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Domestic Violence, Crime and Victims Act 2004

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Domestic Violence, Crime and Victims Act 2004, Chapter 2 is up to date with all changes known to be in force on or before 14 December 2018. There are changes that may be brought into force at a future date. Changes that have been made appear in the content and are referenced with annotations. Help about Changes to Legislation

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Chapter 2E+W+N.I.Representations and information

Imprisonment or detentionE+W

35Victims' rights to make representations and receive informationE+W

(1)This section applies if—

(a)a court convicts a person (“the offender”) of a sexual or violent offence, and

(b)a relevant sentence is imposed on him in respect of the offence.

(2)But section 39 applies (instead of this section) if a hospital direction and a limitation direction are given in relation to the offender.

(3)The local probation board for the area in which the sentence is imposed [F1, or the provider of probation services operating in the local justice area in which the sentence is imposed, ] must take all reasonable steps to ascertain whether a person who appears to the board to be the victim of the offence or to act for the victim of the offence wishes—

(a)to make representations about the matters specified in subsection (4);

(b)to receive the information specified in subsection (5).

[F2(3A)The provider of probation services mentioned in subsection (3) is the provider of probation services identified as such by arrangements under section 3 of the Offender Management Act 2007.]

(4)The matters are—

(a)whether the offender should be subject to any licence conditions or supervision requirements in the event of his release;

(b)if so, what licence conditions or supervision requirements.

(5)The information is information about any licence conditions or supervision requirements to which the offender is to be subject in the event of his release.

(6)If a person whose wishes have been ascertained under subsection (3) makes representations to the local probation board [F3or provider of probation services] mentioned in that subsection or the [F4relevant probation body] about a matter specified in subsection (4), the [F4relevant probation body] must forward those representations to the persons responsible for determining the matter.

(7)If a local probation board [F5or a provider of probation services] has ascertained under subsection (3) that a person wishes to receive the information specified in subsection (5), the [F6relevant probation body] must take all reasonable steps—

(a)to inform the person whether or not the offender is to be subject to any licence conditions or supervision requirements in the event of his release,

(b)if he is, to provide the person with details of any licence conditions or supervision requirements which relate to contact with the victim or his family, and

(c)to provide the person with such other information as the [F6relevant probation body] considers appropriate in all the circumstances of the case.

[F7(8)In this section “the relevant probation body” is—

(a)in a case where the offender is to be supervised on release by an officer of a local probation board or an officer of a provider of probation services, that local probation board or that provider of probation services (as the case may be);

(b)in any other case—

(i)if the prison or other place in which the offender is detained is situated in the area of a local probation board, that local probation board; and

(ii)if that prison or other place is not in such an area, the provider of probation services operating in the local justice area in which the prison or other place in which the offender is detained is situated, that is identified as the relevant probation body by arrangements under section 3 of the Offender Management Act 2007.]

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Amendments (Textual)

Hospital ordersE+W

36Victims' rights: preliminaryE+W

(1)This section applies if the conditions in subsections (2) and (3) are met.

(2)The first condition is that one of these applies in respect of a person (“the patient”) charged with a sexual or violent offence—

(a)the patient is convicted of the offence;

(b)a verdict is returned that the patient is not guilty of the offence by reason of insanity;

(c)a finding is made—

(i)under section 4 of the Criminal Procedure (Insanity) Act 1964 (c. 84) that the patient is under a disability, and

(ii)under section 4A of that Act that he did the act or made the omission charged against him as the offence.

(3)The second condition is that a hospital order [F8, whether with or without a restriction order,] is made in respect of the patient by a court dealing with him for the offence.

(4)The local probation board for the area in which the determination mentioned in subsection (2)(a), (b) or (c) is made [F9or the provider of probation services operating in the local justice area in which the determination mentioned in subsection (2)(a), (b) or (c) is made ] must take all reasonable steps to ascertain whether a person who appears to the board to be the victim of the offence or to act for the victim of the offence wishes—

(a)to make representations about the matters specified in subsection (5);

(b)to receive the information specified in subsection (6).

[F10(4A)The provider of probation services mentioned in subsection (4) is the provider of probation services identified as such by arrangements under section 3 of the Offender Management Act 2007.]

(5)The matters are—

(a)whether the patient should be subject to any conditions in the event of his discharge from hospital [F11while a restriction order is in force in respect of him];

(b)if so, what conditions [F12;

(c)what conditions he should be subject to in the event of his discharge from hospital under a community treatment order].

(6)The information is information about any conditions to which the patient is to be subject in the event of his discharge from hospital.

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Amendments (Textual)

[F1336ASupplemental provision for case where no restriction order madeE+W

(1)This section applies if, in a case where section 36 applies, the hospital order in respect of the patient was made without a restriction order.

(2)Subsection (3) applies if a person who appears to the local probation board or provider of probation services mentioned in section 36(4) to be the victim of the offence or to act for the victim of the offence, when his wishes are ascertained under section 36(4), expresses a wish—

(a)to make representations about a matter specified in section 36(5), or

(b)to receive the information specified in section 36(6).

(3)The local probation board or the provider of probation services must—

(a)notify the managers of the hospital in which the patient is detained of that person's wish and of that person's name and address, and

(b)notify that person of the name and address of the hospital.

(4)Subsection (5) applies if a person who appears to the local probation board or provider of probation services mentioned in section 36(4) to be the victim of the offence or to act for the victim of the offence, subsequently to his wishes being ascertained under section 36(4), expresses a wish to do something specified in subsection (2)(a) or (b).

(5)The local probation board or provider of probation services mentioned in section 36(4) must take all reasonable steps—

(a)to ascertain whether the hospital order made in respect of the patient continues in force and whether a community treatment order is in force in respect of him, and

(b)if the board or provider ascertains that the hospital order does continue in force—

(i)to notify the managers of the relevant hospital of that person's wish, and

(ii)to notify that person of the name and address of the hospital.

(6)The relevant hospital is—

(a)the hospital in which the patient is detained, or

(b)if a community treatment order is in force in respect of the patient, the responsible hospital.]

