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

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Clause 11: Bail to which Part II of the Criminal Justice (Northern Ireland) Order 2003 applies

33.     Subsection (1) of this clause amends the provisions on bail in respect of non-

scheduled cases contained in the Criminal Justice (Northern Ireland) Order 2003 (SI 2003/1247 (N.I. 13)) ("the 2003 Order"). Subsection (2) extends the definition of surrender to custody to include surrender to a prison governor in order to cover those released on compassionate bail who are not currently covered by the 2003 Order.

34.     Subsection (3) amends Article 5 of the 2003 Order (offence of absconding by person released on bail) so that the offences can be tried both summarily and on indictment (at the moment the offences are summary only). This will bring the treatment of these offences in line with the new offences being created in relation to scheduled offences by paragraph 1 of Schedule 2. The penalty for conviction on indictment will be up to 3 years imprisonment or a fine or both. The penalty on summary conviction will be up to 12 months imprisonment or a fine or both. Subsection (4) provides that the power of arrest without warrant in Article 6(3) of the 2003 Order will no longer apply in relation to those released on bail who are under a duty to surrender to the custody of a police station. That subsection also includes a new sub-paragraph in Article 6 to make exceptions to the timetable for bringing a person before a court following his arrest under Article 6(3) if he is in hospital and not well enough to attend court. Such an exception already exists in the similar provisions in Article 47(5) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341 (N.I.12)).

35.     Under Article 29(1) of the Magistrates' Courts (Northern Ireland) Order 1981 (SI 1981/1675 (N.I. 26)) if a summary offence is punishable with more than six months imprisonment a person is normally entitled to elect for trial by jury. However, this right is subject to specific exceptions as set out in that Article. Subsection (5) adds Article 5(1) and (2) to the list of exceptions because the summary penalty for those offences has been increased to 12 months. Subsection (6) provides that the offence of absconding from bail and the penalties available under subsection (3) will only apply to offences committed after the commencement of subsection (3). This is to avoid any retrospective application of the legislation.

Clause 12: Transfer of Prisoners

36.     The Review of Safety at HMP Maghaberry that was submitted to the Secretary of State for Northern Ireland on 29th August 2003 concluded that separation of prisoners by paramilitary affiliation was necessary in the interests of safety. A copy of this report can be found on the Northern Ireland Office's website (http://www.nio.gov.uk/steelerep.pdf). The Review recommended that to prevent slippage from the proposed separated regime for paramilitary prisoners to a segregated regime, such as that which operated in HMP Maze and gave prisoners control of wings, prisoners should be subject to punishment for misbehaviour, and that removal to another jurisdiction might be considered in serious cases (Appendix A, paragraph 7).

37.     Clause 12 amends Schedule 1 to the Crime (Sentences) Act 1997(c.43), which currently provides for the transfer of prisoners from Northern Ireland to another part of the United Kingdom with their consent. Under Schedule 1 a prisoner may be transferred as a result of his own application or for the purposes of attending trial or for other judicial purposes. This clause provides that if it appears to the Secretary of State that in the interests of maintaining security or good order in any prison in Northern Ireland a remand or sentenced prisoner should be transferred to another establishment in England and Wales, he may make an order to that effect (i.e. without the prisoner's consent).

38.     Subsection (4) provides that any such transfer will be made and remain on a restricted basis and may be subject to such other conditions, if any, as the Secretary of State may think fit to impose. A sentenced prisoner who is subject to a restricted transfer is treated for the purposes of his detention under and release from his sentence as if he were still subject to the law of the place from which he was transferred (paragraph 6(2)(b) of Schedule 1 to the Crime (Sentences) Act 1997). The amendments made by subsections (3), (5) and (6) are consequential.

Clause 13: Amendment of section 103 of the Terrorism Act 2000

39.     Section 103 of the Terrorism Act 2000 makes it an offence to collect, record or possess information about certain categories of people, which is likely to be useful for terrorism. One of these categories is "full-time employees of the prison service".

40.     Lord Carlisle, who was appointed in 2001 as the independent reviewer of the Terrorism Act 2000, in his second annual report on Part VII of the Act recommended that Section 103 be extended to include part-time employees of the Prison Service. This clause amends section 103(2)(e) to remove the distinction between full and part-time workers and to ensure that those who work in the prison service but are employed by other government departments are also protected by the offence.

Clause 16: Right of barrister to enter into contract for the provision of his services

41.     Barristers in England and Wales are not prevented by law from entering into a contract for the provision of services. This clause brings the situation in Northern Ireland into line with the situation in England and Wales by abolishing any rule of law which prevents a barrister in Northern Ireland from entering into a contract for the provision of his services. The General Council of the Bar of Northern Ireland may still make rules which prohibit or restrict barristers from entering into contracts.

Clause 20: Statutory Rules

42.     This clause provides for orders or regulations to be made by statutory rule. Subsection (2) provides that any order made under clause 7(5) (amending the list of organisations to which guidance will apply on human rights standards) will be subject to the affirmative resolution procedure. Under subsection (3), any order made under clause 7(3)(c) or 10(4) and any regulations made under paragraph 1(4) or 6(1) of Schedule 3 (Court Security Officers) will be subject to the negative resolution procedure.

