House of Commons - Explanatory Note
Justice (Northern Ireland) Bill - continued          House of Commons

back to previous text


182.     This Schedule deals with operational issues, such as appointment, tenure and staffing. Paragraph 4 requires the Chief Inspector to send a report each financial year to the Secretary of State, who is required to publish it.

183.     Paragraph 7 enables the Chief Inspector of Criminal Justice to delegate any of his functions to a member of his staff, to members of the United Kingdom or Northern Ireland civil service who are assisting him or to Her Majesty's Inspector of Constabulary, Her Majesty's Chief Inspector of Prisons or Her Majesty's Chief Inspector of the Crown Prosecution Service.

184.     Paragraph 8 deals with the relationship between the Chief Inspector and those appointed under section 41(1) of the Police (Northern Ireland) Act 1998 as inspectors of constabulary for Northern Ireland (the "HMIC"). The effect is that if the Chief Inspector considers that any particular inspection should be carried out in relation to the Police Service of Northern Ireland or the Police Service of Northern Ireland Reserve he must give the HMIC the option of carrying out that inspection. If the HMIC do not wish to carry out the inspection, the Chief Inspector may do so, but only after consulting the Secretary of State with a view to obtaining his approval for the inspection. If the Secretary of State did not give his approval, it would still be open to the Chief Inspector to go ahead and carry out the inspection.

185.     Paragraph 11 allows the Chief Inspector to do anything which a private person could do, apart from borrow money, if he considers it appropriate for facilitating, or incidental or conducive to, the exercise of his functions. In particular, this would allow him to enter into contracts and other arrangements.


186.     Paragraph 1(4) sets out the grounds for dismissal of a Commissioner by the Secretary of State, which include a conviction for a criminal offence and bankruptcy. Paragraph 2 provides for a person holding judicial office to be appointed as a Commissioner without relinquishing that office. Except for a person holding full-time judicial office, paragraph 3 makes provision for payment of Commissioners' remuneration, allowances and pension provisions.

187.     Paragraph 4 requires the Secretary of State to approve the Commission's staffing complement, their salary and terms of employment. It enables the Commission to perform its functions by arranging to engage the assistance of members of the Civil Service and the Northern Ireland Court Service. Paragraphs 4(3) and 4(4) deal with superannuation provisions for staff in the employ of the Commission.

188.     Paragraph 5 enables the Secretary of State to make grants to the Commission. Paragraph 6 sets out requirements on the Commission in terms of financial accountability.


189.     This Schedule adds Schedule 1A to the 1998 Order. This makes provision dealing with the consequences of a breach of a reparation order, community responsibility order or youth conference order (each of which is referred to as a "relevant order" in the Schedule) and the revocation and amendment of a relevant order.

190.     If a person in respect of whom a relevant order is in force breaches that order there are two possible ways the matter could be dealt with by the courts, following an application by the responsible officer:

  • it could impose an additional order as punishment for the breach (paragraph 3); or

  • it could revoke the relevant order and re-sentence the offender for the original offence (paragraph 4).

191.     When dealing with an offender under paragraph 3 or 4, the court must take into account the extent to which the offender has complied with the relevant order (paragraph 2(3)).

192.     Paragraph 3 deals with the imposition of an additional order by the court for breach of the relevant order. The application must be brought to the youth court. Sub-paragraph (1) sets out what additional orders may be imposed. If such an order is made the offender is then subject to both the original relevant order and the new order imposed by the court as punishment for the breach. This paragraph makes certain modifications to the basic provisions relating to the orders which may be imposed for breach to ensure they work properly in this context. In relation to community service orders, sub-paragraph (5) provides that there is to be no minimum period for such an order when imposed for breach and a maximum of 60 hours. This is in contrast to the position where a community service order is imposed for an offence in which case it must be of at least 40 hours and no more than 240 hours (Article 13(2) of the 1996 Order).

193.     Paragraph 4 deals with the situation where the court thinks an additional order is not appropriate punishment for the breach of the relevant order and wants instead to revoke it and re-sentence the offender for the original offence. Sub-paragraph (6) of paragraph 4 allows a court when re-sentencing an offender who has persistently failed to comply with a requirement to assume that the offender has not consented to the relevant order. This provision makes it clear that, where an offender breaches a relevant order, the court can rely on Article 19(3) of the 1996 Order and impose a custodial sentence despite Article 19(2) of that Order. Article 19(2) provides that a court may only impose a custodial sentence for an offence where it is of the opinion that the offence was so serious that only such a sentence was justified or, in the case of a violent or sexual offence, that only a custodial sentence would be adequate to protect the public from serious harm. Article 19(3) provides that nothing in paragraph 2 of that Article prevents a court from passing a custodial sentence where the offender refuses to give his consent to a community sentence proposed by the court and which requires his consent.

