Criminal Law Legislation Update
| DOI | 10.1350/jcla.69.3.192.64778 |
| Published date | 01 June 2005 |
| Date | 01 June 2005 |
| Subject Matter | Article |
Legislation Update*
Sally Ireland†
Domestic Violence, Crime and Victims Act 2004
This update will deal with the remainder of Part 2 of the Domestic
Violence, Crime and Victims Act 2004, and with Parts 3 and 4 of the
Act.
● Trial by jury of sample counts only
Section 17 of the Act allows the prosecution in a Crown Court trial to
apply to the judge for an order that some of the counts in the indictment
may be tried without a jury. The judge must be satisfied that the number
of counts mean that trial on all would be impracticable, that each count
or group of counts to be tried by a jury could be regarded as sample
counts of the other counts, and that the order would be in the interests
of justice.
Unlike s. 43 of the Criminal Justice Act 2003, this provision does not
require a parliamentary resolution to be brought into force. The judge
must have regard to any steps which might reasonably be taken to
facilitate trial by jury before making the order, although any steps which
might result in a lesser sentence (presumably, quashing certain counts)
are excluded for these purposes. The application will take place at a
preparatory hearing and will include representations from the parties.
There is a right of appeal to the Crown Court against the determination.
If a defendant is convicted on a trial without jury the court must give a
judgment stating the reasons for the conviction.
Bearing in mind the case management powers in Part 3 of the new
criminal procedure rules, it is to be hoped that the invocation of this
section can be avoided in the majority of cases.
● Determination of fitness to plead
The jury is removed from another aspect of criminal procedure in s. 22,
which comes into force in England and Wales on 31 March 2005. The
Criminal Procedure (Insanity) Act 1964 is amended so as to provide that
when the question arises as to whether the accused is under a disability,
it shall be determined by the court without a jury. Evidence from two or
more registered medical practitioners, at least one of whom is duly
approved, is still required. The question of whether an accused found to
be under a disability did the act or omission charged against him is still
to be determined by a jury.
Section 24 of the 2004 Act replaces s. 5 of the 1964 Act, providing for
disposals for persons found to be under a disability and to have done the
* As at 20 March 2005.
† Criminal Justice Policy Officer, JUSTICE.
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Criminal Law Legislation Update
act or made the omission charged. The main changes are that instead of
making an order for admission to a hospital under Sched. 1 to the
Criminal Procedure (Insanity and Unfitness to Plead) Act 1991,
the court may now make a hospital order of the kind provided for under
s. 37 of the Mental Health Act 1983, with or without a restriction order
(as defined in s. 41 of that Act). Where the sentence for an...
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