Domestic Violence, Crime and Victims Act 2004 (c. 28)

(The document as of February, 2008)

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(b) the court has power to make a hospital order,

the court shall make a hospital order with a restriction order (whether or not it would have power to make a restriction order apart from this subsection).

(4) The functions of the court under this section shall be exercised by the judge advocate (or, where subsection (5) below applies, the judicial officer) sitting alone, and sections 56A(3) and 57 above shall not apply.

(5) Any function of the court under this section exercisable after an adjournment or an appeal shall be exercisable by a judicial officer if--

(a) the court ordering the adjournment, or (as the case may be) the Courts-Martial Appeal Court, so orders; or

(b) the Judge Advocate of Her Majesty's Fleet so directs.

(6) In this Act--

"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 Act;
"supervision order" means an order which requires the person in respect of whom it is made ("the supervised person") to be under the supervision of a person ("the supervising officer") for a period specified in the order of not more than two years.

63B Orders under the Mental Health Act

(1) In relation to the making of an order by virtue of subsection (2)(a) of section 63A above, section 37 (hospital orders etc) of the Mental Health Act 1983 ("the 1983 Act") shall have effect as if--

(a) the reference in subsection (1) to a person being convicted before the Crown Court included a reference to the case where section 63A above applies;

(b) the words after "punishable with imprisonment" and before "or is convicted" were omitted; and

" (4) Where an order is made under this section requiring a person to be admitted to a hospital ("a hospital order"), it shall be the duty of the managers of the hospital specified in the order to admit him in accordance with it. "

(2) In relation to a case where section 63A above applies but the court has not yet made one of the disposals mentioned in subsection (2) of that section--

(a) section 35 of the 1983 Act (remand to hospital for report on accused's mental condition) shall have effect with the omission of the words after paragraph (b) in subsection (3);

(b) section 36 of that Act (remand of accused person to hospital for treatment) shall have effect with the omission of the words "(other than an offence the sentence for which is fixed by law)" in subsection (2);

(c) references in sections 35 and 36 of that Act to an accused person shall be construed as including a person in whose case this subsection applies; and

(d) section 38 of that Act (interim hospital orders) shall have effect as if--

(i) the reference in subsection (1) to a person being convicted before the Crown Court included a reference to the case where section 63A above applies; and

(ii) the words "(other than an offence the sentence for which is fixed by law)" in that subsection were omitted.

(3) In relation to the making of any order under the 1983 Act by virtue of this Act, that Act shall apply--

(a) as if references to the Crown Court were references to a court-martial;

(b) as if references to an offender were references to a person in whose case section 63A above applies (references to an offence being construed accordingly); and

(4) The Secretary of State may by regulations make provision with respect to the admission to, detention in, and release from, hospital of any person in respect of whom an order is made under the 1983 Act by virtue of this Act.

Regulations under this subsection may in particular make provision for a person in respect of whom such an order has been made to be conveyed to, and detained in, a place of safety pending his admission to hospital.

(5) Where--

(a) a person is detained in pursuance of a hospital order which the court had power to make by virtue of section 63A(1)(a) above, and

(b) the court also made a restriction order, and that order has not ceased to have effect,

the Secretary of State, if satisfied after consultation with the responsible medical officer that the person can properly be tried, may either remit the person for trial before a court-martial or direct that he be tried before a civil court.

In this subsection "responsible medical officer" means the registered medical practitioner in charge of the person's treatment.

(6) The Secretary of State may by regulations make provision supplementing subsection (5) above, including in particular--

(a) provision for a person in whose case that subsection applies to be conveyed to a court or place of detention and to be detained in such a place;

(b) provision for the hospital order and the restriction order to cease to have effect at such time as may be prescribed.

63C Supervision orders

(1) The court shall not make an order under section 63A(2)(b) above unless it is satisfied--

(a) that, having regard to all the circumstances of the case, the making of a supervision order is the most suitable means of dealing with the accused;

(b) that the supervising officer intended to be specified in the order is willing to undertake the supervision; and

(c) that arrangements have been made for any treatment which (under subsection (2) below) is intended to be specified in the order.

(2) An order under section 63A(2)(b) above may, in accordance with regulations under subsection (3) below, require the supervised person to submit, during the whole of that period or such part of it as may be specified in the order, to treatment by or under the direction of a registered medical practitioner.

(3) The Secretary of State may--

(a) by order direct that the definition of "supervision order" in section 63A(6) above shall be amended by substituting, for the period for the time being specified there, such period as may be specified in the order under this subsection;

(b) by regulations make further provision in relation to supervision orders.