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Amendments (Textual)

37[F14Representations where restriction order made]E+W

(1)This section applies [F15if, in a case where section 36 applies, the hospital order in respect of the patient was made with a restriction order].

(2)If—

(a)a person makes representations about a matter specified in section 36(5) to the local probation board [F16or provider of probation services] mentioned in section 36(4) or the [F17relevant probation body], and

(b)it appears to the [F17relevant probation body] that the person is the victim of the offence or acts for the victim of the offence,

the [F17relevant probation body] must forward the representations to the persons responsible for determining the matter.

(3)The duty in subsection (2) applies only while the restriction order made in respect of the patient is in force.

(4)The Secretary of State must inform the [F18relevant probation body] if he is considering—

(a)whether to give a direction in respect of the patient under section 42(1) of the Mental Health Act 1983 (c. 20) (directions lifting restrictions),

(b)whether to discharge the patient under section 42(2) of that Act, either absolutely or subject to conditions, or

(c)if the patient has been discharged subject to conditions, whether to vary the conditions.

(5)[F19The First-tier Tribunal or the Mental Health Review Tribunal for Wales] must inform the [F20relevant probation body] if—

(a)an application is made to the tribunal by the patient under section 69, 70 or 75 of the Mental Health Act 1983 (applications concerning restricted patients), or

(b)the Secretary of State refers the patient’s case to the tribunal under section 71 of that Act (references concerning restricted patients).

(6)Subsection (7) applies if—

(a)the [F21relevant probation body] receives information under subsection (4) or (5), and

(b)a person who appears to the [F21relevant probation body] to be the victim of the offence or to act for the victim of the offence—

(i)when his wishes were ascertained under section 36(4), expressed a wish to make representations about a matter specified in section 36(5), or

(ii)has made representations about such a matter to the [F21relevant probation body] or the local probation board [F22or provider of probation services] mentioned in section 36(4).

(7)The [F23relevant probation body] must provide the information to the person.

[F24(8)In this section, “the relevant probation body” is—

(a)in a case where the patient is to be discharged subject to a condition that he reside in a particular area, which is or is part of the area of a local probation board, that local probation board;

(b)in a case where the patient is to be discharged subject to a condition that he reside in a particular area other than one mentioned in paragraph (a), the provider of probation services operating in that area that is identified as the relevant probation body by arrangements under section 3 of the Offender Management Act 2007;

(c)in any other case—

(i)if the hospital in which the patient is detained is situated in the area of a local probation board, that area; and

(ii)if that hospital is not so situated, the provider of probation services operating in the local justice area in which the hospital in which the patient is detained is situated that is identified as the relevant probation body by arrangements under section 3 of the Offender Management Act 2007.]

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Amendments (Textual)

[F2537ARepresentations where restriction order not madeE+W

(1)This section applies if, in a case where section 36 applies, the hospital order in respect of the patient was made without a restriction order.

(2)Subsection (3) applies if—

(a)a person makes representations about a matter specified in section 36(5) to the managers of the relevant hospital, and

(b)it appears to the managers that the person is the victim of the offence or acts for the victim of the offence.

(3)The managers must forward the representations to the persons responsible for determining the matter.

(4)The responsible clinician must inform the managers of the relevant hospital if he is considering making—

(a)an order for discharge in respect of the patient under section 23(2) of the Mental Health Act 1983,

(b)a community treatment order in respect of the patient, or

(c)an order under section 17B(4) of the Mental Health Act 1983 to vary the conditions specified in a community treatment order in force in respect of the patient.

F26(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)[F27The First-tier Tribunal or the Mental Health Review Tribunal for Wales] must inform the managers of the relevant hospital if—

(a)an application is made to the tribunal under section 66 or 69 of the Mental Health Act 1983, or

(b)the patient's case is referred to the tribunal under section 67 of that Act.

(7)Subsection (8) applies if—

(a)the managers of the relevant hospital receive information under subsection (4)F28... or (6), and

(b)a person who appears to the managers to be the victim of the offence or to act for the victim of the offence—

(i)when his wishes were ascertained under section 36(4), expressed a wish to make representations about a matter specified in section 36(5), or

(ii)has made representations about such a matter to the managers of the hospital in which the patient was, at the time in question, detained.

(8)The managers of the relevant hospital must provide the information to the person.

(9)The relevant hospital has the meaning given in section 36A(6).]

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Amendments (Textual)

38[F29Information where restriction order made]E+W

(1)This section applies [F30if, in a case where section 36 applies, the hospital order in respect of the patient was made with a restriction order].

(2)Subsection (3) applies if a person who appears to the [F31relevant probation body] to be the victim of the offence or to act for the victim of the offence—

(a)when his wishes were ascertained under section 36(4), expressed a wish to receive the information specified in section 36(6), or

(b)has subsequently informed the [F31relevant probation body] that he wishes to receive that information.

(3)The [F32relevant probation body] must take all reasonable steps—

(a)to inform that person whether or not the patient is to be subject to any conditions in the event of his discharge;

(b)if he is, to provide that person with details of any conditions which relate to contact with the victim or his family;

(c)if the restriction order in respect of the patient is to cease to have effect, to notify that person of the date on which it is to cease to have effect;

(d)to provide that person with such other information as [F33the body] considers appropriate in all the circumstances of the case.

(4)The Secretary of State must inform the [F34relevant probation body]

(a)whether the patient is to be discharged;

(b)if he is, whether he is to be discharged absolutely or subject to conditions;

(c)if he is to be discharged subject to conditions, what the conditions are to be;

(d)if he has been discharged subject to conditions—

(i)of any variation of the conditions by the Secretary of State;

(ii)of any recall to hospital under section 42(3) of the Mental Health Act 1983 (c. 20);

(e)if the restriction order is to cease to have effect by virtue of action to be taken by the Secretary of State, of the date on which the restriction order is to cease to have effect.

