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| Domestic Violence, Crime and Victims Bill [HL] |
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These notes refer to the Domestic Violence, Crime and Victims Bill [HL] DOMESTIC VIOLENCE,CRIME AND VICTIMS BILL [HL] EXPLANATORY NOTESINTRODUCTION 1. These explanatory notes relate to the Domestic Violence, Crime and Victims Bill [HL] as introduced in the House of Lords on 1st December 2003. They have been prepared by the Home Office in order to assist the reader of the Bill and to help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. 2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. Where a clause or part of a clause does not seem to require any explanation or comment, none is given. SUMMARY AND BACKGROUND 3. In July 2002 the Government published a White Paper outlining its plans for the criminal justice system, from crime prevention through to the punishment and rehabilitation of offenders. Justice for All (Cm 5563) focused on reforms to court procedure and sentencing, to make trials faster and to deliver clear, consistent and appropriate sentencing. At the same time, it set out the Government's proposals to tackle domestic violence, including reform of the civil and criminal law. 4. In June 2003, the Government published a consultation paper, building on the Justice for All proposals. Safety and Justice: the Government's Proposals on Domestic Violence (Cm 5847) focused on improving the legal and other protection available to victims of domestic violence, particularly reforms to orders under the Family Law Act 1996 (non-molestation and occupation orders) and providing clarity for the police when called to domestic violence incidents. 5. The Bill is intended to introduce reform to the civil and criminal law in these areas by criminalising the breach of non-molestation orders under the Family Law Act 1996; by extending the availability of restraining orders under the Protection from Harassment Act 1997; and by making common assault an arrestable offence. 6. The provisions on familial homicide are based on the Law Commission proposals in their report published in September 2003 'Children: their non-accidental death or serious injury (criminal trials)' No 282, together with their earlier Consultative Report No 279 and the report by the National Society for the Protection of Children 'Which of you did it?', due to be published autumn 2003. These reports contain a detailed analysis of the problems encountered in the law at present. However, the new offence is designed to protect vulnerable adults as well as children and the approach taken to its formulation is somewhat different. 7. The multiple offending measures have been informed by the recommendations of the Law Commission Report 'The Effective Prosecution of Multiple Offending', Report Number 277, published in October 2002. 8. A public consultation paper to review the Victims' Charter - which invited comments on some of the ideas now in the proposed Bill - was published on 28th February 2001. 9. The White Paper, 'Justice for All', published in July 2002, previewed some of the proposed key strands (pp 48-49). This was followed by the policy leaflet 'A Better Deal for Victims and Witnesses', presented to the House Library on 21st November 2002, and the publication of the first national strategy for victims and witnesses on 22nd July 2003. TERRITORIAL EXTENT 10. The Bill generally applies to England and Wales. Clause 7(2) applies to Northern Ireland. Clauses 24 and 25 apply throughout the United Kingdom. THE BILL 11. The Bill is in 3 main parts. Part 1 - Domestic Violence etc 12. Clauses 1 to 3 amend the Family Law Act 1996. A breach of a non-molestation order will become a criminal offence. The definition of associated persons in the Act (which governs eligibility for the Act's orders) will be expanded to include same-sex cohabiting couples, and people in intimate personal relationships of significant duration who have never cohabited or been married. 13. Clauses 4 and 5 introduce a new offence of causing or allowing the death of a child or vulnerable adult and provide for procedural measures to support it. The offence will apply where a child or vulnerable person dies as a result of unlawful conduct; a member of the household caused the death; the death occurred in anticipated circumstances; and the defendant was or should have been aware that the victim was at risk but either caused the death or did not take all reasonable steps to prevent the death. It will not be necessary to show which member or members of the household caused the death and which failed to prevent the death. All members of the household (subject to certain restrictions relating to age and mental capacity) will be liable for the new offence if they meet the criteria. At present, where it cannot be shown which of the accused caused the death, they may all be acquitted of murder or manslaughter. The maximum penalty for the offence will be 14 years imprisonment. 14. The procedural measures are designed to operate alongside this new offence. The procedural measures will have effect where the new offence is charged alongside murder or manslaughter against one or more defendants. Where the prosecution establish a case to answer on the new offence the court will not consider the question of whether there is a case to answer on the charge of murder or manslaughter until after the conclusion of the defence case. They also make provision for inferences from the defendant's silence at trial to be drawn in respect of the murder and manslaughter charges. 15. Clause 6 sets out arrangements for the establishment and conduct of domestic homicide reviews, including the persons and bodies which must have regard to guidance issued by the Secretary of State. Part 2: Criminal Procedure etc 16. Clause 7 makes common assault an arrestable offence 17. Clause 8 extends the availability of restraining orders under the Protection from Harassment Act 1997 so that they may be made on conviction or acquittal for any offence, where the court considers it is necessary to do so to protect the victim from harassment. 