194.     Paragraph 5 enables the responsible officer or the offender to apply to the court for the revocation or amendment of the relevant order or for an extension of the time within which the relevant order must be complied with. The powers provided by this paragraph are not dependent on the offender being in breach of the relevant order, but could be exercised in those circumstances instead of the specific powers to deal with breach discussed above.

195.     Paragraph 6 makes provision for the situation where the offender in respect of whom a relevant order is in force is convicted of another offence. This paragraph ensures that the courts have the power to make any order in respect of the relevant order necessary to take account of the subsequent conviction. The powers are the same as those conferred on the court under paragraph 5 of the Schedule - to revoke or vary the relevant order or extend the period within which it must be complied with.

196.     Paragraph 8 provides that the offender must be in court before the court can make an order under paragraphs 3, 4, 5 or 6 in respect of him, subject to the minor exceptions in sub-paragraph (8). It sets out a procedure whereby the court can secure the presence of the offender in court. The reference in sub-paragraph (6)(b) to the place "to which it [the court] would remand him if making an order under Article 13" is a reference to the place of remand provided for by Article 13 of the 1998 Order for children. Article 13 is amended by paragraph 66 of Schedule 12.

197.      A right of appeal against decisions under this Schedule is provided by the amendments to Article 140 of the Magistrates' Court (Northern Ireland) Order 1981 (appeal from magistrates' court) (see paragraphs 29 to 31 of Schedule 12) and to section 9 of the Criminal Appeal (Northern Ireland) Act 1980 (appeal from Crown Court) (see paragraph 17 of Schedule 12).


198.     These amendments provide that a person who is under 18 is treated as a child for the purposes of criminal proceedings against him.


199.     This Schedule makes a number of minor and consequential amendments.

200.     Paragraphs 1, 2 and 6 of this Schedule replicate amendments made by the Prosecution of Offences (Northern Ireland) Order 1972, which is repealed by this Bill.

201.     Paragraphs 3, 4 and 5 make minor amendments to the County Courts Act (Northern Ireland) 1959, including clarifying that one or more judges may be assigned to each county court division. Paragraph 4 also reflects the current position in Belfast where four judges are assigned to Belfast, one of whom is appointed Recorder of Belfast. Paragraph 5 is consequential on the repeal of section 105(3) of that Act (which makes provision about judicial oaths, now provided for by clause 21).

202.     Paragraphs 7, 8 and 9 make amendments to the Law Commission Act 1965 consequential on the establishment of an independent Northern Ireland Law Commission.

203.     Paragraphs 10, 11 and 12 make minor amendments to the Administration of Justice Act 1973, including provision for the salaries of judges of the Supreme Court in Northern Ireland to be paid out of the Consolidated Fund of Northern Ireland. Paragraph 12 provides that the power of the Lord Chancellor to declare a higher judicial office vacant where the holder of that office is so incapacitated that he cannot resign it shall not be exercisable in respect of judges to whom section 7 applies.

204.     Paragraph 13 amends the manner in which a judge of the Supreme Court in Northern Ireland may resign, by providing that the Lord Chief Justice or a Lord Justice of Appeal may tender a letter of resignation to her Majesty, and a judge of the High Court may write to the First Minister and deputy First Minister.

205.     Paragraph 15 amends the Criminal Appeal (Northern Ireland) Act 1980 (c.47) to provide for appeals against sentence following proceedings for breach of a youth conference order (see Schedule 10).

206.     Paragraphs 16 to 28 amend the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 ("the 1981 Order"). Paragraph 17 is consequential on the repeal of paragraph 5 of Schedule 1 to the 1981 Order (which provided for legal aid for proceedings before a coroner). Paragraph 18 provides that advice and assistance under the 1981 Order will not be available for proceedings in respect of which legal aid is available under a direction given by the Lord Chancellor (provided for by clause 75). This replicates the existing restriction on the availability of advice and assistance when a civil aid certificate is in force.

207.     Paragraphs 19 and 20 are consequential on the repeal of Article 10(6) of the 1981 Order (position of providers and parties where services are given by way of legal aid) and the re-enactment of the same provisions (provided for by paragraph 20)). Paragraph 21 amends the effect of the indemnity granted in relation to contributions to include contributions arising from an exceptional grant of legal aid (provided for by clause 75).

