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Mr. Hunter: I beg to move amendment No. 22, in page 3, line 38, after 'shall', insert 'within his discretion'.
Mr. Deputy Speaker (Sir Michael Lord): With this it will be convenient to discuss the following amendments:
No. 17, in page 4, line 2, at end insert—
'(4AA) The Director shall refer to the Ombudsman any allegation coming to his attention that a police officer—
(a) may have committed a criminal offence; or
(b) may, in the course of a criminal investigation, have behaved in a manner which would justify disciplinary proceedings,
which is not the subject of a complaint, unless it appears to the Director that the Ombudsman is already aware of the allegation.'.
No. 18, in page 4, line 3, after '(4A)', insert 'and (4AA).'.
No. 19, in page 4, line 6, leave out from 'insert', and insert ', (4A), or (4AA),'.
No. 20, in page 4, line 11, leave out from 'substitute' to end and insert ', (4), (4A) or (4AA).'.
7 pm
Mr. Hunter: I think that the Minister's reply on the amendment will be interesting. He spent 40 minutes or so arguing against an amendment on the ground that it was inconsistent with the criminal justice review. Now he will have to stand on his head and argue against an amendment that seeks to make the Bill consistent with the criminal justice review. He will argue, I anticipate, unless I convince him by the power of my arguments, for a clause that is inconsistent with the review.
The aim of amendment No. 22 is self-explanatory. It is to give the Director of Public Prosecutions for Northern Ireland discretion as to whether to submit certain matters to the police ombudsman. Interestingly, the amendment is linked with two amendments that were tabled by the hon. Member for South Down (Mr. McGrady)—I presume that the hon. Member for Newry and Armagh (Mr. Mallon) will argue for them—that seek to do precisely the opposite. If I understand the Social Democratic and Labour party amendments correctly, they, as it were, firm up the obligation of the DPP to refer to the ombudsman.
The essence of the argument for amendment No. 22 is that the Bill—the same applies to the hon. Gentleman's amendments—is inconsistent with the criminal justice
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review. That review did not demand, or even remotely suggest, that the DPP should be obliged to refer to the police ombudsman any matter that appeared to him to indicate that a police officer may have committed a criminal offence, or may in the course of a criminal investigation have behaved in a manner that would justify disciplinary proceedings.
Paragraph 4.132 of the review states that article 6(3) of the Prosecution of Offences (Northern Ireland) Order 1972 should
"be supplemented with a provision enabling"—
"enabling" is the key word, not "compelling"—
"the prosecutor to refer a case to the Police Ombudsman for investigation where he or she is not satisfied with an Article 6(3) response."
The review recommended not that the DPP should be required under an obligation to refer certain matters to the ombudsman, but that he or she should be able to do so in circumstances that are carefully defined: where he or she is dissatisfied with the reply received under article 63). That in itself prompts the question: what did the review conclude about article 6(3)? Paragraph 4.131 states:
"We recommend that the powers contained in Article 6(3) be retained and that the head of the prosecution service"—
I emphasise that: the head of prosecution, not the police ombudsman—
"should make clear publicly the service's ability and determination to prompt an investigation by the police of facts that come into its possession, if these appear to constitute allegations of the commission of a criminal offence, and to request further information from the police to assist it in coming to a decision on whether or not to prosecute."
In other words, article 6(3) clearly states that primacy lies with the DPP, not with the police ombudsman. The Bill, to be reinforced by the SDLP amendments, contradicts utterly the conclusions of the criminal justice review, and therefore, according to the arguments recently advanced by the Minister, is unacceptable.
In essence, the review gives the DPP, not the ombudsman, primacy in investigating matters to which clause 6 refers. The review recommended that the powers of article 6(3), which give primacy to the DPP, should be retained. The only duty that the review recommended should be imposed on the DPP was a duty to ensure that any allegations of malpractice by the police are fully investigated. The Bill, therefore, goes appreciably further than the review.