(5)Subsections (6) and (7) apply (instead of subsection (4)) if—

(a)an application is made to [F35the First-tier Tribunal or the Mental Health Review Tribunal for Wales] by the patient under section 69, 70 or 75 of the Mental Health Act 1983 (c. 20) (applications concerning restricted patients), or

(b)the Secretary of State refers the patient’s case to [F35the First-tier Tribunal or the Mental Health Review Tribunal for Wales] under section 71 of that Act (references concerning restricted patients).

(6)The tribunal must inform the [F36relevant probation body]

(a)of the matters specified in subsection (4)(a) to (c);

(b)if the patient has been discharged subject to conditions, of any variation of the conditions by the tribunal;

(c)if the restriction order is to cease to have effect by virtue of action to be taken by the tribunal, of the date on which the restriction order is to cease to have effect.

(7)The Secretary of State must inform the [F37relevant probation body] of the matters specified in subsection (4)(d) and (e).

(8)The duties in subsections (3) to (7) apply only while the restriction order is in force.

(9)The [F38relevant probation body] has the meaning given in section 37(8).

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Amendments (Textual)

[F3938AInformation where restriction order not madeE+W

(1)This section applies if, in a case where section 36 applies, the hospital order in respect of the patient was made without a restriction order.

(2)The responsible clinician must inform the managers of the relevant hospital—

(a)whether he is to make an order for discharge in respect of the patient under section 23(2) of the Mental Health Act 1983;

(b)whether he is to make a community treatment order in respect of the patient;

(c)if a community treatment order is to be made in respect of the patient, what conditions are to be specified in the order;

(d)if a community treatment order is in force in respect of the patient, of any variation to be made under section 17B(4) of the Mental Health Act 1983 of the conditions specified in the order;

(e)if a community treatment order in respect of the patient is to cease to be in force, of the date on which it is to cease to be in force;

(f)if, following the examination of the patient under section 20 of the Mental Health Act 1983, it does not appear to the responsible clinician that the conditions set out in subsection (4) of that section are satisfied, of the date on which the authority for the patient's detention is to expire.

F40(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Subsection (5) applies if—

(a)an application is made to [F41the First-tier Tribunal or the Mental Health Review Tribunal for Wales] under section 66 or 69 of the Mental Health Act 1983,

(b)the patient's case is referred to [F41the First-tier Tribunal or the Mental Health Review Tribunal for Wales] under section 67 of that Act, or

(c)the managers of the relevant hospital refer the patient's case to [F41the First-tier Tribunal or the Mental Health Review Tribunal for Wales] under section 68 of that Act.

(5)The tribunal must inform the managers of the relevant hospital if it directs that the patient is to be discharged.

(6)Subsection (7) applies if a person who appears to the managers of the relevant hospital to be the victim of the offence or to act for the victim of the offence—

(a)when his wishes were ascertained under section 36(4), expressed a wish to receive the information specified in section 36(6), or

(b)has subsequently informed the managers of the relevant hospital that he wishes to receive that information.

(7)The managers of the relevant hospital order must take all reasonable steps—

(a)to inform that person whether the patient is to be discharged under section 23 or 72 of the Mental Health Act 1983;

(b)to inform that person whether a community treatment order is to be made in respect of the patient;

(c)if a community treatment order is to be made in respect of the patient and is to specify conditions which relate to contact with the victim or his family, to provide that person with details of those conditions;

(d)if a community treatment order is in force in respect of the patient and the conditions specified in the order are to be varied under section 17B(4) of the Mental Health Act 1983, to provide that person with details of any variation which relates to contact with the victim or his family;

(e)if a community treatment order in respect of the patient is to cease to be in force, to inform that person of the date on which it is to cease to be in force;

(f)if, following the examination of the patient under section 20 of the Mental Health Act 1983, the authority for the patient's detention is not to be renewed, to inform that person of the date on which the authority is to expire;

(g)to provide that person with such other information as the managers of the relevant hospital consider appropriate in all the circumstances of the case.

(8)The relevant hospital has the meaning given by section 36A(6).]

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Amendments (Textual)

F39Ss. 38A, 38B inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 48, 56(1), Sch. 6 para. 7 (as amended by S.I. 2008/912, Sch. 1 para. 24(2)(b)) (with s. 50(8)-(13)); S.I. 2008/1900, arts. 1(1), 2(o) (with art. 3, Sch.)

[F4238BRemoval of restrictionE+W

(1)This section applies if, in a case where section 36 applies—

(a)the hospital order in respect of the patient was made with a restriction order, and

(b)the restriction order ceases to have effect while the hospital order continues in force.

(2)Subsection (3) applies if a person who appears to the relevant probation body to be the victim of the offence or to act for the victim of the offence—

(a)when his wishes were ascertained under section 36(4), expressed a wish to make representations about a matter specified in section 36(5) or to receive the information specified in section 36(6), or

(b)has subsequently informed the relevant probation body that he wishes to make representations about such a matter or to receive that information.

(3)The relevant probation body must take all reasonable steps—

(a)to notify the managers of the relevant hospital of an address at which that person may be contacted;

(b)to notify that person of the name and address of the hospital.

(4)While the hospital order continues in force, the patient is to be regarded as a patient in respect of whom a hospital order was made without a restriction order; and sections 37A and 38A are to apply in relation to him accordingly.

(5)The relevant hospital has the meaning given in section 36A(6).

(6)The relevant probation body has the meaning given in section 37(8).]

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Amendments (Textual)

Hospital directionsE+W

39Victims' rights: preliminaryE+W

(1)This section applies if—

(a)a person (“the offender”) is convicted of a sexual or violent offence,

(b)a relevant sentence is imposed on him in respect of the offence, and

(c)a hospital direction and a limitation direction are given in relation to him by a court dealing with him for the offence.

(2)The local probation board for the area in which the hospital direction is given [F43, or the provider of probation services operating in the local justice area in which the hospital direction is given,] must take all reasonable steps to ascertain whether a person who appears to the board to be the victim of the offence or to act for the victim of the offence wishes—

(a)to make representations about the matters specified in subsection (3);

(b)to receive the information specified in subsection (4).

