Home Office circular 010 / 2009 Part 7 of the Criminal Justice and Immigration Act 2008 Broad subject: Crime and Disorder Issue date:…
Home Office circular 010 / 2009
Part 7 of the Criminal Justice and Immigration Act 2008
- Broad subject: Crime and Disorder
- Issue date: Mon Jul 27 15:41:43 BST 2009
Crime and Policing Group (CPG) - Crime Directorate, Violent Crime Unit (VCU)
No Linked Circulars
- Sub category: Violent crime
- Implementation date: Mon Jul 27 15:41:43 BST 2009
- For more info contact:
Claire Gipson - 020 7035 1833
On 3rd August 2009, Part 7 of the Criminal Justice and Immigration Act 2008 is to be implemented, thereby bringing into force the provisions relating to the Violent Offender Order (VOO). In this circular, references to sections are references to sections of the 2008 Act. The VOO is a civil order. The VOO is only available on application by a chief officer of police by complaint to a magistrates’ court (Section 100). The offender in respect of whom the application is made must be resident in the chief officer’s police area or be believed by the chief officer to be in or intending to come to his area. It must also appear to the chief officer that certain conditions (described in Section 100(2)) are met.
The conditions in Section 100(2) are that the offender qualifies by reason of his being aged 18 or over and falling within Section 99(2) or (4) and that, since the appropriate date (as described in Section 100(5)), has acted in such a way as to give reasonable cause to believe that it is necessary for a VOO to be made in his respect.
The application may be made to any magistrates’ court whose commission area includes any part of the applicant’s police area or any place where it is alleged that the activity of the offender mentioned in paragraph 2 herein is alleged to have taken place.
Section 99(2) states which offenders (aged 18 or over) may be subject to a VOO. Firstly, it is someone previously convicted of a specified offence and made subject to a custodial sentence of at least 12 months or a hospital order. Secondly, it is someone previously found not guilty by reason of insanity of a specified offence and made subject to a hospital order or a supervision order. Thirdly, it is someone previously found to be under a disability and to have done the act charged in respect of a specified offence and made subject to a hospital order or a supervision order.
Section 99(4) completes the list of offenders who may be subject to a VOO to include those who have been dealt with in an equivalent way under the law in force in a country outside England and Wales. Subsections (5) to (8) relate to the provisions in subsection (4) but are not repeated here.
The term ‘pecified offence’in Part 7 is defined in Section 98(3) as meaning the following:
(a) manslaughter (b) an offence under section 4 of the Offences against the Person Act 1861 (soliciting murder)
(c) an offence under section 18 of that Act (wounding with intent to cause grievous bodily harm)
(d) an offence under section 20 of that Act (malicious wounding)
(e) attempting to commit murder or conspiracy to commit murder
(f) a relevant service offence (theses are defined in Subsection (4) but are not repeated here)
Under Section 98(1), a VOO contains such restrictions, prohibitions or conditions authorised by Section 102 as the court considers necessary to protect the public from the risk of serious violent harm caused by the offender and have effect for a period specified by the court of not less than 2 nor more than 5 years. The words underlined above are, for the purposes of Part 7, to be a reference to protecting the public in the United Kingdom or any particular members of the public in the United Kingdom from a current risk of serious physical or psychological harm caused by the offender committing one or more specified offences (Section 98(2)).
Section 101 provides that the magistrates’ court may make a VOO if it is satisfied that the offender “qualifies” for an order in terms of his age and previous history (see Paragraphs 4 and 5 above) and that, since the appropriate date (as described in Section 100(5)), he has acted in such a way as to make it necessary to make a VOO for the purpose of protecting the public from the risk of serious violent harm caused by him. Case law and rules of evidence applicable to other civil orders such as Sexual Offences Prevention Orders will be relevant in making this determination. When deciding whether it is necessary to make a VOO, the court must have regard to whether the offender would at the same time be subject under any other enactment to other measures that would operate to protect the public from the risk of such harm. A VOO may not be made so as to come into force at any time when the offender is subject to a custodial sentence imposed in respect of any offence, is on licence for part of the term of such a sentence, or is subject to a hospital order or a supervision order made in respect of any offence. However, a VOO may be applied for, and made, at such a time. Section 127(1) of the Magistrates’ Court Act 1980 ordinarily prevents a magistrates court from hearing a complaint unless the complaint was made within six months of the matter of the complaint arising. However this is subject to any express provision to the contrary. Section 101 (3) (b) provides that a complaint can be based on behaviour which occurred at any time since the offender became a qualifying offender.