In Committee, the Minister said:
"Recommendations were made that the prosecutor and the police should operate effectively together, with the prosecutor being involved in a case early",
but I think that we are entitled to be cynical about the Minister's words. It seems that spin is at work. That is not what the review recommended. It recommended retaining the powers of article 6(3), which give primacy to the DPP's investigative and prosecutory role, and recommended that the police ombudsman should become involved only if the DPP were dissatisfied with an article 6(3) response. The SDLP amendments, like the Bill, try to turn the criminal justice review on its head.
In Committee, the Minister said:
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"The clause was therefore drafted to ensure that the discretion lies with the ombudsman, as is right in cases of potential police misconduct",
but that is not what the review says and it is not the situation that should prevail. Minor police misconduct should be resolved by internal disciplinary processes. Other police misconduct, like all misconduct, should be subject to prosecution if the DPP believes that there is a case to be answered that is substantiated by evidence that will stand up in court. The external assistance of the ombudsman should be sought only if the DPP believes that the police have not fully investigated, or are not fully investigating allegations. That should be a matter for the DPP alone to decide, just as the criminal justice review recommended.
The Bill as it stands allows the DPP no discretion. Under the Bill, if any matter appears to the DPP to indicate that an offence has been committed, he is obliged to refer it to the ombudsman. He cannot exercise any discretion, entirely contrary to the criminal justice review.
"the current terms of the clause are no reflection whatever on the professionalism of the Director of Public Prosecutions."—[Official Report, Standing Committee D, 25 March 2004; c. 68–69.]
That opinion can be disputed, but we can be certain that the clause undermines the role of the DPP and advances the role of the ombudsman, in contradiction of the criminal justice review. The reason for that is clear. The explanatory notes explain it. They state that the change is in line with the undertaking of the Government in the joint declaration published in May 2003 and referred to at page 33 of the updated implementation plan. The amendment serves the simple purpose of moving away from the wheeling and dealing that resulted in the Hillsborough joint declaration, and makes the Bill consistent with the criminal justice review.
Mr. Mallon: I wish to speak to amendment No. 17, to which amendments Nos. 18, 19 and 20 are consequential. I raised the matter on Second Reading. It has also been raised by my hon. Friend the Member for South Down (Mr. McGrady). On both occasions, we were advised that the Government would think about it and, to use the vernacular of this evening, come back to us on it.
I pursue the matter in the interests of seeing where "back" leads to, because I am still not clear about the Government's position.
The matter is important for two reasons. I consider it even more so, having listened to the analysis of the hon. Member for Basingstoke (Mr. Hunter), which tried to rewrite legislation all in one go and transfer from the office of the ombudsman to the office of the Director of Public Prosecutions the ombudsman's entire role in one fell swoop. Of course, that was so transparent that people will realise that very quickly.
First, in the wording that we have presented:
"The Director shall refer to the Ombudsman any allegation coming to his attention",
so that, in effect, the DPP would be able to give an early-warning signal if there were going to be a possible problem. Let us consider some incidents in the past in
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Northern Ireland that are still unresolved. I refer specifically to the Finucane case—the murder of Patrick Finucane. For 15 years, there might have been a resolution had there been an early-warning signal process, but 15 years later, that matter is still not resolved. It is of weighty contention in relation to the report of Judge Corry. Again, action on that is being awaited. Had the Director of Public Prosecutions been able to work in such a way as to give an early-warning signal, and immediately refer
"to the Ombudsman any allegation coming to his attention",
many past problems might well have been short-circuited.
On that basis alone, it would be worth the Government's while to adopt amendment No. 17, but there is a second element to the matter. Primacy does not rest with the Director of Public Prosecutions; primacy on this matter rests with the ombudsman, and the judgment should be for the ombudsman. The Bill as it stands makes judgment reside with the DPP, referring to a matter that "appears to the Director", rather than saying, as I believe it should, that the DPP should refer any allegation. He should not just use his judgment, but refer any allegation that he is aware of.
There are those who might say that that is too neat a point to be making in legislation, but given the history of what has happened in Northern Ireland, the difficulties that we have had and the way in which efforts have been made to create a criminal justice system that is ahead of anything in England or Wales, or in the Republic of Ireland, we should be very careful with points of this nature.
The Government should respond to this matter. They should welcome an early-warning system and not allow in any way primacy to be transferred from the ombudsman to the DPP. For that reason, I recommend amendment No. 17 to the House.
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