Domestic Violence, Crime and Victims Bill [HL]

House of Lords

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 1 — Domestic violence etc
1

A
Bill
To
Amend Part 4 of the Family Law Act 1996 and the Protection from
Harassment Act 1997; to make provision about homicide; to make common
assault an arrestable offence; to provide for a procedure under which a jury
tries only sample counts on an indictment; and to make provision in relation
Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and
consent of the Lords Spiritual and Temporal, and Commons, in this present
Parliament assembled, and by the authority of the same, as follows:—
Part 1
Domestic violence etc
Amendments to Part 4 of the Family Law Act 1996
1
Breach of non-molestation order to be a criminal offence
In Part 4 of the Family Law Act 1996 (c. 27) (family homes and domestic
5
violence), after section 42 insert—
“42A
Offence of breaching non-molestation order
(1)
A person who without reasonable excuse does anything that he is
prohibited from doing by a non-molestation order is guilty of an
offence.
10
(2)
In the case of a non-molestation order made by virtue of section 45(1),
a person can be guilty of an offence under this section only in respect of
conduct engaged in at a time when he was aware of the existence of the
order.
(3)
Where a person is convicted of an offence under this section in respect
15
of any conduct, that conduct is not punishable as a contempt of court.

HL Bill 6 53/3

Domestic Violence, Crime and Victims Bill [HL]
Part 1 — Domestic violence etc
2

(4)
A person cannot be convicted of an offence under this section in respect
of any conduct which has been punished as a contempt of court.
(5)
A person guilty of an offence under this section is liable—
(a)
on conviction on indictment, to imprisonment for a term not
exceeding five years, or a fine, or both;
5
(b)
on summary conviction, to imprisonment for a term not
exceeding 12 months, or a fine not exceeding the statutory
maximum, or both.
(6)
A reference in any enactment to proceedings under this Part, or to an
order under this Part, does not include a reference to proceedings for
10
an offence under this section or to an order made in such proceedings.

“Enactment” includes an enactment contained in subordinate
legislation within the meaning of the Interpretation Act 1978 (c. 30).”
2
“Cohabitants” in Part 4 of 1996 Act to include same-sex couples
In section 62(1)(a) of the Family Law Act 1996 (c. 27) (definition of “cohabitant”
15
for the purposes of Part 4 of that Act), for the words after ““cohabitants are”
substitute “two persons who, although not married to each other, are living
together as husband and wife or (if of the same sex) in an equivalent
relationship; and”.
3
Extension of Part 4 of 1996 Act to non-cohabiting couples
20
In section 62(3) of the Family Law Act 1996 (definition of “associated” persons
for the purposes of Part 4 of that Act), after paragraph (e) insert—
“(ea)
they have or have had an intimate personal relationship with
each other which is or was of significant duration;”.
Causing or allowing the death of a child or vulnerable adult
25
4
The offence
(1)
A person (“D”) is guilty of an offence if—
(a)
a child or vulnerable adult (“V”) dies as a result of the unlawful act of a
person who—
(i)
was a member of the same household as V, and
30
(ii)
had frequent contact with him,
(b)
D was such a person at the time of that act,
(c)
at that time there was a significant risk of serious physical harm being
caused to V by the unlawful act of such a person, and
(d)
either D was the person whose act caused V’s death or—
35
(i)
D was, or ought to have been, aware of the risk mentioned in
paragraph (c),
(ii)
D failed to take such steps as he could reasonably have been
expected to take to protect V from the risk, and
(iii)
the act occurred in circumstances of the kind that D foresaw or
40
ought to have foreseen.
(2)
The prosecution does not have to prove whether it is the first alternative in
subsection (1)(d) or the second (sub-paragraphs (i) to (iii)) that applies.

Domestic Violence, Crime and Victims Bill [HL]
Part 1 — Domestic violence etc
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(3)
If D was not the mother or father of V—
(a)
D may not be charged with an offence under this section if he was
under the age of 16 at the time of the act that caused V’s death;
(b)
for the purposes of subsection (1)(d)(ii) D could not have been expected
to take any such step as is referred to there before attaining that age.
5
(4)
For the purposes of this section—
(a)
a person is to be regarded as a “member” of a particular household,
even if he does not live in that household, if he visits it so often and for
such periods of time that it is reasonable to regard him as a member of
it;
10
(b)
where V lived in different households at different times, “the same
household as V” refers to the household in which V was living at the
time of the act that caused V’s death.
(5)
For the purposes of this section an “unlawful” act is one that—
(a)
constitutes an offence, or
15
(b)
would constitute an offence but for being the act of—
(i)
a person under the age of ten, or
(ii)
a person entitled to rely on a defence of insanity.

Paragraph (b) does not apply to an act of D.
(6)
In this section—
20

“act” includes a course of conduct and also includes omission;

“child” means a person under the age of 16;

“serious” harm means harm that amounts to grievous bodily harm for the
purposes of the Offences against the Person Act 1861 (c. 100).