(4) Regulations under subsection (3) above may in particular make provision--

(a) as to the procedure to be followed by a court-martial making a supervision order;

(b) as the requirements which may be specified in such an order;

(d) for treatment to be provided at a place other than the place specified in the order in accordance with arrangements made by the medical practitioner by whom or under whose direction the supervised person is being treated;

(e) for the amendment and revocation of any supervision order.

63D Provisions supplementary to sections 62A to 63C

(1) In this section and sections 62A to 63C above--

"duly approved" means approved for the purposes of section 12 of the Mental Health Act 1983 by the Secretary of State as having special experience in the diagnosis and treatment of mental disorder (within the meaning of that Act);
"prescribed" means prescribed by regulations made by the Secretary of State.

(2) For the purposes of the provisions of sections 62A and 63 of this Act which permit a court to act on the written evidence of a registered medical practitioner or a registered medical practitioner who is duly approved, a report in writing purporting to be signed by a registered medical practitioner or a registered medical practitioner who is duly approved may, subject to subsection (3) below, be received in evidence without proof of the signature of the practitioner and without proof that he has the requisite qualifications or is duly approved; but the court may require the signatory of any such report to be called to give oral evidence.

(3) Where, in pursuance of a direction of the court, any such report is tendered in evidence otherwise than by or on behalf of the accused, then--

(a) if the accused is represented by counsel or a solicitor, a copy of the report shall be given to his counsel or solicitor;

(b) if the accused is not so represented, the substance of the report shall be disclosed to him; and

(c) the accused may require the signatory of the report to be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by the accused or on his behalf.

(4) The power of the Secretary of State to make regulations under sections 63A to 63C above, and orders under section 63C(3) above, shall be exercisable by statutory instrument which shall be subject to annulment in pursuance of a resolution of either House of Parliament. "

4 In the proviso to section 56(3) of that Act (court-martial not to be adjourned for more than six days), after "except with the consent of the accused and the prosecuting authority" insert ", or for the purpose of exercising powers under section 63A of this Act,".

5 In section 135(1) of that Act (general provisions as to interpretation) insert at the appropriate places--

" "hospital order" has the meaning assigned to it by section 63A(6) of this Act; " ;

" "restriction order" has the meaning assigned to it by section 63A(6) of this Act; " ;

" "supervision order" has the meaning assigned to it by section 63A(6) of this Act; " .

Courts-Martial (Appeals) Act 1968 (c. 20)

6 The Courts-Martial (Appeals) Act 1968 is amended as follows.

7 For section 16 substitute--

" 16 " Substitution of finding of insanity or findings of unfitness to stand trial etc.

(1) This section applies where, on an appeal against conviction, the Appeal Court, on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of opinion--

(a) that the proper finding would have been one of not guilty by reason of insanity; or

(b) that the case is not one where there should have been a finding of not guilty, but that there should have been findings that the accused was unfit to stand trial and that he did the act or made the omission charged against him.

(2) The Appeal Court shall make in respect of the appellant--

(a) a hospital order (with or without a restriction order);

(b) a supervision order; or

(3) Where--

(a) the offence to which the appeal relates is an offence the sentence for which is fixed by law, and

(b) the Appeal Court have power to make a hospital order,

the Appeal Court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).

(4) The provisions of, or made under, the sections specified below shall apply (with any necessary modifications) in relation to the Appeal Court as they apply in relation to a court-martial.

The sections are--

(d) where the relevant Service Act is the Air Force Act, sections 116B to 116D of that Act;

(e) where the relevant Service Act is the Naval Discipline Act, sections 63B to 63D of that Act.

(5) Where the Appeal Court make an interim hospital order by virtue of this section--

(a) the power of renewing or terminating it and of dealing with the appellant on its termination shall be exercisable by a judicial officer and not by the Appeal Court; and

(b) section 38(7) of the Mental Health Act 1983 (absconding offenders) shall have effect as if the reference to the court that made the order were a reference to a judicial officer.

(6) Where the Appeal Court make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable by a judicial officer and not by the Appeal Court. "

8 In section 21 (appeal against finding of not guilty by reason of insanity), in subsection (1), after "except" insert "section 8(2) and".

9 In section 22 (consequences where appeal under section 21 allowed), at the beginning of subsection (4) insert "Subject to section 23 below,".

10 For section 23 substitute--

" 23 " Substitution of findings of unfitness to stand trial etc.

(1) This section applies where, on an appeal under section 21 of this Act, the Appeal Court, on the written or oral evidence of two or more registered medical practitioners at least one of whom is duly approved, are of opinion that--

(a) the case is not one where there should have been a finding of not guilty; but

(b) there should have been findings that the accused was unfit to stand trial and that he did the act or made the omission charged against him.