[F44(2A)The provider of probation services mentioned in subsection (2) is the provider of probation services identified as such by arrangements under section 3 of the Offender Management Act 2007.]

(3)The matters are—

(a)whether the offender should, in the event of his discharge from hospital [F45while he is subject to a limitation direction], be subject to any conditions and, if so, what conditions;

[F46(aa)what conditions he should be subject to in the event of his discharge from hospital under a community treatment order;]

(b)whether the offender should, in the event of his release from hospital, be subject to any licence conditions or supervision requirements and, if so, what licence conditions or supervision requirements;

(c)if the offender is transferred to a prison or other institution in which he might have been detained if he had not been removed to hospital, whether he should, in the event of his release from prison or another such institution, be subject to any licence conditions or supervision requirements and, if so, what licence conditions or supervision requirements.

(4)The information is—

(a)information about any conditions to which the offender is to be subject in the event of his discharge;

(b)information about any licence conditions or supervision requirements to which the offender is to be subject in the event of his release.

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Amendments (Textual)

40RepresentationsE+W

(1)This section applies if section 39 applies.

(2)If—

(a)a person makes representations about a matter specified in section 39(3) to the local probation board [F47or provider of probation services] mentioned in section 39(2) or the [F48relevant probation body], and

(b)it appears to the [F48relevant probation body] that the person is the victim of the offence or acts for the victim of the offence,

the [F48relevant probation body] must forward the representations to the persons responsible for determining the matter.

(3)If the representations are about a matter specified in section 39(3)(a), the duty in subsection (2) applies only while the limitation direction given in relation to the offender is in force.

(4)The Secretary of State must inform the [F49relevant probation body] if he is considering—

(a)whether to give a direction in respect of the offender under section 42(1) of the Mental Health Act 1983 (c. 20) (directions lifting restrictions),

(b)whether to discharge the offender under section 42(2) of that Act, either absolutely or subject to conditions, or

(c)if the offender has been discharged subject to conditions, whether to vary the conditions.

(5)[F50The First-tier Tribunal or the Mental Health Review Tribunal for Wales] must inform the [F51relevant probation body] if—

(a)an application is made to the tribunal by the offender under section 69, 70 or 75 of the Mental Health Act 1983 (applications concerning restricted patients), or

(b)the Secretary of State refers the offender’s case to the tribunal under section 71 of that Act (references concerning restricted patients).

(6)Subsection (7) applies if—

(a)the [F52relevant probation body] receives information under subsection (4) or (5), and

(b)a person who appears to the [F52relevant probation body] to be the victim of the offence or to act for the victim of the offence—

(i)when his wishes were ascertained under section 39(2), expressed a wish to make representations about a matter specified in section 39(3)(a), or

(ii)has made representations about such a matter to the [F52relevant probation body] or the local probation board [F53or provider of probation services] mentioned in section 39(2).

(7)The [F54relevant probation body] must provide the information to the person.

[F55(8)For the purposes of this section, “the relevant probation body” is—

(a)in a case where the offender is to be discharged from hospital subject to a condition that he reside in a particular area, which is or is part of the area of a local probation board, that local probation board;

(b)in a case where the offender is to be discharged from hospital subject to a condition that he reside in a particular area other than one mentioned in paragraph (a), the provider of probation services operating in that area that is identified as the relevant probation body by arrangements under section 3 of the Offender Management Act 2007;

(c)in a case where the offender is to be supervised on release by an officer of a local probation board or an officer of a provider of probation services, that local probation board or that provider of probation services (as the case may be);

(d)in any other case—

(i)if the hospital, prison or other place in which the offender is detained is situated in the area of a local probation board, that area; and

(ii)if that hospital, prison or other place is not so situated, the provider of probation services operating in the local justice area in which the hospital, prison or other place in which the offender is detained is situated, that is identified as the relevant probation body by arrangements under section 3 of the Offender Management Act 2007.]

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Amendments (Textual)

41InformationE+W

(1)This section applies if section 39 applies.

(2)Subsection (3) applies if a person who appears to the [F56relevant probation body] to be the victim of the offence or to act for the victim of the offence—

(a)when his wishes were ascertained under section 39(2), expressed a wish to receive the information specified in section 39(4), or

(b)has subsequently informed the [F56relevant probation body] that he wishes to receive that information.

(3)The [F57relevant probation body] must take all reasonable steps—

(a)to inform that person whether or not the offender is to be subject to any conditions in the event of his discharge;

(b)if he is, to provide that person with details of any conditions which relate to contact with the victim or his family;

(c)if the limitation direction in respect of the offender is to cease to have effect, to notify that person of the date on which it is to cease to have effect;

(d)to inform that person whether or not the offender is to be subject to any licence conditions or supervision requirements in the event of his release;

(e)if he is, to provide that person with details of any licence conditions or supervision requirements which relate to contact with the victim or his family;

(f)to provide that person with such other information as the board considers appropriate in all the circumstances of the case.

(4)The Secretary of State must inform the [F58relevant probation body]

(a)whether the offender is to be discharged;

(b)if he is, whether he is to be discharged absolutely or subject to conditions;

(c)if he is to be discharged subject to conditions, what the conditions are to be;

(d)if he has been discharged subject to conditions—

(i)of any variation of the conditions by the Secretary of State;

(ii)of any recall to hospital under section 42(3) of the Mental Health Act 1983 (c. 20);

(e)if the limitation direction is to cease to have effect by virtue of action to be taken by the Secretary of State, of the date on which the limitation direction is to cease to have effect.

(5)Subsections (6) and (7) apply (instead of subsection (4)) if—

(a)an application is made to [F59the First-tier Tribunal or the Mental Health Review Tribunal for Wales] by the offender under section 69, 70 or 75 of the Mental Health Act 1983 (c. 20) (applications concerning restricted patients), or

(b)the Secretary of State refers the offender’s case to [F59the First-tier Tribunal or the Mental Health Review Tribunal for Wales] under section 71 of that Act (references concerning restricted patients).