18. Clauses 9-12 set out the circumstances in which part of a trial on indictment in the Crown Court may be heard by a judge sitting without a jury. These provisions are directed at certain cases where the offending conduct of the defendant is repeated so many times that there are too many individual offences to be accommodated in a single jury trial. A recent Court of Appeal decision (Kidd & ors [1998] 1 WLR 604) has precluded the practice of sentencing on the basis of specimen counts. In light of issues identified by this decision, these provisions allow for a two-stage trial procedure which will enable the Court to try the defendant on counts which properly represent the totality of his offending, and, upon conviction, to sentence him on that basis. Part 3 - Victims etc 19. Part 3 makes provision about victims and witnesses of crime. It obliges the Secretary of State to issue a code of practice as to the services to be provided to victims of criminal conduct and provides for the Parliamentary Commissioner for Administration to investigate complaints made by members of the public in relation to breaches of the code. The code will replace the non-statutory standards set out in the current Victims' Charter. Part 3 also creates a Commissioner for Victims and Witnesses and puts the existing Victims' Advisory Panel on a statutory footing. It allows for the disclosure of information for the purposes of compliance with the code and the exercise of the Commissioner's functions. It also permits the Secretary of State to pay grants to bodies which assist victims and witnesses, giving a statutory basis for existing financial arrangements. COMMENTARY ON CLAUSES PART 1: DOMESTIC VIOLENCE ETC Clause 1: Breach of non-molestation order to be a criminal offence 20. Part 4 of the Family Law Act provides personal protection to the applicant or relevant child from molestation by an associated person (a non-molestation order). The court can also make a non-molestation order if in any family proceedings to which the respondent is a party it considers that the order should be made for the benefit of any other party to the proceedings or any relevant child even though no application for an order has been made. 21. Parties to the proceeding may be "associated" by virtue of:
22. Until now, a breach of such an order has been punishable only as a civil contempt of court. Speedy enforcement depended on whether the court attached a power of arrest to the order. If no power of arrest was attached, the victim had to go to the civil court to get an arrest warrant. 23. Clause 1 inserts a new section 42A into the Family Law Act 1996 which makes breach of a non-molestation order a criminal offence. As the maximum penalty for the offence is 5 years imprisonment, the offence will be arrestable under section 24(1) of the Police and Criminal Evidence Act 1984. This enables the police always to arrest for breach of a non-molestation order, without the need for the courts to attach a power of arrest, or for the victim to apply to the civil court for an arrest warrant. Under section 42A(2), an individual would only be guilty of a criminal offence if he is aware of the existence of the order. 24. However, if the victim does not want to pursue criminal proceedings, the option still remains for them to apply for an arrest warrant for breach of a non-molestation order in the civil court. 25. Subsections (3) and (4) of the new section 42A provide that where an individual has been convicted of a breach of a non-molestation order, he cannot be punished subsequently for contempt, and vice versa. 26. A new sub-section 42(4A) is inserted by paragraph 3 of Schedule 4 which places a duty on the court to consider making a non-molestation order when it considers whether to make an occupation order under Part 4. Occupation orders are orders regulating the occupation of a dwelling-house and may provide for the exclusion of the respondent from the house and the vicinity of the house or prohibit, terminate or restrict the exercise of the respondent's occupation rights. Breach of an occupation order is not to be made a criminal offence as history of violence or molestation is not a prerequisite for the grant of an order. However the new section 42(4A) is designed to ensure that adequate protection is always in place for those persons who need it. Clause 2: "Cohabitants" in Part 4 of the Family Law Act 1996 to include same-sex couples 27. Same-sex couples may apply for non-molestation orders by virtue of living together in the same household, but not for occupation orders merely by being an associated person. They must also have been legally entitled to occupy the dwelling-house and the house must have been intended to be their home. "Legal entitlement" means to occupy the dwelling-house concerned by virtue of a beneficial estate or interest or contract or by virtue of any other enactment giving the right to remain. 28. This clause amends the definition of cohabitants to include same-sex cohabitants. This will enable same-sex cohabitants to apply for occupation orders under section 36 and section 38 of the Family Law Act 1996, even where they may not be legally entitled, to bring their rights into line with the rights of heterosexual cohabitants. It will also enable them to apply for a non-molestation order by virtue of being a cohabitant, rather than being part of the same household as the respondent. 29. Schedule 4 replaces references to "living together" as husband and wife in Part IV and Schedule 7 to the Act with the term - "cohabit" - to ensure that any reference in Part 4 and Schedule 7 to the Act to living together as husband and wife will encompass both heterosexual and same-sex cohabitants. Schedule 4 also amends the term "former cohabitant" to include former same-sex cohabitants. Clause 3: Extension of Part 4 of 1996 Act to non-cohabiting couples 30. This clause extends the availability of non-molestation orders to those in domestic relationships who have never cohabited or have never been married. This new category of associated person will also be able to apply for an occupation order under section 33 of the Act as long as the requirements of section 33(1) are met. As section 33 only applies to homes, in which the applicant and respondent have lived or intended to live, it is unlikely that this new category of associated person will be able to satisfy this requirement very often. 