(2) The Appeal Court shall make in respect of the appellant--

(a) a hospital order (with or without a restriction order);

(b) a supervision order; or

(3) Where--

(a) the offence to which the appeal relates is an offence the sentence for which is fixed by law, and

(b) the Appeal Court have power to make a hospital order,

the Appeal Court shall make a hospital order with a restriction order (whether or not they would have power to make a restriction order apart from this subsection).

(4) The provisions of, or made under, the sections specified below shall apply (with any necessary modifications) in relation to the Appeal Court as they apply in relation to a court-martial.

The sections are--

(d) where the relevant Service Act is the Air Force Act, sections 116B to 116D of that Act;

(e) where the relevant Service Act is the Naval Discipline Act, sections 63B to 63D of that Act.

(5) Where the Appeal Court make an interim hospital order by virtue of this section--

(a) the power of renewing or terminating it and of dealing with the appellant on its termination shall be exercisable by a judicial officer and not by the Appeal Court; and

(b) section 38(7) of the Mental Health Act 1983 (absconding offenders) shall have effect as if the reference to the court that made the order were a reference to a judicial officer.

(6) Where the Appeal Court make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable by a judicial officer and not by the Appeal Court. "

11 (1) Section 24 (appeal against finding of unfitness to stand trial) is amended as follows.

(2) In subsection (1)--

(a) for "his trial" substitute "trial and to have done the act or made the omission charged against him";

(b) for "the finding" substitute "either or both of those findings".

(3) In subsection (2), after "except" insert "section 8(2) and".

12 For section 25 substitute--

" 25 " Disposal of appeal under s. 24

(1) This section applies to appeals under section 24 of this Act.

(2) Where the Appeal Court allow an appeal against a finding that the appellant is unfit to stand trial--

(a) the appellant may be tried accordingly for the offence with which he was charged; and

(b) the Court may make such orders as appear to them necessary or expedient pending any such trial for the custody, release or continued detention of the appellant.

(3) Where, otherwise than in a case falling within subsection (2) above, the Appeal Court allow an appeal against a finding that the appellant did the act or made the omission charged against him, the Court shall, in addition to quashing the finding, direct a finding of not guilty to be recorded (but not a finding of not guilty by reason of insanity). "

13 After that section insert--

" Appeal against order made in cases of insanity or unfitness to stand trial

25A Right of appeal against hospital order etc.

(1) A person in whose case a court-martial--

(a) makes a hospital order or interim hospital order by virtue of the relevant Service Act, or

(b) makes a supervision order under the relevant Service Act,

may appeal to the Appeal Court against the order.

(2) An appeal under this section lies only with the leave of the Appeal Court.

25B Disposal of appeal under s. 25A

(1) If on an appeal under section 25A of this Act the Appeal Court consider that the appellant should be dealt with differently from the way in which the court below dealt with him--

(a) they may quash any order which is the subject of the appeal; and

(b) they may make such order, whether by substitution for the original order or by variation of or addition to it, as they think appropriate for the case and as the court below had power to make.

(2) The fact that an appeal is pending against an interim hospital order under the Mental Health Act 1983 shall not affect the power of the court below to renew or terminate the order or deal with the appellant on its termination.

(3) Where the Appeal Court make an interim hospital order by virtue of this section--

(a) the power of renewing or terminating it and of dealing with the appellant on its termination shall be exercisable by a judicial officer and not by the Appeal Court; and

(b) section 38(7) of the said Act of 1983 (absconding offenders) shall have effect as if the reference to the court that made the order were a reference to a judicial officer.

(4) The fact that an appeal is pending against a supervision order under the relevant Service Act shall not affect any power conferred on any other court to revoke or amend the order.

(5) Where the Appeal Court make a supervision order by virtue of this section, any power of revoking or amending it shall be exercisable by a judicial officer and not by the Appeal Court. "

14 (1) Section 57 (interpretation) is amended as follows.

(2) In subsection (1) insert at the relevant places--

" "duly approved" means approved for the purposes of section 12 of the Mental Health Act 1983 by the Secretary of State as having special experience in the diagnosis and treatment of mental disorder (within the meaning of that Act); " ;

" "hospital order" has the meaning given in section 37 of the Mental Health Act 1983; " ;

" "interim hospital order" has the meaning given in section 38 of that Act; " ;

" "judicial officer" has the same meaning as in the relevant Service Act; " ;

" "restriction order" has the meaning given to it by section 41 of the Mental Health Act 1983; " ;

" "supervision order" means an order which requires the person in respect of whom it is made to be under the supervision of another person for a period specified in the order of not more than two years. "

(3) After subsection (2) insert--

" (2A) For the purposes of the provisions of sections 16 and 23 of this Act which permit the Appeal Court to act on the written evidence of a registered medical practitioner or a registered medical practitioner who is duly approved, a report in writing purporting to be signed by a registered medical practitioner or a registered medical practitioner who is duly approved may, subject to subsection (2B) below, be received in evidence without proof of the signature of the practitioner and without proof that he has the requisite qualifications or is duly approved; but the Appeal Court may require the signatory of any such report to be called to give oral evidence.