SCHEDULE 1: TRANSFER TO LORD CHANCELLOR OF FUNCTIONS RELATING TO NORTHERN IRELAND JUDICIAL APPOINTMENTS COMMISSION

43.     This Schedule provides for the transfer of responsibility for the Judicial Appointments Commission from the First and Deputy First Ministers to the Lord Chancellor by amending the 2002 Act. There are also a number of consequential amendments on, for example, superannuation and the presentation of accounts. The Bill originally conferred the functions on the Secretary of State as the Government has separately indicated its intention to abolish the office of the Lord Chancellor. The Secretary of State for Constitutional Affairs will inherit many of the Lord Chancellor's existing functions. However at Committee stage the Government accepted that it would be better not to pre-empt the forthcoming legislation on constitutional reform.

SCHEDULE 2: BAIL UNDER TERRORISM ACT 2000

44.     Schedule 2 is concerned with those charged with a scheduled offence and granted bail under section 67 of the 2000 Act. It creates two offences in relation to absconding by persons on bail; provides for powers of arrest in relation to those who abscond or break their conditions of bail; provides the procedures to be followed in relation to those arrested without warrant; and makes provisions for the circumstances in which offences are certified as suitable for summary trial. The provisions have been created because the enforcement of bail granted under section 67 of the 2000 Act is currently out of kilter with the enforcement of bail granted in respect of non-scheduled offences as set out in the 2003 Order. As a result those charged with scheduled offences were being treated more leniently.

45.     Paragraphs 1(1) creates an offence of failure to surrender to custody without reasonable cause (the duty to surrender to custody is defined in clause 11(3)). Paragraph 1(3) creates a further offence of failure to surrender to custody as soon as reasonably practicable having previously failed to surrender to custody with reasonable cause. Both offences are triable either way. Summary conviction can attract a penalty of imprisonment of 12 months, a fine not exceeding the statutory maximum, or both. Conviction on indictment can attract a penalty of three years imprisonment, a fine, or both. Sub-paragraph (4) adds these offences to the list of exceptions in Article 29(1) of the Magistrates' Court (Northern Ireland) Order 1981 (SI 1981/1675 (N.I. 26)). As a result a person cannot elect for trial by jury in relation to the summary offence.

46.     Paragraphs 2(1) to (3) provide the court with a power to issue a warrant for the arrest of a person admitted to bail who fails to surrender to its custody at the appointed time; or who, having surrendered to its custody then absents himself from the court. Sub-paragraph (4) provides a constable with a power of arrest without warrant in respect of any person under a duty to surrender to the custody of a court if he is satisfied that one of the circumstances in paragraph 2(4) exists. Paragraphs 3(1) provides that a person so arrested must be brought before a judge as soon as is practicable, and no later than the day following arrest excluding Sundays, Good Friday and Christmas Day. This time limit has been designed to ensure that the person arrested has their arrest reviewed promptly and if appropriate he can be admitted to bail as quickly as possible. Under paragraph 3(2) the time limit will not apply if a person is in hospital and unable to attend to court. This is in line with similar provisions in the Police and Criminal Evidence (Northern Ireland) Order 1989 and to be included in the 2003 Order.

47.     The person arrested under paragraph 2(4) must be brought before a judge of the High Court or the Court of Appeal (see paragraph 3(1)). This is because they are competent to grant bail under section 67(2) of the 2000 Act and as the original bail will have been granted under section 67 of the 2000 Act any bail granted under paragraph 3 must also be bail granted under section 67. Under paragraph 3(3) the judge must conduct a two stage process. Firstly, he must decide if there was good reason to arrest the individual. If there was not good reason the person must be automatically released on bail. As there will be no application for bail as such and no exercise of discretion by the judge in relation to bail the bail is deemed to be bail granted under section 67 (this is provided for in sub-paragraph 3(4)). If there was a good reason for the arrest then the judge must re-consider the question of bail under section 67. The procedure has been developed to be very similar to that in Article 6 of the 2003 Order.

48.     Paragraph 4 provides that any person in respect of whom a certificate of suitability for summary trial has been issued for all the charges faced is treated as if he had been granted bail under the 2003 Order. This is because if the question of bail in relation to such a person were to be reconsidered they could no longer be granted bail under section 67(1)(b). It needs to be clear that in such circumstances the person is to be treated as if they had been granted bail in relation to a non-scheduled offence.

49.     Paragraph 5 provides that the offence of absconding from bail and the powers of arrest with and without warrant will apply to those on bail before and after the legislation is commenced. For those already on bail at that time, the powers only apply in respect of any act, or failure, or issue of a certificate for summary trial, which occurs after the law, is commenced. This is to avoid the provisions having any retrospective effect.

SCHEDULE 3: COURT SECURITY

50.     This Schedule (as inserted by clause 15) builds on provisions made in the 2002 Act in relation to court security. Sections 79 to 81 of the 2002 Act have been re-enacted with amendments and supplemented with a number of new provisions.

