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Domestic Violence, Crime and Victims Act 2004

Hospital direction

Section 39: Victims’ rights: preliminary

123.Section 39 applies instead ofsection 35 by virtue ofsection 35(2) where the sentencing court makes a hospital direction and limitation direction in respect of an offender in addition to giving him a relevant prison sentence.  The local probation board has the same responsibility to take reasonable steps to establish whether the victim of the offence wishes to make representations, broadly, about whether the offender should be subject to conditions or supervision requirements in the event of his discharge or release from hospital or prison (an d if so what conditions or requirements). The board must also establish whether the victim wishes to receive information about the conditions or requirements to which the offender is to be subject in the event of his release or discharge.

Section 40: Representations

124.Section 40 follows on from section 39 and requires the board to forward the victim’s representations to the relevant authority taking decisions on discharge, in the event that the offender is discharged under the powers in the Mental Health Act 1983. The Home Secretary is required to inform the board if he is considering lifting restrictions, discharging the offender under the 1983 Act powers or varying conditions of discharge. A Mental Health Review Tribunal is required to inform the board if it receives an application or reference in respect of the offender’s discharge. The board must then pass any information so received to a victim who has expressed a wish to make representations so that he may do so. The board must also pass that information to a victim who, regardless of whether he expressed a wish to or not, has in fact made representations on the matters described in section 40.

Section 41: Information

125.Section 41 also follows on fromsection 39 and requires the board to inform a victim who has so requested to receive information specified in that section, whether the offender is to be subject to conditions in the event that he is discharged under the powers in the Mental Health Act 1983, and if so, to provide details of any such conditions relating to contact with the victim or his family. It also requires the board to notify him of the date on which any restrictions will cease to have effect. The board is also required to inform the victim if the offender is to be subject to any licence conditions or supervision requirements in the event of his release and to inform him of any such conditions or requirements which relate to contact with him or his family. In addition the board should provide the victim with any other information it considers appropriate.

126.So that the board is in a position to comply with these obligations, the Home Secretary must inform the board if he is considering discharging the offender under the 1983 Act powers. He must also give the board information regarding any conditions of discharge or recall to hospital, and the date on which restrictions will cease to have effect if he is lifting them.

127.If an application or reference is made to a Mental Health Review Tribunal it must inform the board if it is going to discharge the offender under the 1983 Act powers; it must also give the board information regarding conditions of discharge and when restrictions will cease if the tribunal grants an absolute discharge.

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