(2B) Where, in pursuance of a direction of the Appeal Court, any such report is tendered in evidence otherwise than by or on behalf of the appellant, then--

(a) if the appellant is represented by counsel or a solicitor, a copy of the report shall be given to his counsel or solicitor;

(b) if the appellant is not so represented, the substance of the report shall be disclosed to him; and

(c) the appellant may require the signatory of the report to be called to give oral evidence, and evidence to rebut the evidence contained in the report may be called by the appellant or on his behalf. "

15 (1) Schedule 3 (modifications in relation to prisoners of war) is amended as follows.

(2) In paragraph 3--

(a) in paragraph (a), for "or 15" substitute ", 14A, 15 or 25A";

(b) omit paragraph (b).

(3) After paragraph 3 insert--

" 3A In relation to a protected prisoner of war, sections 16 and 23 of this Act shall each have effect as if the following subsection were substituted for subsection (4)--

" (4) The provisions of a Royal Warrant shall apply (with any necessary modifications) in relation to the Appeal Court as they apply in relation to a court-martial. " "

Section 27

SCHEDULE 4 Powers of authorised officers executing warrants

The following is the Schedule inserted after Schedule 4 to the Magistrates' Courts Act 1980 (c. 43)--

Section 125BA

" SCHEDULE 4A Powers of authorised officers executing warrants

Meaning of "authorised officer" etc

1 In this Schedule--

"authorised officer", in relation to a warrant, means a person who is entitled to execute the warrant by virtue of--
(a)
section 125A of this Act (civilian enforcement officers); or
(b)
section 125B of this Act (approved enforcement agencies);
"premises" includes any place and, in particular, includes--
(a)
any vehicle, vessel, aircraft or hovercraft;
(b)
any offshore installation within the meaning of the Mineral Workings (Offshore Installations) Act 1971; and
(c)
any tent or movable structure.

Entry to execute warrant of arrest etc

2 (1) An authorised officer may enter and search any premises for the purpose of executing a warrant of arrest, commitment or detention issued in proceedings for or in connection with any criminal offence.

(2) The power may be exercised--

(a) only to the extent that it is reasonably required for that purpose; and

(b) only if the officer has reasonable grounds for believing that the person whom he is seeking is on the premises.

(3) In relation to premises consisting of two or more separate dwellings, the power is limited to entering and searching--

(a) any parts of the premises which the occupiers of any dwelling comprised in the premises use in common with the occupiers of any other such dwelling; and

(b) any such dwelling in which the officer has reasonable grounds for believing that the person whom he is seeking may be.

Entry to levy distress

3 (1) An authorised officer may enter and search any premises for the purpose of executing a warrant of distress issued under section 76 of this Act for default in paying a sum adjudged to be paid by a conviction.

(2) The power may be exercised only to the extent that it is reasonably required for that purpose.

Searching arrested persons

4 (1) This paragraph applies where a person is arrested in pursuance of a warrant of arrest, commitment or detention issued in proceedings for or in connection with any criminal offence.

(2) An authorised officer may search the arrested person, if he has reasonable grounds for believing that the arrested person may present a danger to himself or others.

(3) An authorised officer may also search the arrested person for anything which he might use to assist him to escape from lawful custody.

(4) The power conferred by sub-paragraph (3) above may be exercised--

(a) only if the officer has reasonable grounds for believing that the arrested person may have concealed on him anything of a kind mentioned in that sub-paragraph; and

(b) only to the extent that it is reasonably required for the purpose of discovering any such thing.

(5) The powers conferred by this paragraph to search a person are not to be read as authorising the officer to require a person to remove any of his clothing in public other than an outer coat, a jacket or gloves; but they do authorise the search of a person's mouth.

(6) An officer searching a person under sub-paragraph (2) above may seize and retain anything he finds, if the officer has reasonable grounds for believing that the person searched might use it to cause physical injury to himself or to any other person.

(7) An officer searching a person under sub-paragraph (3) above may seize and retain anything he finds, if he has reasonable grounds for believing that the person might use it to assist him to escape from lawful custody.