“vulnerable adult” means a person aged 16 or over whose ability to
25
protect himself from violence, abuse or neglect is significantly impaired
through physical or mental disability or illness, through old age or
otherwise.
(7)
A person guilty of an offence under this section is liable on conviction on
indictment to imprisonment for a term not exceeding 14 years or to a fine, or to
30
both.
5
Evidence and procedure
(1)
Where—
(a)
a person is charged in the same proceedings with an offence of murder
or manslaughter and with an offence under section 4 in respect of the
35
same death, and
(b)
in relation to the offence under section 4, the court or jury is permitted,
by virtue of section 35(3) of the Criminal Justice and Public Order Act
1994 (c. 33), to draw such inferences as appear proper from the
defendant’s failure to give evidence or refusal to answer a question,
40

the court or jury may also draw such inferences in determining whether he is
guilty on the charge of murder or manslaughter (even if there would otherwise
be no case for him to answer on that charge).
(2)
Where—
(a)
a person is charged with an offence of murder or manslaughter, and
45
(b)
he or another person is charged in the same proceedings with an
offence under section 4 in respect of the same death,

Domestic Violence, Crime and Victims Bill [HL]
Part 1 — Domestic violence etc
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the question whether there is a case to answer on the charge of murder or
manslaughter is not to be considered before the close of all the evidence at trial.
(3)
The reference in subsection (2) to the question whether there is a case to answer
includes a reference to the question whether, for the purposes of paragraph 2
of Schedule 3 to the Crime and Disorder Act 1998 (c. 37) (applications for
5
dismissal), the evidence against the person in question would be sufficient for
him to be properly convicted.
(4)
An offence under section 4 is an offence of homicide for the purposes of the
following enactments—

sections 24 and 25 of the Magistrates’ Courts Act 1980 (c. 43) (mode of trial
10
of child or young person for indictable offence);

section 51A of the Crime and Disorder Act 1998 (sending cases to the
Crown Court: children and young persons);

section 8 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6)
(power and duty to remit young offenders to youth courts for
15
sentence).
Domestic homicide reviews
6
Establishment and conduct of reviews
(1)
In this section “domestic homicide review” means a review of the
circumstances in which a person aged 16 or over has died as a result of
20
violence, abuse or neglect from—
(a)
a person to whom he was related or with whom he was or had been in
an intimate personal relationship, or
(b)
a member of the same household as himself,

held with a view to identifying the lessons to be learnt from the death.
25
(2)
The Secretary of State may in a particular case direct a specified person or body
within subsection (4) to establish, or to participate in, a domestic homicide
review.
(3)
It is the duty of any person or body within subsection (4) establishing or
participating in a domestic homicide review (whether or not held pursuant to
30
a direction under subsection (2)) to have regard to any guidance issued by the
Secretary of State as to the establishment and conduct of such reviews.
(4)
The persons and bodies within this subsection are—

chief officers of police for police areas in England and Wales;

local authorities;
35

local probation boards established under section 4 of the Criminal Justice
and Court Services Act 2000 (c. 43);

Health Authorities established under section 8 of the National Health
Service Act 1977 (c. 49);

Primary Care Trusts established under section 16A of that Act.
40
(5)
In subsection (4) “local authority” means—
(a)
in relation to England, the council of a district, county or London
borough, the Common Council of the City of London and the Council
of the Isles of Scilly;
(b)
in relation to Wales, the council of a county or county borough;
45

Domestic Violence, Crime and Victims Bill [HL]
Part 2 — Criminal procedure etc
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(6)
The Secretary of State may by order amend subsection (4) or (5).
Part 2
Criminal procedure etc
Assault and harassment
7
Common assault to be an arrestable offence
5
(1)
In Schedule 1A to the Police and Criminal Evidence Act 1984 (c. 60) (specific
offences which are arrestable offences), before paragraph 15 (but after the
heading “Criminal Justice Act 1988”) insert—
“14A
Common assault.”
(2)
In Article 26(2) of the Police and Criminal Evidence (Northern Ireland) Order
10
1989 (S.I. 1989/1341 (N.I. 12)) (specific offences which are arrestable offences),
after paragraph (k) insert—
“(l)
common assault.”
8
Restraining orders
(1)
In section 5 of the Protection from Harassment Act 1997 (c. 40) (power to make
15
restraining order where defendant convicted of offence under section 2 or 4 of
that Act), in subsection (1) omit “under section 2 or 4”.
(2)
After subsection (4) of that section insert—
“(4A)
Any person mentioned in the order is entitled to be heard on the
hearing of an application under subsection (4).”
20
(3)
After that section insert—
“5A
Restraining orders on acquittal
(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
25
from doing anything described in the order.
(2)
In proceedings under this section both the prosecution and the defence
may lead, as further evidence, any evidence that would be admissible
in proceedings for an injunction under section 3.
(3)
Subsections (3) to (6) of section 5 apply to an order under this section as
30
they apply to an order under that one.
(4)
Where the Court of Appeal allow an appeal against conviction they
may remit the case to the Crown Court to consider whether to proceed
under this section.
(5)
Where—
35
(a)
the Crown Court allows an appeal against conviction, or
(b)
a case is remitted to the Crown Court under subsection (4),

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.

Domestic Violence, Crime and Victims Bill [HL]
Part 2 — Criminal procedure etc
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(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
which made the order, and
(b)
the order had been made under section 5.”
5
Trial by jury of sample counts only
9
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 10 to 12, 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.
10
Procedure for applications under section 9
(1)
An application under section 9 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 9.

Domestic Violence, Crime and Victims Bill [HL]
Part 2 — Criminal procedure etc
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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 9 has been made.
(4)
The parties to a preparatory hearing at which an application under section 9 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 9.
(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
11
Effect of order under section 9(2)
(1)
The effect of an order under section 9(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 9(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
9(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 9(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 the trial of a count is conducted with a jury because of an order under
section 9(2) and the jury convicts the defendant of that count, time does not
begin to run under section 18(2) of the Criminal Appeal Act 1968 in relation to
45
an appeal against that conviction until the date on which the trial ends.
(6)
Nothing in this Part affects—