208.     Paragraphs 24 to 26 make amendments consequential on the provision of free legal aid for diversionary youth conferences (see clause 61).

209.     Paragraph 40 amends the definition of "place of safety" in the Mental Health (Northern Ireland) Order 1986 to include any young offenders centre and any secure accommodation provided by the Health and Social Services Boards in Northern Ireland.

210.     Paragraph 41 amends Schedule 3 to the Criminal Justice Act 1988 to allow the Director of Public Prosecutions for Northern Ireland (instead of the Attorney General for Northern Ireland) to make an appeal where it is thought that a sentence handed down by a court is unduly lenient (see also clause 41(5)).

211.     Paragraphs 42 to 46 amend the Police and Criminal Evidence (Northern Ireland) Order 1989 (the "1989 Order"). Paragraph 43 adds definitions of "juvenile justice centre", "secure accommodation" and "young offenders centre", which are referred to in the substantive amendments made by paragraphs 24 and 25 to the 1989 Order. Article 19(1)(d) of that Order provides that a constable may enter premises without a search warrant for the purposes of recapturing a person who is unlawfully at large from specified custodial institutions. Paragraph 44 adds secure accommodation (used for detaining a child who is subject to a custody care order) to that list. Article 39 of the 1989 Order provides for the detention after arrest of juveniles in a place of safety. Paragraph 46 extends the definition of "place of safety" to include young offenders centres and secure accommodation.

212.     Paragraph 53 amends Schedule 2 of the Juries Order 1996 to include court security officers, the Director and Deputy Director of the Public Prosecution Service and the Chief Inspector of Criminal Justice and his staff within the list of persons who are ineligible for jury service.

213.     Paragraph 55(2) provides that reparation orders and community responsibility orders are added to the definition of a "community order" for the purposes of the Criminal Justice (Northern Ireland) Order 1996 (the "1996 Order"). Sub-paragraph (4) provides that an order sending an offender to secure accommodation is included in the definition of "custodial sentence".

214.     Paragraph 56 amends Article 9(3) of the 1996 Order (procedural requirements for community orders) to include "reparation order" and "community responsibility order" so that those provisions apply to these new orders. As a consequence of the creation of custody care orders (provided for by clause 57) the definition of orders on which restrictions are imposed by Article 18(1) is extended to include a custody care order (paragraph 57).

215.     Paragraph 58 adds references to a youth conference order to Article 19(3) of the 1996 Order. This has the effect that a court is not prevented from passing a custodial sentence if the offender refuses to consent to a youth conference order.

216.     Paragraph 61 amends section 42(3) of the Police (Northern Ireland) Act 1998 to include the Chief Inspector of Criminal Justice in the list of those who must receive a copy of a report by Her Majesty's Inspector of Constabulary on the Police Service of Northern Ireland.

217.     The amendments set out in paragraph 62 of the Schedule are consequent on making the role and functions of the Advocate General for Northern Ireland an "excepted" matter (see commentary on clause 28 above). They exclude the Advocate General from the list of justice matters in the reserved field (as set out in Schedule 3 to the Northern Ireland Act 1998).

218.     Paragraph 64 adds a number of definitions to the Criminal Justice (Children) (Northern Ireland) Order 1998 (the "1998 Order") consequential on the provision made by Part 4 of the Bill.

219.     Paragraph 65 amends Article 8(3) and (4) of the 1998 Order to provide that if a child under 14 cannot be released before he appears in court, he must be held in secure accommodation rather than in a juvenile justice centre.

220.     Paragraph 66 amends Article 13 (remand in custody) of the 1998 Order. Children under 14 must be held in secure accommodation. Those who are 14 but not yet 17 must be held in a juvenile justice centre, unless, in the case of a child who has attained the age of 15, the court considers he is likely to injure himself or someone else, in which case he must be held in a young offenders centre. Those children who have attained the age of 17 must be held in a young offenders centre unless two conditions are met. These are that, when he was first remanded in custody, he was not yet 17 years and 6 months old and that he has not had a custodial sentence passed on him in the previous two years. If these conditions are met the court must send him to a juvenile justice centre if it thinks that such an order is in the child's best interest.

221.     Paragraph 67 adds references to youth conference orders to Article 30(3) of the 1998 Order. This ensures that the youth court retains jurisdiction to deal with breach of such orders, or to amend or discharge them, even though the offender has attained the age of 18 since the order was made.

