| Domestic Violence, - continued | House of Lords |
| back to previous text | |
|
Clause 11: Effect of order under section 9(2) 62. These provisions ensure that, where a court orders part of a trial to be conducted without a jury under clause 9(2), the trial will proceed in the usual way, except that the functions which would otherwise have been performed by a jury can be fully performed by the judge sitting alone, with suitable allowance for the obvious requirements of the change of context. 63. Where part of a trial is conducted without a jury, and a defendant is convicted, subsection (4)(a) requires the court to give its reasons for the conviction. 64. Subsection (5) provides that the time limits governing applications for leave to appeal to the Court of Appeal against conviction in cases where part of the trial is conducted without a jury will begin to run from the end of the trial, and not from the end of the part of the trial which is tried with a jury. 65. Subsection (6) disapplies these provisions in respect of hearings to determine the question of fitness to plead and related hearings under sections 4 and 4A of the Criminal Procedure (Insanity) Act 1964. Clause 12: Rules of court 66. This clause makes clear that rules of court may be made governing the procedure to be followed, and the time limits which will apply, in respect of applications under clause 9. PART 3: VICTIMS ETC Clause 13: Codes of practice for victims 67. Clause 13 places a requirement on the Secretary of State in consultation (under clause 14) with the Attorney General and the Secretary of State for Constitutional Affairs (the Cabinet Ministers who share responsibility for the criminal justice system) to issue a Code of Practice in respect of the services provided to victims of crime by persons who have functions relating to victims or the criminal justice system as a whole. 68. Subsections (2)- (4) allow the code to:
69. Subsection (5) provides that the code may not require anything to be done by a person acting in a judicial capacity or by a member of the Crown Prosecution Service when exercising a discretion. 70. Subsection (6) provides that a person can be a victim of criminal conduct for the purposes of this clause, irrespective of whether or not an offender is charged or convicted. This ensures that the provisions of the code can be broad enough to require the provision of services to victims at all stages of the criminal justice system and to victims of offences in respect of which no criminal proceedings are eventually brought or where criminal proceedings result in a not-guilty verdict. Clause 14: Procedure 71. Clause 14 explains the procedure for drafting and issuing the code of practice. When the final version of the code has been laid before Parliament, it is brought into operation by order. By virtue of clause 29(3), the order is to be subject to the negative resolution procedure. Clause 15: Effect of non-compliance 72. Clause 15 provides that failure to comply with the code does not, in itself, give rise to any liability to legal proceedings. Clause 16: Investigations by the Parliamentary Commissioner 73. Clause 16 and Schedule 1 amend the Parliamentary Commissioner Act 1967. The amendments extend the jurisdiction of the Parliamentary Commissioner for Administration so that he can investigate and report on:
74. Complaints will have to be made to the Parliamentary Commissioner through a Member of Parliament, in the same way as complaints of maladministration within the Parliamentary Commissioner's existing remit. The Parliamentary Commissioner will have the same powers to obtain evidence and examine witnesses as he has in relation to complaints of maladministration. The provisions as to secrecy of information will also apply in the same way as to complaints of maladministration. 75. Paragraph 2(4) of Schedule 1 provides that the matters excluded from the Parliamentary Commissioner's remit are slightly different for complaints of breaches of the code or section 69 of the Criminal Justice and Court Services Act 2000 than they are for complaints of maladminstration under the 1967 Act. Matters relating to criminal investigations and proceedings are excluded from the Parliamentary Commissioner's remit in respect of complaints of maladministration under the 1967 Act but such an exclusion would make the exercise of his functions in relation to breaches of the code and section 69 of the 2000 Act ineffective. Therefore, this exclusion does not apply in respect of complaints for breaches of the code or of section 69 of the 2000 Act. Clause 17: Commissioner for Victims and Witnesses 76. Clause 17 provides for a Commissioner for Victims and Witnesses to be appointed by the Secretary of State, in consultation with the Attorney General and the Secretary of State for Constitutional Affairs. The effect of providing that the Commissioner is a corporation sole (subsection (3)) is that the office of the Commissioner has legal personality and that the