Use of force

5 An authorised officer may use reasonable force, if necessary, in the exercise of a power conferred on him by this Schedule. "

Section 29

SCHEDULE 5 Procedure on breach of community penalty etc

Interpretation

1 In this Schedule--

"the Sentencing Act" means the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6);
"the 2003 Act" means the Criminal Justice Act 2003 (c. 44).

Detention and training orders

2 (1) Section 104 of the Sentencing Act (breach of supervision requirements of detention and training order) is amended as follows.

(2) In subsection (1) (issue of summons or warrant by justice of the peace)--

(a) omit the words "acting for a relevant petty sessions area";

(b) in paragraph (a), omit the words "before a youth court acting for the area";

(3) For subsection (2) substitute--

" (2) Any summons or warrant issued under this section shall direct the offender to appear or be brought--

(a) before a youth court acting for the petty sessions area in which the offender resides; or

(b) if it is not known where the offender resides, before a youth court acting for same petty sessions area as the justice who issued the summons or warrant. "

Suspended sentence supervision orders

3 (1) Section 123 of the Sentencing Act (breach of requirement of suspended sentence supervision order) is amended as follows.

(2) In subsection (1) (issue of summons or warrant by justice of the peace) omit the words "acting for the petty sessions area for the time being specified in the order".

(3) For subsection (2) substitute--

" (2) Any summons or warrant issued under this section shall direct the offender to appear or be brought--

(a) before a magistrates' court for the petty sessions area in which the offender resides; or

(b) if it is not known where the offender resides, before a magistrates' court acting for the petty sessions area for the time being specified in the suspended sentence supervision order. "

(4) After subsection (4) insert--

" (5) Where a magistrates' court dealing with an offender under this section would not otherwise have the power to amend the suspended sentence supervision order under section 124(3) below (amendment by reason of change of residence), that provision has effect as if the reference to a magistrates' court acting for the petty sessions area for the time being specified in the suspended sentence supervision order were a reference to the court dealing with the offender. "

Community orders under the Sentencing Act

4 (1) Schedule 3 to the Sentencing Act (breach, revocation and amendment of certain community orders), as it has effect on the day on which this Act is passed, is amended as follows.

(2) In paragraph 3(1) (issue of summons or warrant by justice of the peace) omit the words "acting for the petty sessions area concerned".

(3) In paragraph 3(2) (court before which offender to appear or be brought), for paragraph (c) substitute--

" (c) in the case of a relevant order which is not an order to which paragraph (a) or (b) applies, before a magistrates' court acting for the petty sessions area in which the offender resides or, if it is not known where he resides, before a magistrates' court acting for the petty sessions area concerned. "

(4) In paragraph 4 (powers of magistrates' court to deal with breach), after sub-paragraph (3) insert--

" (3A) Where a magistrates' court dealing with an offender under sub-paragraph (1)(a), (b) or (c) above would not otherwise have the power to amend the relevant order under paragraph 18 below (amendment by reason of change of residence), that paragraph has effect as if the reference to a magistrates' court acting for the petty sessions area concerned were a reference to the court dealing with the offender. "

Curfew orders and exclusion orders

5 (1) Schedule 3 to the Sentencing Act (breach, revocation and amendment of curfew orders and exclusion orders), as substituted by paragraph 125 of Schedule 32 to the 2003 Act, is amended as follows.

(2) In paragraph 3(1) (issue of summons or warrant by justice of the peace) omit the words "acting for the petty sessions area concerned".

(3) In paragraph 3(2) (court before which offender to appear or be brought), for paragraph (b) substitute--

" (b) in the case of a relevant order which is not an order to which paragraph (a) above applies, before a magistrates' court acting for the petty sessions area in which the offender resides or, if it is not known where he resides, before a magistrates' court acting for the petty sessions area concerned. "

(4) In paragraph 4 (powers of magistrates' court to deal with breach), after sub-paragraph (4) insert--

" (4A) Where a magistrates' court dealing with an offender under sub-paragraph (2)(a) or (b) above would not otherwise have the power to amend the relevant order under paragraph 15 below (amendment by reason of change of residence), that paragraph has effect as if the reference to a magistrates' court acting for the petty sessions area concerned were a reference to the court dealing with the offender. "

Attendance centre orders

6 (1) Schedule 5 to the Sentencing Act (breach, revocation and amendment of attendance centre orders) is amended as follows.

(2) In paragraph 1(1) (issue of summons or warrant by justice of the peace), omit the words--

(a) "acting for a relevant petty sessions area";

(b) "before a magistrates' court acting for the area";

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