 |
provision for different purposes etc).” |
| |
(2) | In section 164 of that Act (fixing of fines), after subsection (4) insert— |
| |
“(4A) | In applying subsection (3), a court must not reduce the amount of a fine |
| |
on account of any surcharge it orders the offender to pay under section |
| |
161A, except to the extent that he has insufficient means to pay both.” |
| 35 |
(3) | In Part 1 of Schedule 9 to the Administration of Justice Act 1970 (c. 31) (cases |
| |
where payment enforceable as on summary conviction), after paragraph 12 |
| |
| |
“13 | Where under section 161A of the Criminal Justice Act 2003 a court |
| |
orders the payment of a surcharge.” |
| 40 |
|
| |
|
| |
|
(4) | In Schedule 5 to the Courts Act 2003 (c. 39) (collection of fines), in paragraph |
| |
1(1) (application of Schedule), after “a fine” insert “or a surcharge imposed |
| |
under section 161A of the Criminal Justice Act 2003”. |
| |
(5) | The Secretary of State may by order— |
| |
(a) | make provision amending Schedule 5 (collection of fines) or Schedule |
| 5 |
6 (discharge of fines by unpaid work) to the Courts Act 2003 in its |
| |
application by virtue of subsection (3) or (4) to surcharges; |
| |
(b) | make provision for any part of Schedule 5, or the whole or any part of |
| |
Schedule 6, not to apply to surcharges; |
| |
(c) | make amendments to any enactment that are consequential on |
| 10 |
provision made under paragraph (a) or (b). |
| |
15 | Increase in maximum on-the-spot penalty for disorderly behaviour |
| |
(1) | In Chapter 1 of Part 1 of the Criminal Justice and Police Act 2001 (c. 16) (on-the- |
| |
spot penalties for disorderly behaviour), section 3 is amended as follows. |
| |
(2) | In subsection (2) (maximum penalty that may be prescribed), at the end insert |
| 15 |
“plus a half of the relevant surcharge”. |
| |
(3) | After that subsection insert— |
| |
“(2A) | The “relevant surcharge”, in relation to a person of a given age, is the |
| |
amount payable by way of surcharge under section 161A of the |
| |
Criminal Justice Act 2003 by a person of that age who is fined the |
| 20 |
maximum amount for the offence.” |
| |
16 | Higher fixed penalty for repeated road traffic offences |
| |
(1) | The Road Traffic Offenders Act 1988 (c. 53) is amended as follows. |
| |
(2) | In section 53 (amount of fixed penalty), after subsection (2) insert— |
| |
“(3) | In particular, in relation to England and Wales an order made under |
| 25 |
subsection (1)(a) may prescribe a higher fixed penalty in a case where, |
| |
in the period of three years ending with the date of the offence in |
| |
question, the offender committed an offence for which— |
| |
(a) | he was disqualified from driving, or |
| |
(b) | penalty points were endorsed on the counterpart of any licence |
| 30 |
| |
(3) | At the end of section 84 (regulations) (which becomes subsection (1)) insert— |
| |
“(2) | The Secretary of State may by regulations provide that where— |
| |
(a) | a conditional offer has been issued under section 75 of this Act, |
| |
(b) | the amount of the penalty stated in the offer is not the higher |
| 35 |
amount applicable by virtue of section 53(3) of this Act, and |
| |
(c) | it subsequently appears that that higher amount is in fact |
| |
| |
| the fixed penalty clerk may issue a further notice (a “surcharge notice”) |
| |
requiring payment of the difference between the two amounts. |
| 40 |
(3) | Regulations under subsection (2) above may— |
| |
|
| |
|
| |
|
(a) | provide for this Part of this Act to have effect, in cases to which |
| |
the regulations apply, with such modifications as may be |
| |
| |
(b) | make provision for the collection and enforcement of amounts |
| |
due under surcharge notices.” |
| 5 |
Trial by jury of sample counts only |
| |
17 | Application by prosecution for certain counts to be tried without a jury |
| |
(1) | The prosecution may apply to a judge of the Crown Court for a trial on |
| |
indictment to take place on the basis that the trial of some, but not all, of the |
| |
counts included in the indictment may be conducted without a jury. |
| 10 |
(2) | If such an application is made and the judge is satisfied that the following three |
| |
conditions are fulfilled, he may make an order for the trial to take place on the |
| |
basis that the trial of some, but not all, of the counts included in the indictment |
| |
may be conducted without a jury. |
| |
(3) | The first condition is that the number of counts included in the indictment is |
| 15 |
likely to mean that a trial by jury involving all of those counts would be |
| |
| |
(4) | The second condition is that, if an order under subsection (2) were made, each |