31. It extends the list of associated persons by incorporating a reference to those who have or have had an intimate personal relationship which is or was of significant duration. It will be for the court to decide on whether the relationship meets these criteria. This covers a long-standing relationship which may, or may not, be a sexual relationship, but which is an intimate and personal one. It does not include long-term platonic friends or one-night stands. Clause 4: Causing or allowing the death of a child or vulnerable adult: The Offence 32. Subsection (1) sets out the circumstances under which a person is guilty of an offence of causing or allowing the death of a child or a vulnerable adult. It limits the offence to where the victim has died of an unlawful act, so it will not apply where the death was an accident, or where for example a child may have suffered a cot death. The offence only applies to members of the household who had frequent contact with the victim, and could therefore be reasonably expected both to be aware of any risk to the victim, and to have a duty to protect him from harm. 33. The household member must have failed to take reasonable steps to protect the victim. What will constitute 'reasonable steps' will depend on the circumstances of the person and their relationship to the victim. 34. The victim must also have been at risk of serious physical harm. The risk is likely to be demonstrated by a history of violence towards the vulnerable person, or towards others in the household. The offence will not apply if the victim died of a blow when there was no previous history of abuse, nor any reason to suspect a risk. Where there is no reason to suspect the victim is at risk, other members of the household cannot reasonably be expected to have taken steps to prevent the abuse. They will therefore not be guilty of the new offence, even where it is clear that one of them is guilty of a homicide offence. 35. The effect of subsection (2) is that where, for example, there are two defendants and it is established that one must have caused the death and the other must have failed to take reasonable steps to prevent it, the prosecution does not have to prove which is which. 36. Subsection (3) provides that only those who are 16 or over may be guilty of the offence, unless they are the mother or father of the victim. Members of the household under 16 will not have a duty of care or be expected to take steps to prevent a victim coming to harm. In particular, a child under 16 will have no duty to prevent their parents from harming a sibling. The parents of a child will be expected to take reasonable steps to protect their child even if they themselves are under 16. 37. Subsection (4)(a) provides that a person who visits the household frequently and for long periods can be regarded as a member of the household for these purposes. This will apply whatever the formal relationship of the person to the victim. Subsection (4)(b) covers situations where the victim might have lived in different households at different times. But only the members of the household where the victim suffered fatal harm could be guilty of the offence. Clause 5: Evidence and procedure 38. Clause 5 provides special rules for cases where the new offence, under clause 4, is tried alongside a charge of murder or manslaughter. Subsection (1) provides that where that is the case and, in respect of the new offence, the court or jury is permitted to draw an adverse inference under section 35(3) of the Criminal Justice and Public Order Act 1994 from that person's failure to give evidence, then such an inference may also be drawn in relation to the charge of murder or manslaughter. The clause makes clear that the inference can be drawn even where there would not otherwise be a case to answer on that charge. This is subject to the safeguard in section 38(3) of the 1994 Act, which has the effect that a defendant may not be convicted solely or mainly on the basis of an inference from silence. 39. Subsection (2) provides that where one person in the proceedings is charged with the new offence and he or another defendant is also charged with murder or manslaughter in relation to the same death, then the question of whether there is a 'case to answer' on the charge of murder or manslaughter, shall not be considered until the close of the defence case. This means that in these cases the court will hear all the evidence that is to be presented in the case before deciding whether the charges can safely be left to the jury. 40. Subsection (4) of clause 5 makes clear that the new offence should be treated as an offence of homicide for the following enactments-
41. Treating the offence as a homicide for sections 24 and 25 of the Magistrates Courts Act 1980 and section 51 of the Crime and Disorder Act 1998 means that the offence will always be tried in the Crown Court, even where the defendant is a juvenile. Including the offence as a homicide for section 8 of the Powers of Criminal Courts (Sentencing) Act 2000 means that the offender can be sentenced in the Crown Court even if they are under 18. These provisions are justified by the seriousness of the offence. Clause 6: Establishment and conduct of reviews 42. This clause provides guidance on the establishment and conduct of domestic homicide reviews, so that statutory and other agencies can learn lessons from them. Under subsection (3), the relevant authorities (listed in subsection (4) as chief constables for England and Wales, local authorities, local probation boards, health authorities and Primary Care Trusts) have a duty to have regard to guidance issued by the Secretary of State, when either establishing or conducting such a review. 