Section 102 provides that a VOO may contain prohibitions, restrictions or conditions (which may relate to conduct in Scotland or Northern Ireland (as well as in England or Wales) preventing the offender:
(a) from going to any specified* premises or any other specified* place (whether at all, or at or between any specified* time or times) (b) from attending any specified* event
(c) from having any, or any specified* description of, contact with any specified* individual
- i.e. specified in the VOO
Section 103 makes provision for the variation, renewal or discharge of a VOO by complaint to a magistrates’ court. These provisions are not repeated here.
Section 104 makes provision for interim VOOs, where an application for a VOO (the main order) has not yet been determined. These provisions are not repeated here.
Section 105 provides that the hearing of an application for a VOO or an interim VOO or for the variation or discharge of either or the renewal of the former, may not begin unless the court is satisfied that the relevant person (as defined in Subsection (3)) has been given reasonable notice of the application and the time and place of its hearing.
Section 106 gives right of appeal to the offender against the making of a VOO, an interim VOO or the making of, or the refusal to make, an order for variation, discharge or renewal, to the Crown Court. On such appeal, the Crown Court may make such orders as may be necessary to give effect to its determination of the appeal and may also make such incidental or consequential orders as appear to it to be just. For the purposes of any subsequent application for variation, renewal or discharge, an order made on appeal is to be treated as if made by the court from which the appeal was brought (Subsection (4)).
Section 107 provides that an offender subject to a VOO or an interim VOO which is in force is also subject to the notification requirements set out in Part 7. Section 108 requires the offender to notify the information listed in Subsection (2) to the police within the period of 3 days of the order coming into force.
Section 109 provides that the offender must notify “new information” as set out in Subsection (3) and any changes to certain information notified under Section 108(2), within the period of 3 days beginning with the date on which the notifiable event occurs. Subsections (2) to (9) amplify these provisions.
Section 110 makes provision for periodic notification by offenders subject to a VOO (but not an interim VOO) of information set out in Section 108(2).
Section 111 enables the Secretary of State to make provision by regulations for further notification requirements pertaining to the offender’s travel outside the United Kingdom.
Section 112 provides for the methods of notification to the police under Section 108 (initial notification), 109 (changes) and 110 (periodic notification) and for related matters such as fingerprinting and photographing.
Section 113 creates offences of
- failing without reasonable excuse to comply with any prohibition, restriction or condition in a VOO or an interim VOO
- failing without reasonable excuse to comply with the notification requirements or to allow an officer to take fingerprints, a photograph
- notifying information known to be false
for which the penalty on summary conviction is imprisonment for a period not exceeding the relevant period (as defined in subsection (7)) or a fine not exceeding the statutory maximum or both; and, on conviction on indictment, is imprisonment for a term not exceeding 5 years or a fine or both.
Sections 114, 115 and 116 apply, respectively, to the supply of information to the Secretary of State (etc), the supply of information from the Secretary of State (etc) and the enabling of the Secretary of State to make regulations about giving information about the release or transfer of a serving or otherwise detained offender by the responsible person.
Section 117 is the interpretation section for Part 7.
Access to Legal Aid is available for defendants in any proceedings relating to VOOs. In the interests of ensuring access to justice for all, the Legal Services Commission will treat VOO proceedings as criminal for the purposes of funding and has amended the Criminal Defence Service (General) No.2 Regulations 2001 to allow funding to be made available
Violent Offender Orders will be subject to The Magistrates’ Courts (Violent Offender Orders) Rules 2009. These rules will prescribe the application forms and the forms of order for a VOO and an Interim VOO.
They will also set out the application requirements for variation, renewal and discharge of an order and set a timeline for offenders convicted abroad to give notice of their intention to contest that their offence would have been a specified offence if done in England and Wales. These court rules, when made, will come into effect in early September.
- Violent Offender Orders are designed to help the police protect the public from the most dangerous violent offenders in our communities. Without interrupting due process, applications and hearings for Violent Offender Orders are expected to be dealt with as a matter of urgency.
Published: 27 July 2009
From: Home Office