222.     Paragraph 68 amends Article 37(4) (requirements of attendance centre orders) of the 1998 Order. This brings the language of the 1998 Order into line with Article 14 of the 1996 Order.

223.     Paragraph 69 amends Article 39(1) of the 1998 Order to provide, firstly, that juvenile justice centre orders cannot be made in respect of an offender who has not attained the age of 14 (for such offenders a custody care order is available) and, secondly, to clarify for which offences such orders are not appropriate.

224.     Paragraph 70 amends Article 41 of the 1998 Order. It omits reference to breach of juvenile justice centre orders by children under 14 as they will no longer be subject to such orders. It also provides that where a court orders an offender to be detained for breach of a juvenile justice centre order he will be held in a juvenile justice centre if he has not yet attained the age of 17 and a young offenders centre if he has, unless certain conditions are satisfied. Those conditions are that the offender is 17 but will not be 18 within the next 30 days (the maximum period for which he can be detained for breach) and that he has not had a custodial sentence (other than the juvenile justice centre order in respect of which he is in breach) in the previous two years. If these conditions are met and the court thinks it is in the child's best interest to be detained in a juvenile justice centre, he will be detained in such a place.

225.     Paragraph 71 amends Article 41(1) of the 1998 Order to remove the obligation on a court to revoke a juvenile justice centre order on subsequent conviction unless it intends to impose a further custodial sentence. This corrects an anomaly in the 1998 Order where, if the child was in custody, the court had to revoke that sentence even if only to pass a non-custodial sentence.

226.     Paragraph 72 amends Article 56(5)(a) of the 1998 Order to provide that the Secretary of State may by order provide that the functions of the Juvenile Justice Board shall include power to make and give effect to schemes for children who are subject to reparation orders, community responsibility orders and youth conference plans.

227.     Paragraphs 73 to 76 amend the Northern Ireland Act 2000. During any period in which section 1 of that Act is in force (when devolved government in Northern Ireland is suspended) no person may continue to hold office or be appointed as Attorney General for Northern Ireland. On restoration, the Attorney General who held office immediately before suspension would resume office, unless his term of appointment had expired, in which case a new Attorney General would be appointed in accordance with clause 23.

228.     Paragraph 78 amends the Regulatory Reform Act 2001 to require consultation with the Northern Ireland Law Commission before an order under section 1 of that Act can be made.


229.     This Schedule sets out the repeals and revocations of other legislation which are needed as a result of the Bill.


230.     The Bill will entail significant additional expenditure over the next 3 years to fund initiatives arising from implementation of the Criminal Justice Review recommendations. The total additional cost is estimated to be around £30 million and the main areas of expenditure in each part of the Bill are detailed below. Over the same period there should be savings to be set against the costs of, for example, the new prosecution service from the removal of prosecution functions from the police.

231.     In Part 1, the cost of setting up the office of lay magistrate will be around £2.2 million. The Judicial Appointments Commission will only be established after devolution of justice functions and will cost some £1 million annually. In Part 2 there will be significant expenditure as a result of establishing a new prosecution service. This will be based on the present DPP's office which will double in size at a cost of about £13 million per annum. The annual cost of maintaining the local Attorney General and his staff after devolution will be approximately £0.5 million. Part 3 covers the establishment of a Law Commission and Chief Inspector of Criminal Justice which will cost £0.75 million and £0.55 million respectively. Part 4 involves the introduction of three new youth justice orders which together will cost about £0.65 million each year. The establishment of a youth conference agency is estimated at around £3.5 million each year and the inclusion of 17 year olds in the youth court will necessitate changes to the youth court amounting to £1.2 million per annum. The most significant cost in Part 5 is the establishment of statutory community safety partnerships which it is estimated will cost just under £6 million each year.


232.     The creation of the new public prosecution service will require the recruitment of significant numbers of additional staff and it is anticipated that the existing Office of the Director of Public Prosecutions will double in size. Other changes provided for in the Bill will largely involve movements of staff within the public sector.


233.     This Bill has no regulatory impact and therefore no Regulatory Impact Assessment is required.


234.     Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement, before second reading, about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The Secretary of State for Northern Ireland has made the following statement:

In my view the provisions of the Justice (Northern Ireland) Bill are compatible with the Convention rights.


235.     The provisions of the Bill will be brought into force by order made by the Secretary of State (see clause 85).

previous section contents  
House of Commons home page Houses of Parliament home page House of Lords home page search page enquiries ordering index

© Parliamentary copyright 2001
Prepared: 19 December 2001