43. The guidance will encourage multi-agency reviews in relevant cases and will provide details as to leadership, format, timing and participants depending on the individual circumstances of the case. 44. The reviews are limited to deaths of those aged 16 years and above. Child deaths are already considered under Part 8 of the Serious Case Reviews ("Working Together to Safeguard Children") guidance. The guidance will cover deaths as a result of violence, abuse or neglect inflicted by someone to whom he was related, who was a member of the same household or with whom the victim had an intimate personal relationship. 45. In addition, subsection (2) gives the Secretary of State the reserve power to direct a review to be established in a particular case, specifying who must establish and/or participate in such a review. Subsection (5) enables the Secretary of State to change or add to the relevant authorities in subsection (4) by order subject to the negative resolution procedure. PART 2: CRIMINAL PROCEDURE ETC Clause 7: Making common assault an arrestable offence 46. This clause extends the list of arrestable offences by adding the offence of common assault to Schedule 1A to the Police and Criminal Evidence Act 1984. 47. The effect is to give the police the power to arrest an individual on suspicion of assault and/or battery without an arrest warrant. Clause 8: Restraining orders 48. This clause extends the circumstances in which a restraining order can be made under the Protection from Harassment Act 1997 following criminal proceedings. Subsection (1) extends the courts' power to make a restraining order on conviction for any offence, rather than only on conviction for offences under the 1997 Act. 49. Section 2 of the Protection from Harassment Act 1997 created a summary only offence of harassment; section 4 created an offence, triable either summarily or on indictment, that is committed where a person's course of conduct causes another reasonably to fear on at least two occasions that violence will be used against him. 50. Subsection (2) gives the victim the right to make representations to the court about the terms of the order. This in turn, along with Rules of Court, will ensure that victims are notified of any application to vary or discharge an order. 51. Subsection (3) introduces a new section - 5A - which provides for restraining orders on acquittal. Courts can consider making a restraining order when a person has been acquitted of an offence, where the court believes a restraining order is necessary to protect a person from harassment. 52. Section 5A(2) provides that when the court is considering making a restraining order after acquittal, the defence and the prosecution may bring any evidence before the court that would be admissible in civil proceedings under section 3 of the Protection from Harassment Act 1997. Section 3 of the Act sets out the procedure for obtaining a restraining order to prevent harassment in the civil courts. 53. Section 5A(3) applies section 5(3) to (6) of the 1997 Act to orders made under this section. Orders can be made for a specified period or until further order and the prosecution, defendant or anyone mentioned in the order can apply for it to be varied or discharged. It will be an offence to do anything prohibited by the order without reasonable excuse. The maximum penalty is 5 years imprisonment on trial on indictment. 54. Subsection (4) to (6) of the new section 5A deal with appeals. They provide rights of appeal against the making of an order under the new section, and allow for such an order to be made following a successful appeal against conviction. Clause 9: Application by prosecution for certain counts to be tried without a jury 55. This clause makes provision for the prosecution to apply for part of a trial on indictment in the Crown Court to proceed in the absence of a jury. A successful application would need to satisfy the Court of three conditions. 56. The first condition is that there are so many counts in the indictment that a trial by jury involving all of those counts is likely to be impracticable (subsection (3)). 57. The second condition (subsection (4)) is that the court considers that those counts which would be able to be tried with a jury can be regarded as samples of other counts in the indictment, which could accordingly be tried without a jury. For this purpose, the defendant in respect of each count must be the same person (subsection (9)). 58. The third condition is that it is in the interests of justice for such a trial to take place (subsection (5)). 59. In deciding whether to make the order, the judge will also be required to consider whether there is anything that could reasonably be done to facilitate a jury trial of all of the counts. However, in doing so the judge is not to regard as reasonable any measure which might 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. Clause 10: Procedure for applications under section 9 60. This clause prescribes the procedure for determining applications for part of a trial to proceed in the absence of a jury under clause 9. This provision is likely to be supplemented by rules of court, especially those provided for in clause 12. It makes clear that any such application will be determined at a preparatory hearing that has been ordered (whether particularly for that purpose or not) under the relevant provisions in the Criminal Justice Act 1987 and the Criminal Procedure and Investigations Act 1996. The parties to the preparatory hearing must also be given the opportunity to make representations with respect to the application. 61. The effect of subsection (5) is that an appeal will lie to the Court of Appeal for both prosecution and defendant against the determination made by the court at a preparatory hearing on any application for part of a trial to take place without jury under clause 9. |
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