Commissioner (in his capacity as office-holder) can hold property, bring legal proceedings and employ staff. Sub-sections (4) and (5) provide that the Commissioner is not to be a Crown servant, which would be inappropriate to his independent role. 77. Subsection (6) introduces Schedule 2, which makes detailed provision about the Commissioner. Paragraph 1 provides for the Secretary of State to appoint a Deputy Commissioner who will carry on the Commissioner's functions if he is unable to do so. Paragraphs 2, 5 and 6 concern the terms of appointment of the Commissioner and Deputy Commissioner and paragraph 10 provides that they will be disqualified from sitting in Parliament or the Northern Ireland Assembly (office holders are usually disqualified from membership of the Scottish Parliament and National Assembly by order made by the relevant authority). Paragraphs 3 and 4 allow the Commissioner to appoint his own staff and to authorise them to carry out his functions. Paragraphs 8 and 9 provide for the Commissioner to prepare an annual plan, which will be subject to the approval of the Secretary of State, and to prepare an annual report which he must send to the Secretary of State, who will be required to lay the report before Parliament and publish it. Clause 18: General functions of the Commissioner 78. Clause 18 outlines the functions of the Commissioner. Under subsection (1), the Commissioner's primary functions are to promote the interests of victims and witnesses, take steps to encourage good practice in their treatment and keep the code issued under clause 13 under review. Subsection (2) provides for various ways in which he can carry out these functions, including making a report to the Secretary of State, commissioning research and making recommendations to an authority within his remit (as to which see clause 22). 79. Subsection (3) requires that where the Commissioner makes a report to the Secretary of State under subsection (2), the Secretary of State must send the report to the Attorney General and the Secretary of State for Constitutional Affairs, lay the report before Parliament and arrange for its publication. Clause 19: Advice 80. Clause 19 obliges the Commissioner to provide advice on issues relating to victims and witnesses when requested to do so by any Government Minister. 81. The authorities within the Commissioner's remit may ask the Commissioner to give specific advice in connection with the information they provide, through whatever medium, to victims and witnesses. Clause 20: Restrictions on exercise of functions 82. Clause 20 excludes the Commissioner from exercising his functions on behalf of individual victims or witnesses. He cannot, for example, ask the police or Crown Prosecution Service to bring or reconsider a particular charge against an individual offender, or ask for the courts to impose a particular sentence. On the other hand, the Commissioner will not be excluded from commenting on charging or sentencing policy, or any other wider policy issue relating to victims and witnesses. Clause 21: Victims and Witnesses 83. Clause 21 provides definitions of victim and witness, for the purpose of clauses 17 to 20 (which outline the Commissioner's functions). These definitions are wide enough to include: victims of offences in respect of which no offence was reported to the police or no suspect was charged or convicted (subsection (3)); and witnesses who are not actually called to give evidence (subsection (4)). The effect is that the Commissioner is not excluded from considering the position of those victims who, for whatever reason, choose not to report crime, or those witnesses who do not come forward to make statements or give evidence. 84. Under subsections (4) and (6), the definition of witness does not include witnesses who are or would be defendants in criminal proceedings. Clause 22: Authorities within the Commissioner's remit 85. Clause 22 introduces Schedule 3 which lists the authorities which fall within the Commissioner's remit. The list includes authorities which might have a more general impact on victims and witnesses, not just authorities with an interest in the criminal justice system. Subsection (2) provides the Secretary of State with the power to amend this list by order, in consultation with the Attorney General and the Secretary of State for Constitutional Affairs. By virtue of clause 29(4), this power is subject to the affirmative resolution procedure. Clause 23: Disclosure of information 86. Clause 23 enables information to be disclosed to those bound by the code issued under clause 13, local probation boards, the Commissioner and authorities within his remit for the purposes of: compliance with the code; compliance with the duty of local probation boards to provide information to victims under section 69 of the Criminal Justice and Court Services Act 2000; and the carrying out of the Commissioner's functions. 