Victims' rights to make representations and receive information
Effect of Mental Health Act 2007
Section 48 and Schedule 6 of the Mental Health Act 2007, when in force, will extend, with modifications, victims' rights to cover certain unrestricted patients: (1) s37; (2) s45A hospital direction with expired limitation direction; and (3) s47 (patient transferred without restrictions, or restrictions have ceased). See Domestic Violence Crime and Victims Act 2004 applies to unrestricted criminal patients 3/11/08 for details.
Introduction and applicability
The relevant legislation is the Domestic Violence Crime and Victims Act 2004 Part 3 (“Victims etc”) Chapter 2 (“Representation and Information”). See also the relevant part of the official Explanatory Note. All section numbers on this page refer to that Act unless otherwise stated.
For a sexual or violent offence, the Act applies in the following cases:
- (1) a relevant sentence (where case (2) does not apply) was imposed.
- (2) a relevant sentence together with a hospital direction and limitation direction (MHA 1983 s45A) were imposed.
- (3) a relevant sentence was imposed and followed by a transfer direction and restriction direction (MHA 1983 s47/49).
- (4) a hospital order and restriction order (MHA 1983 s37/41) were imposed after conviction, or after a finding of not guilty by reason of insanity, or after findings made under CPIA 1964 ss4-4A (under a disability and did the act/made the omission).
A “sexual or violent offence” is defined in s45(2) as:
- (a) murder, or an offence specified in Schedule 15 to the Criminal Justice Act 2003
- (b) an offence in respect of which the patient or offender is subject to the notification requirements of Part 2 of the Sexual Offences Act 2003
- (c) an offence against a child within the meaning of Part 2 of the Criminal Justice and Court Services Act 2000.
A “relevant sentence” is defined in s45, but is essentially any sentence of imprisonment/detention, or DTO, of 12 months or more, or any sentence of detention during Her Majesty's pleasure.
The Act is split into various segments: s35 relates to case (1) above; ss36-38 to case (4); ss39-41 to case (2); ss42-44 to case (3). The provisions relating to each are long-winded and almost identical. In the summary below, references to “conditions” and “discharge” apply to cases (2)-(4) above; references to “licence conditions or supervision requirements” and “release” apply to cases (1)-(2) above. The “relevant local probation board” is in the area of any proposed residence condition, the area of any supervising probation officer or, in any other case, the area of the hospital/prison/place of detention (See s35, s37(8), s40(8), s43(8)).
The local probation board for the area of the court (or the hospital in the transfer direction) must take all reasonable steps to ascertain whether a person who appears to the board to be the victim of the offence, or his representative, wishes
- (a) to make representations about what, if any, conditions/licence conditions/supervision requirements the offender should be subject to if released/discharged or
- (b) to receive the information about any conditions/licence conditions/supervision requirements to which the offender is to be subject in the event of release/discharge.
The relevant local probation board must forward any such representations received (by the relevant local probation board or the local probation board mentioned above) from a person appearing to be the victim, or his representative, to the persons responsible for determining the matters. In relation to discharge conditions (as opposed to licence conditions or supervision requirements) this duty only applies for the duration of the restriction order/limitation direction/restriction direction.
The Secretary of State must inform the relevant local probation board if he is considering lifting restrictions (MHA 1983 s42(1)), discharging (MHA 1983 s42(2)), or varying conditions; the MHRT must inform the board if an application (MHA 1983 s69, s70, s75) or reference (MHA 1983 s71) is made; the board must pass any such information to any person appearing to be the victim or his representative if that person has made representations or expressed a wish to do so.
Where a person appearing to be the victim or his representative has expressed a wish to receive the information as described above (when asked or subsequently), the board must take all reasonable steps to inform the person, where relevant:
- whether the patient/offender is to be subject to conditions/licence conditions/supervision requirements in event of discharge/release;
- details of conditions relating to contact with victim or his family;
- if the restriction order/limitation direction/restriction direction is to cease, when;
- any such information considered to be appropriate in the circumstances.
The Secretary of State (or the Tribunal, if there has been an application or reference) must inform the local probation board, where relevant:
- whether the patient is to be discharged;
- if so, whether absolutely or conditionally, and details of any conditions;
- any variation of existing conditions;
- in the case of the Secretary of State, any recall under MHA 1983 s42(3).
- if the restriction order/limitation direction/restriction direction is to cease due to a decision of the Secretary of State or Tribunal, when.
Duties to provide information relating to discharge conditions (as opposed to licence conditions or supervision requirements) only apply while the restriction order/limitation direction/restriction direction remains in force.