| |
count or group of counts which would accordingly be tried with a jury can be |
| |
regarded as a sample of counts which could accordingly be tried without a |
| 20 |
| |
(5) | The third condition is that it is in the interests of justice for an order under |
| |
subsection (2) to be made. |
| |
(6) | In deciding whether or not to make an order under subsection (2), the judge |
| |
must have regard to any steps which might reasonably be taken to facilitate a |
| 25 |
| |
(7) | But a step is not to be regarded as reasonable if it could lead to the possibility |
| |
of a defendant in the trial receiving a lesser sentence than would be the case if |
| |
that step were not taken. |
| |
(8) | An order under subsection (2) must specify the counts which may be tried |
| 30 |
| |
(9) | For the purposes of this section and sections 18 to 20, a count (“the sample |
| |
count”) is to be regarded as a sample of other counts if— |
| |
(a) | the defendant in respect of each count is the same person, and |
| |
(b) | the judge considers that the sample count is a sample of the other |
| 35 |
| |
18 | Procedure for applications under section 17 |
| |
(1) | An application under section 17 must be determined at a preparatory hearing. |
| |
(2) | Section 7(1) of the 1987 Act and section 29(2) of the 1996 Act are to have effect |
| |
as if the purposes there mentioned included the purpose of determining an |
| 40 |
application under section 17. |
| |
|
| |
|
| |
|
(3) | Section 29(1) of the 1996 Act is to have effect as if the grounds on which a judge |
| |
of the Crown Court may make an order under that provision included the |
| |
ground that an application under section 17 has been made. |
| |
(4) | The parties to a preparatory hearing at which an application under section 17 |
| |
is to be determined must be given an opportunity to make representations with |
| 5 |
respect to the application. |
| |
(5) | Section 9(11) of the 1987 Act and section 35(1) of the 1996 Act are to have effect |
| |
as if they also provided for an appeal to the Court of Appeal to lie from the |
| |
determination by a judge of an application under section 17. |
| |
| 10 |
| “preparatory hearing” means a preparatory hearing within the meaning |
| |
of the 1987 Act or Part 3 of the 1996 Act; |
| |
| “the 1987 Act” means the Criminal Justice Act 1987 (c. 38); |
| |
| “the 1996 Act” means the Criminal Procedure and Investigations Act 1996 |
| |
| 15 |
19 | Effect of order under section 17(2) |
| |
(1) | The effect of an order under section 17(2) is that where, in the course of the |
| |
proceedings to which the order relates, a defendant is found guilty by a jury on |
| |
a count which can be regarded as a sample of other counts to be tried in those |
| |
proceedings, those other counts may be tried without a jury in those |
| 20 |
| |
(2) | Where the trial of a count is conducted without a jury because of an order |
| |
under section 17(2), the court is to have all the powers, authorities and |
| |
jurisdiction which the court would have had if the trial of that count had been |
| |
conducted with a jury (including power to determine any question and to |
| 25 |
make any finding which would be required to be determined or made by a |
| |
| |
(3) | Except where the context otherwise requires, any reference in an enactment to |
| |
a jury, the verdict of a jury or the finding of a jury is to be read, in relation to |
| |
the trial of a count conducted without a jury because of an order under section |
| 30 |
17(2), as a reference to the court, the verdict of the court or the finding of the |
| |
| |
(4) | Where the trial of a count is conducted without a jury because of an order |
| |
under section 17(2) and the court convicts the defendant of that count— |
| |
(a) | the court must give a judgment which states the reasons for the |
| 35 |
conviction at, or as soon as reasonably practicable after, the time of the |
| |
| |
(b) | the reference in section 18(2) of the Criminal Appeal Act 1968 (c. 19) |
| |
(notice of appeal or of application for leave to appeal to be given within |
| |
28 days from date of conviction etc) to the date of the conviction is to be |
| 40 |
read as a reference to the date of the judgment mentioned in paragraph |
| |
| |
(5) | Where, in the case of proceedings in respect of which an order under section |
| |
17(2) has been made, a jury convicts a defendant of a count, time does not begin |
| |
to run under section 18(2) of the Criminal Appeal Act 1968 in relation to an |
| 45 |
appeal against that conviction until the date on which the proceedings end. |
| |
|
| |
|
| |
|
(6) | In determining for the purposes of subsection (5) the date on which |