51.     Paragraph 1(1) replicates the duty in the 2002 Act on the Northern Ireland Court Service to take all reasonable steps to provide security at relevant buildings. "Relevant buildings" is extended to include not only court houses but also buildings in which certain tribunals and Masters sit (sub-paragraph (6)). Paragraph 1(3) replicates the existing provision that court security officers may be either members of the Court Service's own staff, designated as such, or employees of other organisations with which the Court Service has entered into arrangements for the provision of court security officers under section 69 of the Judicature (Northern Ireland) Act 1978 (c. 23).

52.     Paragraph 1(4) is a new provision that enables the Lord Chancellor to make regulations as to the training to be completed and conditions to be met before a person may be designated or employed as a court security officer.

53.     Sub-paragraphs (7) and (8) make new provision for court security officers to be employed in relevant parts of buildings that are not solely devoted to court business (for example the building in which the Social Security Commissioners sit). Paragraph 2 replicates the existing provision that court security officers are to have the following powers to search and remove people from relevant buildings:

  • power to search any person who is in, or seeking to enter, a relevant building (paragraph 2(1)(a));

  • power to search any article in possession of a person who is in, or seeking to enter, a relevant building (paragraph 2(1)(b));

  • power to exclude or remove from a relevant building any person who refuses to permit a search (paragraph 3 (1)(a))

  • power to exclude or remove from a relevant building a person who will not surrender an article when asked to do so (paragraph 3(1)(b));

  • power to restrain, exclude or remove any person from a relevant building if it is reasonably necessary to do so for the purposes of enabling the business of any court or office-holder to be carried out without interference or delay, maintaining order, securing the safety of the person in the building (paragraph 3(3)).

The court security officers' powers to exclude, remove and restrain include the power to use reasonable force where necessary (paragraph 3(4)).

54.     Paragraph 4 provides court security officers with the following new powers in relation to the seizure of goods:

  • power to ask a person to surrender an article (paragraph 4 (1));

  • power to seize an article if the person asked to surrender that article refuses to do so (paragraph 4 (2)).

  • Under paragraph 4(3) the grounds on which a court security officer may seize or require surrender of articles are that the article may:

      (a) jeopardise the maintenance of order in the building;

      (b) put the safety of any person in the building at risk; or

      (c) be evidence of, or in relation to, an offence.

55.      Paragraph 5 is a new provision allowing an article surrendered or seized to be retained by the court security officer, only until such time as the owner is leaving the court building, unless the court security officer reasonably believes the article to be evidence of, or in relation to, an offence. In such a case the article may be retained for a maximum of 24 hours to enable the security officer to draw the article to the attention of a police officer.

56.      Paragraph 6 provides the Lord Chancellor with a new power to make regulations about the retention of articles which are surrendered to, or seized by, a court security officer.

57.     Paragraph 7 replicates two existing offences: first, an offence of assaulting a court security officer in the execution of his duty; and secondly, an offence of resisting or intentionally obstructing a court security officer in the execution of his duty.

EUROPEAN CONVENTION ON HUMAN RIGHTS

58.     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."

59.     The offence of seeking to influence a prosecutor with the intention of perverting the course of justice under clause 6 of the Bill may engage Article 10 of the ECHR. However, the Government's view is that any interference can be justified under Article 10(2) as necessary in a democratic society in pursuit of the legitimate aim of protecting the rights of the accused and of the victim to have prosecutorial decisions taken independently.

60.     Clause 9 provides the prosecution with a right of appeal against the grant of bail by a magistrates' court and engages Article 5 of the ECHR. A person charged with an offence can be deprived of his liberty under Article 5(1)(c), subject to the requirements of Article 5(3). The Government's view is that the safeguards built into this clause ensure that rights under Article 5(3) are not breached. A person convicted of an offence can be deprived of his liberty under Article 5(1)(a). The Government's view is that clause 9 engages but does not infringe Article 5.

61.     The transfer of prisoners from Northern Ireland to other parts of the United Kingdom under clause 12 is capable of engaging rights under Article 8 of the ECHR. The Government's view is that any interference with Article 8 rights can be justified under Article 8(2) in the interests of public safety and the prevention of disorder and crime. In order to ensure that the use of this power is a proportionate response, each case will be carefully considered on its individual facts.

62.     The powers of search and seizure given to court security officers under section 15 and Schedule 3 to the Bill engage Article 8 of the ECHR. The Government's view is that any interference with Article 8 rights is proportionate and justified under Article 8(2) in the interests of public safety, the prevention of disorder and crime and for the protection of the rights and freedoms of others (namely, other court users). The Government considers that the powers of seizure engage Article 1 of the First Protocol but that any interference is justified in the public and general interest.

COMMENCEMENT

63.     Clause 18 provides that clauses 1 to 17, together with their schedules, shall come into force on a day to be specified by the Secretary of State (who may specify different commencement dates for different provisions).

 
 
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Prepared: 12 February 2004