(6)The tribunal must inform the [F60relevant probation body]

(a)of the matters specified in subsection (4)(a) to (c);

(b)if the offender has been discharged subject to conditions, of any variation of the conditions by the tribunal;

(c)if the limitation direction is to cease to have effect by virtue of action to be taken by the tribunal, of the date on which the limitation direction is to cease to have effect.

(7)The Secretary of State must inform the [F61relevant probation body] of the matters specified in subsection (4)(d) and (e).

(8)The duties in subsections (3)(a) to (c) and (4) to (7) apply only while the limitation direction is in force.

(9)The [F62relevant probation body] has the meaning given in section 40(8).

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Amendments (Textual)

[F6341ARemoval of restrictionE+W

(1)This section applies if, in a case where section 39 applies—

(a)the limitation direction in respect of the offender ceases to be in force, and

(b)he is treated for the purposes of the Mental Health Act 1983 as a patient in respect of whom a hospital order has effect.

(2)Subsection (3) applies if a person who appears to the relevant probation body to be the victim of the offence or to act for the victim of the offence—

(a)when his wishes were ascertained under section 39(2), expressed a wish to make representations about a matter specified in section 39(3) or to receive the information specified in section 39(4), or

(b)has subsequently informed the relevant probation body that he wishes to make representations about such a matter or to receive that information.

(3)The relevant probation body must take all reasonable steps—

(a)to notify the managers of the relevant hospital of an address at which that person may be contacted;

(b)to notify that person of the address of the hospital.

(4)The offender is to be regarded as a patient in respect of whom a hospital order was made without a restriction order; and sections 37A and 38A are to apply in relation to him accordingly.

(5)The relevant hospital has the meaning given in section 36A(6).

(6)The relevant probation body has the meaning given in section 40(8).]

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Amendments (Textual)

Transfer directionsE+W

42Victims' rights: preliminaryE+W

(1)This section applies if—

(a)a person (“the offender”) is convicted of a sexual or violent offence,

(b)a relevant sentence is imposed on him in respect of the offence, and

(c)while the offender is serving the sentence, the Secretary of State gives a transfer direction [F64in respect of the offender (whether or not he also gives a restriction direction in respect of the offender)].

(2)The local probation board for the area in which the hospital specified in the transfer direction is situated [F65or the provider of probation services operating in the local justice area in which the hospital specified in the transfer direction is situated] must take all reasonable steps to ascertain whether a person who appears to the board [F66or the provider] to be the victim of the offence or to act for the victim of the offence wishes—

(a)to make representations about the matters specified in subsection (3);

(b)to receive the information specified in subsection (4).

[F67(2A)The provider of probation services mentioned in subsection (2) is the provider of probation services identified as such by arrangements under section 3 of the Offender Management Act 2007.]

(3)The matters are—

(a)whether the offender should be subject to any conditions in the event of his discharge from hospital [F68at a time when a restriction direction is in force in respect of him];

(b)if so, what conditions [F69;

(c)what conditions he should be subject to in the event of his discharge from hospital under a community treatment order].

(4)The information is information about any conditions to which the offender is to be subject in the event of his discharge from hospital.

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Amendments (Textual)

[F7042ASupplemental provision for case where no restriction direction givenE+W

(1)This section applies if, in a case where section 42 applies, the transfer direction in respect of the patient was given without a restriction direction.

(2)Subsection (3) applies if a person who appears to the local probation board or provider of probation services mentioned in section 42(2) to be the victim of the offence or to act for the victim of the offence, when his wishes are ascertained under section 42(2), expresses a wish—

(a)to make representations about a matter specified in section 42(3), or

(b)to receive the information specified in section 42(4).

(3)The local probation board or provider of probation services must—

(a)notify the managers of the hospital in which the patient is detained of that person's wish and of that person's name and address, and

(b)notify that person of the name and address of the hospital.

(4)Subsection (5) applies if a person who appears to the local probation board or provider of probation services mentioned in section 42(2) to be the victim of the offence or to act for the victim of the offence, subsequently to his wishes being ascertained under section 42(2), expressed a wish to do something specified in subsection (2)(a) or (b).

(5)The local probation board or provider of probation services mentioned in section 42(2) must take all reasonable steps—

(a)to ascertain whether the transfer direction given in respect of the patient continues in force and whether a community treatment order is in force in respect of him, and

(b)if the board or the provider ascertains that the transfer direction does continue in force—

(i)to notify the managers of the relevant hospital of that person's wish, and

(ii)to notify that person of the name and address of the hospital.

(6)The relevant hospital has the meaning given in section 36A(6).]

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Amendments (Textual)

43[F71Representations where restriction direction made]E+W

(1)This section applies [F72if, in a case where section 42 applies, the transfer direction in respect of the patient was given with a restriction direction].

(2)If—

(a)a person makes representations about a matter specified in section 42(3) to the local probation board [F73or provider of probation services] mentioned in section 42(2) or the [F74relevant probation body], and

(b)it appears to the [F74relevant probation body] that the person is the victim of the offence or acts for the victim of the offence,

the [F74relevant probation body] must forward the representations to the persons responsible for determining the matter.

(3)The duty in subsection (2) applies only while the restriction direction given in respect of the offender is in force.

(4)The Secretary of State must inform the [F75relevant probation body] if he is considering—

(a)whether to give a direction in respect of the offender under section 42(1) of the Mental Health Act 1983 (c. 20) (directions lifting restrictions),

(b)whether to discharge the offender under section 42(2) of that Act, either absolutely or subject to conditions, or

(c)if the offender has been discharged subject to conditions, whether to vary the conditions.

(5)[F76The First-tier Tribunal or the Mental Health Review Tribunal for Wales] must inform the [F77relevant probation body] if—

(a)an application is made to the tribunal by the offender under section 69, 70 or 75 of the Mental Health Act 1983 (applications concerning restricted patients), or

(b)the Secretary of State refers the offender’s case to the tribunal under section 71 of that Act (references concerning restricted patients).