| |
proceedings end, any part of those proceedings which takes place after the |
| |
time when matters relating to sentencing begin to be dealt with is to be |
| |
| |
(7) | Nothing in this section or section 17, 18 or 20 affects the requirement under |
| 5 |
section 4A of the Criminal Procedure (Insanity) Act 1964 (c. 84) that any |
| |
question, finding or verdict mentioned in that section be determined, made or |
| |
| |
| |
(1) | Rules of court may make such provision as appears to the authority making |
| 10 |
them to be necessary or expedient for the purposes of sections 17 to 19. |
| |
(2) | Without limiting subsection (1), rules of court may in particular make |
| |
provision for time limits within which applications under section 17 must be |
| |
made or within which other things in connection with that section or section 18 |
| |
| 15 |
(3) | Nothing in this section is to be taken as affecting the generality of any |
| |
enactment conferring powers to make rules of court. |
| |
21 | Application of sections 17 to 20 to Northern Ireland |
| |
(1) | In their application to Northern Ireland, sections 17 to 20 have effect subject to |
| |
the modifications in Schedule 1. |
| 20 |
(2) | Sections 17 to 20 do not apply in relation to a trial to which section 75 of the |
| |
Terrorism Act 2000 (c. 11) (trial without jury for certain offences) applies. |
| |
Unfitness to plead and insanity |
| |
22 | Procedure for determining fitness to plead: England and Wales |
| |
(1) | The Criminal Procedure (Insanity) Act 1964 is amended as follows. |
| 25 |
(2) | In section 4 (finding of unfitness to plead), in subsection (5) (question of fitness |
| |
to be determined by a jury), for the words from “by a jury” to the end substitute |
| |
“by the court without a jury”. |
| |
(3) | In subsection (6) of that section, for “A jury” substitute “The court”. |
| |
(4) | In subsection (1) of section 4A (finding that the accused did the act or omission |
| 30 |
charged against him), for “jury” substitute “court”. |
| |
(5) | For subsection (5) of that section substitute— |
| |
“(5) | Where the question of disability was determined after arraignment of |
| |
the accused, the determination under subsection (2) is to be made by |
| |
the jury by whom he was being tried.” |
| 35 |
23 | Procedure for determining fitness to be tried: Northern Ireland |
| |
(1) | The Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)) is |
| |
| |
|
| |
|
| |
|
(2) | In Article 49 (finding of unfitness to be tried), in paragraph (4) (question of |
| |
fitness to be determined by a jury), for the words from “by a jury” to the end |
| |
substitute “by the court without a jury”. |
| |
(3) | In paragraph (4A) of that Article, for “A jury” substitute “The court”. |
| |
(4) | In paragraph (1) of Article 49A (finding that the accused did the act or omission |
| 5 |
charged against him), for “jury” substitute “court”. |
| |
(5) | For paragraph (5) of that Article substitute— |
| |
“(5) | Where the question of fitness to be tried was determined after |
| |
arraignment of the accused, the determination under paragraph (2) is |
| |
to be made by the jury by whom he was being tried.” |
| 10 |
24 | Powers of court on finding of insanity or unfitness to plead etc |
| |
(1) | For section 5 of the Criminal Procedure (Insanity) Act 1964 (c. 84) substitute— |
| |
“5 | Powers to deal with persons not guilty by reason of insanity or unfit |
| |
| |
(1) | This section applies where— |
| 15 |
(a) | a special verdict is returned that the accused is not guilty by |
| |
| |
(b) | findings have been made that the accused is under a disability |
| |
and that he did the act or made the omission charged against |
| |
| 20 |
(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. |
| |
| 25 |
(a) | the offence to which the special verdict or the findings relate is |
| |
an offence the sentence for which is fixed by law, and |
| |
(b) | the court have power to make a hospital order, |
| |
| the court shall make a hospital order with a restriction order (whether |
| |
or not they would have power to make a restriction order apart from |
| 30 |
| |
| |
| “hospital order” has the meaning given in section 37 of the Mental |
| |
| |
| “restriction order” has the meaning given to it by section 41 of that |
| 35 |
| |
| “supervision order” has the meaning given in Part 1 of Schedule |
| |
| |
5A | Orders made under or by virtue of section 5 |
| |
(1) | In relation to the making of an order by virtue of subsection (2)(a) of |
| 40 |
section 5 above, section 37 (hospital orders etc) of the Mental Health Act |
| |
1983 (“the 1983 Act”) shall have effect as if— |
| |
|
| |
|