87. Under subsections (4) to (6), the Secretary of State may, in consultation with the Attorney General and the Secretary of State for Constitutional Affairs, amend the clause by order so as to permit disclosure of information to a wider range of people or for a wider range of purposes. However, the persons to whom information is disclosed must exercise functions of a public nature and the purpose must be connected with the assistance of victims, witnesses and others affected by offences. By virtue of clause 29(4), this power is subject to the affirmative resolution procedure. 88. Under subsections (7) and (8), the permission to disclose under this clause overrides any other restriction on the disclosure of information except for the Data Protection Act 1998. It is also implicit that the provisions of the Human Rights Act 1998 would need to be taken into account before any disclosure is made under this clause. Clause 24: Victims' Advisory Panel 89. Clause 24 requires the Secretary of State to appoint a Victims' Advisory Panel which he can consult on matters relating to victims and witnesses of crime. The Panel will be required to publish an annual report if the Secretary of State has consulted it during a particular year. The Secretary of State must consult the Attorney General and the Secretary of State for Constitutional Affairs before appointing or removing a member of the Panel. 90. The Home Secretary announced his intention to set up a Victims' Advisory Panel in March 2002, as stated in paragraph 2.45 (page 48) of the July 2002 White Paper "Justice For All". A non-statutory advisory non-departmental public body known as the Victims' Advisory Panel was duly recruited and met for the first time on 3rd March 2003. 91. The membership of the current Panel comprises ten voluntary lay members, who have direct experience of issues relating to victims, 3 co-opted members representing wider victims' interests, representatives of voluntary organisations to which the Government provides core funding to provide direct services to victims and witnesses, and senior officials from criminal justice agencies. It is chaired by the Minister for Criminal Justice, and is also attended by a minister from the Department for Constitutional Affairs, and the Solicitor General. 92. By subsection (7) the non-statutory Victims' Advisory Panel is to be treated as having been established in accordance with this clause. Clause 25: Grants for assisting victims, witnesses etc 93. Clause 25 will give the Secretary of State power to give grants to such persons or organisations as he considers appropriate in connection with measures intended to provide personal support to victims of crime, witnesses of crime, and others affected by crime. The clause allows the Secretary of State to attach conditions to the giving of the grant. 94. The Home Office currently gives annual grants to several voluntary organisations which help victims and witnesses. This clause will regularise the Home Office position in relation to current and future core funding programmes for victims and witnesses, and is consistent with Treasury best practice that there should be specific statutory authority for regular government grants to voluntary sector bodies. PART 4: SUPPLEMENTARY Clause 29: Orders 95. Clause 29 provides that subordinate legislation is to be made by statutory instrument and makes provision as to the procedure which should apply to particular powers under the Bill. It allows subordinate legislation to make different provision for different purposes and to include supplementary, incidental, saving or transitional provision. Clause 30: Extent 96. The Bill applies to England and Wales only except for clause 7(2) which applies to Northern Ireland; the amendments in Schedule 1 and 2 which have the same extent as the provisions they amend and clauses 24 and 25 apply throughout the United Kingdom. Schedule 4 97. Schedule 4 makes minor and consequential amendments to the Family Law Act 1996, the Protection from Harassment Act 1997, the Crime and Disorder Act 1998 and the Criminal Justice Act 2003. FINANCIAL EFFECTS AND EFFECTS ON PUBLIC SERVICE MANPOWER 98. Total costs are estimated to be £40m, all of which would be an ongoing, annual cost. The measures in the Bill are not expected to require a significant increase in public service manpower. All measures will occasion only a small (in relative terms) increase in work for the Police, CPS and the courts, and in the case of the victims' measures the Parliamentary Ombudsman's Office. SUMMARY OF THE REGULATORY APPRAISAL 99. A full regulatory impact assessment is published with the Bill. There are no proposals that have a major impact on business. EUROPEAN CONVENTION ON HUMAN RIGHTS 100. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement before the Second Reading about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Minister of State at the Home Office, Baroness Scotland of Asthal, has made the following statement:
|
|
| © Parliamentary copyright 2003 | Prepared: 2 December 2003 |