(6)Subsection (7) applies if—

(a)the [F78relevant probation body] receives information under subsection (4) or (5), and

(b)a person who appears to the [F78relevant probation body] to be the victim of the offence or to act for the victim of the offence—

(i)when his wishes were ascertained under section 42(2), expressed a wish to make representations about a matter specified in section 42(3), or

(ii)has made representations about such a matter to the [F78relevant probation body] or the local probation board [F79or provider of probation services] mentioned in section 42(2).

(7)The [F80relevant probation body] must provide the information to the person.

[F81(8)In this section, “the relevant probation body” is—

(a)in a case where the offender is to be discharged subject to a condition that he reside in a particular area, which is or is part of the area of a local probation board, that local probation board;

(b)in a case where the offender is to be discharged subject to a condition that he reside in a particular area other than one mentioned in paragraph (a), the provider of probation services operating in that area that is identified as the relevant probation body by arrangements under section 3 of the Offender Management Act 2007;

(c)in any other case—

(i)if the hospital in which the offender is detained is situated in the area of a local probation board, that area; and

(ii)if that hospital is not so situated, the provider of probation services operating in the local justice area in which the hospital in which the offender is detained is situated, that is identified as the relevant probation body by arrangements under section 3 of the Offender Management Act 2007.]

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Amendments (Textual)

[F8243ARepresentations where restriction direction not givenE+W

(1)This section applies if, in a case where section 42 applies, the transfer direction in respect of the patient was given without a restriction direction.

(2)Subsection (3) applies if—

(a)a person makes representations about a matter specified in section 42(3) to the managers of the relevant hospital, and

(b)it appears to the managers that the person is the victim of the offence or acts for the victim of the offence.

(3)The managers must forward the representations to the persons responsible for determining the matter.

(4)The responsible clinician must inform the managers of the relevant hospital if he is considering making—

(a)an order for discharge in respect of the patient under section 23(2) of the Mental Health Act 1983,

(b)a community treatment order in respect of him, or

(c)an order under section 17B(4) of the Mental Health Act 1983 to vary the conditions specified in a community treatment order in force in respect of the patient.

F83(5). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(6)[F84The First-tier Tribunal or the Mental Health Review Tribunal for Wales] must inform the managers of the relevant hospital if—

(a)an application is made to the tribunal under section 66 or 69 of the Mental Health Act 1983, or

(b)the patient's case is referred to the tribunal under section 67 of that Act.

(7)Subsection (8) applies if—

(a)the managers of the relevant hospital receive information under subsection (4)F85... or (6), and

(b)a person who appears to the managers to be the victim of the offence or to act for the victim of the offence—

(i)when his wishes were ascertained under section 42(2), expressed a wish to make representations about a matter specified in section 42(3), or

(ii)has made representations about such a matter to the managers of the hospital in which the patient was, at the time in question, detained.

(8)The managers of the relevant hospital must provide the information to the person.

(9)The relevant hospital has the meaning given in section 36A(6).]

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Amendments (Textual)

44[F86Information where restriction direction made]E+W

(1)This section applies [F87if, in a case where section 42 applies, the transfer direction in respect of the patient was given with a restriction direction].

(2)Subsection (3) applies if a person who appears to the [F88relevant probation body] to be the victim of the offence or to act for the victim of the offence—

(a)when his wishes were ascertained under section 42(2), expressed a wish to receive the information specified in section 42(4), or

(b)has subsequently informed the [F88relevant probation body] that he wishes to receive that information.

(3)The [F89relevant probation body] must take all reasonable steps—

(a)to inform that person whether or not the offender is to be subject to any conditions in the event of his discharge;

(b)if he is, to provide that person with details of any conditions which relate to contact with the victim or his family;

(c)if the restriction direction in respect of the offender is to cease to have effect, to notify that person of the date on which it is to cease to have effect;

(d)to provide that person with such other information as the board [F90or the body] considers appropriate in all the circumstances of the case.

(4)The Secretary of State must inform the [F91relevant probation body]

(a)whether the offender is to be discharged;

(b)if he is, whether he is to be discharged absolutely or subject to conditions;

(c)if he is to be discharged subject to conditions, what the conditions are to be;

(d)if he has been discharged subject to conditions—

(i)of any variation of the conditions by the Secretary of State;

(ii)of any recall to hospital under section 42(3) of the Mental Health Act 1983 (c. 20);

(e)if the restriction direction is to cease to have effect by virtue of action to be taken by the Secretary of State, of the date on which the restriction direction is to cease to have effect.

(5)Subsections (6) and (7) apply (instead of subsection (4)) if—

(a)an application is made to [F92the First-tier Tribunal or the Mental Health Review Tribunal for Wales] by the offender under section 69, 70 or 75 of the Mental Health Act 1983 (applications concerning restricted patients), or

(b)the Secretary of State refers the offender’s case to [F92the First-tier Tribunal or the Mental Health Review Tribunal for Wales] under section 71 of that Act (references concerning restricted patients).

(6)The tribunal must inform the [F93relevant probation body]

(a)of the matters specified in subsection (4)(a) to (c);

(b)if the offender has been discharged subject to conditions, of any variation of the conditions by the tribunal;

(c)if the restriction direction is to cease to have effect by virtue of action to be taken by the tribunal, of the date on which the restriction direction is to cease to have effect.

(7)The Secretary of State must inform the [F94relevant probation body] of the matters specified in subsection (4)(d) and (e).

(8)The duties in subsections (3) to (7) apply only while the restriction direction is in force.

(9)The [F95relevant probation body] has the meaning given in section 43(8).

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Amendments (Textual)

[F9644AInformation where restriction direction not givenE+W

(1)This section applies if, in a case where section 42 applies, the transfer direction in respect of the patient was given without a restriction direction.

