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]
Part 2 — Criminal Justice
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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
“under Article 4 or 6”.
(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
under this Article.
(5)
Where—
(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.”

Domestic Violence, Crime and Victims Bill [HL]
Part 2 — Criminal Justice
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Surcharges
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—
“Surcharges
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
it—
(a)
discharges him absolutely, or
(b)
makes an order under the Mental Health Act 1983 in respect of
him.
20
161B
Amount of surcharge
(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
on—
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
insert—
“13
Where under section 161A of the Criminal Justice Act 2003 a court
orders the payment of a surcharge.”
40

Domestic Violence, Crime and Victims Bill [HL]
Part 2 — Criminal Justice
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(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
held by him.”
(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
applicable,

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—

Domestic Violence, Crime and Victims Bill [HL]
Part 2 — Criminal Justice
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(a)
provide for this Part of this Act to have effect, in cases to which
the regulations apply, with such modifications as may be
specified;
(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
impracticable.
(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
jury.
(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
trial by jury.
(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
without a jury.
(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
counts.
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.

Domestic Violence, Crime and Victims Bill [HL]
Part 2 — Criminal Justice
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(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.
(6)
In this section—
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
(c. 25).
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
proceedings.
(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
jury).
(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
court.
(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
conviction, and
(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
(a).
(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.

Domestic Violence, Crime and Victims Bill [HL]
Part 2 — Criminal Justice
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(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
disregarded.
(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
returned by a jury.
20
Rules of court
(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
or 19 must be done.
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
amended as follows.

Domestic Violence, Crime and Victims Bill [HL]
Part 2 — Criminal Justice
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(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
to plead etc.
(1)
This section applies where—
15
(a)
a special verdict is returned that the accused is not guilty by
reason of insanity; or
(b)
findings have been made that the accused is under a disability
and that he did the act or made the omission charged against
him.
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.
(3)
Where—
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
this subsection).
(4)
In this section—

“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 that
35
Act;

“supervision order” has the meaning given in Part 1 of Schedule
1A to this Act.
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—