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Domestic Violence, Crime and Victims Bill [HL]


Domestic Violence, Crime and Victims Bill [HL]
Part 2 — Criminal Justice

8

 

   

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

9

 

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

11

 

(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

12

 

(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

14

 

(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—

 

 

 
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Revised 8 July 2004