(2)The responsible clinician must inform the managers of the relevant hospital—

(a)whether he is to make an order for discharge in respect of the patient under section 23(2) of the Mental Health Act 1983;

(b)whether he is to make a community treatment order in respect of the patient;

(c)if a community treatment order is to be made in respect of the patient, what conditions are to be specified in the order;

(d)if a community treatment order is in force in respect of the patient, of any variation to be made under section 17B(4) of the Mental Health Act 1983 of the conditions specified in the order;

(e)if a community treatment order in respect of the patient is to cease to be in force, of the date on which it is to cease to be in force;

(f)if, following the examination of the patient under section 20 of the Mental Health Act 1983, it does not appear to the responsible clinician that the conditions set out in subsection (4) of that section are satisfied, of the date on which the authority for the patient's detention is to expire.

F97(3). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Subsection (5) applies if—

(a)an application is made to [F98the First-tier Tribunal or the Mental Health Review Tribunal for Wales] under section 66 or 69 of the Mental Health Act 1983,

(b)the patient's case is referred to [F98the First-tier Tribunal or the Mental Health Review Tribunal for Wales] under section 67 of that Act, or

(c)the managers of the relevant hospital refer the patient's case to [F98the First-tier Tribunal or the Mental Health Review Tribunal for Wales] under section 68 of that Act.

(5)The tribunal must inform the managers of the relevant hospital if it directs that the patient be discharged.

(6)Subsection (7) applies if a person who appears to the managers of the relevant hospital to be the victim of the offence or to act for the victim of the offence—

(a)when his wishes were ascertained under section 42(2), expressed a wish to receive the information specified in section 42(4), or

(b)has subsequently informed the managers of the relevant hospital that he wishes to receive that information.

(7)The managers of the relevant hospital order must take all reasonable steps—

(a)to inform that person whether the patient is to be discharged under section 23 or 72 of the Mental Health Act 1983;

(b)to inform that person whether a community treatment order is to be made in respect of the patient;

(c)if a community treatment order is to be made in respect of the patient and is to specify conditions which relate to contact with the victim or his family, to provide that person with details of those conditions;

(d)if a community treatment order is in force in respect of the patient and the conditions specified in the order are to be varied under section 17B(4) of the Mental Health Act 1983, to provide that person with details of any variation which relates to contact with the victim or his family;

(e)if a community treatment order in respect of the patient is to cease to be in force, to inform that person of the date on which it is to cease to be in force;

(f)if, following the examination of the patient under section 20 of the Mental Health Act 1983, the authority for the patient's detention is not to be renewed, to inform that person of the date on which the authority is to expire;

(g)to provide that person with such other information as the managers of the relevant hospital consider appropriate in all the circumstances of the case.

(8)The relevant hospital has the meaning given by section 36A(6).]

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Amendments (Textual)

F96Ss. 44A, 44B inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 48, 56(1), Sch. 6 para. 15 (as amended by S.I. 2008/912, Sch. 1 para. 24(2)(e)) (with s. 50(8)-(13)); S.I. 2008/1900, arts. 1(1), 2(o) (with art. 3, Sch.)

[F9944BRemoval of restrictionE+W

(1)This section applies if, in a case where section 42 applies—

(a)the transfer direction in respect of the patient was given with a restriction direction, and

(b)the restriction direction ceases to be in force while the transfer direction continues in force.

(2)Subsection (3) applies if a person who appears to the relevant probation body to be the victim of the offence or to act for the victim of the offence—

(a)when his wishes were ascertained under section 42(2), expressed a wish to make representations about a matter specified in section 42(3) or to receive the information specified in section 42(4), or

(b)has subsequently informed the relevant probation body that he wishes to make representations about such a matter or to receive that information.

(3)The relevant probation body must take all reasonable steps—

(a)to notify the managers of the relevant hospital of an address at which that person may be contacted;

(b)to notify that person of the name and address of the hospital.

(4)While the transfer direction continues in force, the patient is to be regarded as a patient in respect of whom a transfer direction was given without a restriction direction; and sections 43A and 44A are to apply in relation to him accordingly.

(5)The relevant hospital has the meaning given in section 36A(6).

(6)The relevant probation body has the meaning given in section 43(8).]

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Amendments (Textual)

InterpretationE+W

45[F100Interpretation: sections 35 to 44B]E+W

(1)In sections 35 to [F10144B]

  • [F102community treatment order” has the meaning given in section 17A of the Mental Health Act 1983;

  • court” does not include [F103the Court Martial or the Court Martial Appeal Court];

  • hospital direction” has the meaning given in section 45A(3)(a) of the Mental Health Act 1983 (c. 20);

  • hospital order” has the meaning given in section 37(4) of that Act;

  • licence condition” means a condition in a licence;

  • limitation direction” has the meaning given in section 45A(3)(b) of the Mental Health Act 1983;

  • local probation board” means a local probation board established under section 4 of the Criminal Justice and Court Services Act 2000 (c. 43);

  • [F104the managers” has the meaning given in section 145 of the Mental Health Act 1983;

  • relevant sentence” means any of these—

    (a)

    a sentence of imprisonment for a term of 12 months or more;

    (b)

    a sentence of detention during Her Majesty’s pleasure;

    (c)

    a sentence of detention for a period of 12 months or more under section 91 of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (offenders under 18 convicted of certain serious offences);

    (d)

    a detention and training order for a term of 12 months or more;

  • [F105responsible clinician” means the responsible clinician for the purposes of Part 3 of the Mental Health Act 1983;

  • [F106responsible hospital” has the meaning given in section 17A of the Mental Health Act 1983;

  • restriction direction” has the meaning given in section 49(2) of the Mental Health Act 1983;

  • restriction order” has the meaning given in section 41(1) of that Act;

  • supervision requirements” means requirements specified in a notice under section 103(6) of the Powers of Criminal Courts (Sentencing) Act 2000;

  • transfer direction” has the meaning given in section 47(1) of the Mental Health Act 1983.

(2)For the purposes of sections 35 to [F10744B], an offence is a sexual or violent offence if it is any of these—

(a)murder or an offence specified in Schedule 15 to the Criminal Justice Act 2003 (c. 44);

(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. 42));

(c)an offence against a child within the meaning of Part 2 of the Criminal Justice and Court Services Act 2000.

[F108(3)A reference in sections 35 to 44B to a place in which a person is detained includes a reference to a place in which he is liable to be detained under the Mental Health Act 1983.

(4)For the purposes of section 32(3) of that Act (regulations as to delegation of managers' functions, etc.) as applied by Parts 1 and 2 of Schedule 1 to that Act, a function conferred on the managers of a hospital under sections 35 to 44B of this Act is to be treated as a function of theirs under Part 3 of that Act.]]]]]

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Amendments (Textual)

F102S. 45(1): definition of "community treatment order" inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 48, 56(1), Sch. 6 para. 16(2)(b) (with s. 50(8)-(13)); S.I. 2008/1900, arts. 1(1), 2(o) (with art. 3, Sch.)

F103Words in s. 45(1) substituted (28.3.2009 for certain purposes, otherwise 31.10.2009) by Armed Forces Act 2006 (c. 52), ss. 378(1), 383(2), Sch. 16 para. 239; S.I. 2009/812, art. 3; S.I. 2009/ 1167, {art. 4} (and see transitional provisions in S.I. 2009/1059)

F104S. 45(1): definition of "the managers" inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 48, 56(1), Sch. 6 para. 16(2)(b) (with s. 50(8)-(13)); S.I. 2008/1900, arts. 1(1), 2(o) (with art. 3, Sch.)

F105S. 45(1): definition of "responsible clinician" inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 48, 56(1), Sch. 6 para. 16(2)(b) (with s. 50(8)-(13)); S.I. 2008/1900, arts. 1(1), 2(o) (with art. 3, Sch.)

F106S. 45(1): definition of "responsible hospital" inserted (3.11.2008) by Mental Health Act 2007 (c. 12), ss. 48, 56(1), Sch. 6 para. 16(2)(b) (with s. 50(8)-(13)); S.I. 2008/1900, arts. 1(1), 2(o) (with art. 3, Sch.)

Northern IrelandN.I.

46Victims of mentally disordered personsN.I.

(1)The Justice (Northern Ireland) Act 2002 (c. 26) is amended as follows.

(2)After section 69 (views on temporary release) insert—

69AInformation about discharge and leave of absence of mentally disordered persons

(1)The Secretary of State must make a scheme requiring the Secretary of State to make available to persons falling within subsection (2) information about—

(a)the discharge from hospital of, or

(b)the grant of leave of absence from hospital to,

persons in respect of whom relevant determinations have been made.

(2)The persons referred to in subsection (1) are victims of the offences in respect of which the determinations were made who wish to receive the information.

(3)A relevant determination is made in respect of a person if—

(a)a hospital order with a restriction order is made in respect of him by a court dealing with him for an offence, or

(b)a transfer direction and a restriction direction are given in respect of him while he is serving a sentence of imprisonment in respect of an offence.

(4)The Secretary of State may from time to time make a new scheme or alterations to a scheme.

(5)The information to be made available under a scheme must include information as to any relevant conditions to which a person in respect of whom a relevant determination has been made is to be subject in the event of—

(a)his discharge from hospital, or

(b)the grant of leave of absence from hospital to him.

(6)A condition is relevant for the purposes of subsection (5) if it appears to the Secretary of State that it might affect a victim of an offence in respect of which the determination was made.

(7)A scheme may require the Secretary of State to take all reasonable steps to ascertain whether a person who appears to him to be the victim of an offence in respect of which a relevant determination has been made wishes to make representations about the matters specified in subsection (8).

(8)The matters are—

(a)whether the person in respect of whom the determination has been made should be subject to any conditions in the event of his discharge from hospital or the grant of leave of absence from hospital to him;

(b)if so, what conditions.

(9)A scheme that includes provision such as is mentioned in subsection (7) must specify how the representations are to be made.

(10)A scheme may require other information in relation to the discharge of, or the grant of leave of absence to, persons in respect of whom relevant determinations are made to be made available under the scheme.

(11)The other information may include, in cases of a description specified by the scheme or in which the Secretary of State considers it appropriate, the date on which it is anticipated that a person in respect of whom a relevant determination has been made will be discharged or granted leave of absence from hospital.

(12)Subsections (5) to (8) of section 68 apply in relation to a scheme made under this section as they apply in relation to a scheme made under that section.

(13)A scheme may make different provision in relation to different descriptions of persons in respect of whom a relevant determination is made.

69BViews on leave of absence

(1)If a person who is the victim of an offence in respect of which a relevant determination has been made makes to the Secretary of State representations falling within subsection (2) the Secretary of State has the obligations specified in subsection (3).

(2)Representations fall within this subsection if they are to the effect that the grant of leave of absence to the person in respect of whom the determination has been made would threaten the safety, or otherwise adversely affect the well-being, of—

(a)the actual victim of the offence in respect of which the determination was made, or

(b)a person who is regarded for the purposes of a scheme under section 69A as a victim of that offence by virtue of section 68(5) (as applied by section 69A(12)).

(3)The Secretary of State must—

(a)have regard to the representations in deciding whether he should give his consent to leave of absence being granted, and

(b)inform the victim of any such decision.

(4)Section 69A(3) (relevant determination) applies for the purposes of this section.

(3)In section 70 (supplementary), after subsection (3) insert—

(4)In sections 68 and 69 references to a person serving a sentence of imprisonment in Northern Ireland include a person detained in hospital pursuant to a transfer direction and a restriction direction.

(5)In subsection (4) and section 69A(3)—

restriction direction” has the meaning given in Article 55(2) of the Mental Health (Northern Ireland) Order 1986;

transfer direction” has the meaning given in Article 53(2) of that Order.

(6)In section 69A(3)—

hospital order” has the meaning given in Article 44(1) of the Mental Health (Northern Ireland) Order 1986;

restriction order” has the meaning given in Article 47(1) of that Order;

sentence of imprisonment” has the meaning given in Article 53(5) of that Order.

(7)In sections 69A and 69B “leave of absence” means leave of absence under Article 15 of the Mental Health (Northern Ireland) Order 1986.

(4)In section 90(5) (statutory rules), in paragraph (b) after “section 68” insert “ or 69A ”.

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