Justice (Northern Ireland) Bill [Lords]

[back to previous text]

Mr. Spellar: The hon. Gentleman asked why the ombudsman should have a role in the first place, but he will recognise that the amended Police (Northern Ireland) Act 1998 provides that the DPP, along with the Policing Board, the Chief Constable and the Secretary of State may refer ''any matter'' to the police ombudsman. The ombudsman already has a role, and I am surprised that he is concerned about that.

Mr. Hunter: I am aware that the 1998 Act was amended by the 2002 Act. I am concerned that the ombudsman has a role in what I believe to be a matter for the DPP alone. It is unnecessary to bring in the additional dimension of the ombudsman's activities, because the matter could be dealt with by the DPP, whose primary job is to assess whether there is any evidence, and whether the case is strong enough to proceed.

The amendment relates to the duty that was imposed in the 2002 Act, which is repeated in the Bill. On that basis, I repeat the argument that the DPP should have the supreme role. To reduce it to simplicity, he should have the discretionary powers to refer to the ombudsman. On that, I rest the case.

Mr. Carmichael: I do not necessarily agree with everything that the hon. Gentleman said, but he is

Column Number: 067

largely right that this is something in respect of which the DPP ought to have discretion. I do not particularly like the form of words in the amendment—instead of ''shall'' it should state ''may'', which would have achieved the same end. However, inasmuch as the DPP is a professional exerciser of discretion, there may be circumstances in which a matter is de minimis—for example, when it is not in anyone's interests for it to be referred in the way envisaged. He ought to have the power not to refer it. That is not in the measure as things stand. Accordingly, there is merit in the hon. Gentleman's argument.

Mr. Spellar: Why does the hon. Gentleman believe that the clause as drafted does not provide what he wants?

Mr. Carmichael: The Bill states:

    ''The Director shall refer to the Ombudsman any matter which''.

To my mind, that does not leave him any scope not to refer a matter. Can the Minister see any scope for discretion?

Mr. Spellar: Paragraph (a) uses the words ''appears to the Director''. How does the hon. Gentleman interpret that?

Mr. Carmichael: If it appears to the director that the police officer has committed, or may have committed, a criminal offence or has done something that will encompass disciplinary proceedings, he is obliged to refer the matter to the ombudsman. The point about having discretion is that circumstances may appear to the DPP to indicate that a police officer has committed an offence or done something that will lead to disciplinary proceedings, but it still may not be something that he thinks appropriate to refer to the ombudsman. Surely in such circumstances, which would probably be rare, the DPP ought to have the power not to refer a matter.

Mr. Trimble: I rise to support the amendment and to agree with what has been said about it. The Minister's intervention was interesting because he queried whether the phrase

    ''which appears to the Director''

introduced any element of discretion. I am not sure that it does, because to whom else would it appear? This is a duty being placed on the director, so it can operate only in respect of something that ''appears'' to him.

The clause continues that the director shall refer any matter which appears to him ''to indicate'' that an officer ''may have'' committed a criminal offence. That sets the bar very low indeed. A low standard is being set and there will be a huge number of referrals. The director is not required to be satisfied that an offence has been committed, or to have reasonable grounds for believing that an offence has been committed. It is sufficient if it appears to him that it may have been committed. To set the standard so low without giving the director discretion over whether to refer is an alarming development.

It is interesting that the Minister referred to the phrase

Column Number: 068

    ''which appears to the Director'',

which drew a lot of comment on Second Reading. Some hon. Members were concerned that it contained a discretion, and they did not want any discretion at all. I sometimes think that we are creating a crazy legal system in Northern Ireland, and one of the craziest parts, in all senses of that word, is the operations, role and remit of the police ombudsman's office. The provisions will give a huge power to the police ombudsman's office. The director will be placed under a duty to refer every case where there is any indication that an offence may have been committed. The standard is remarkably low. Persons will be subjected, as we know from experience, to oppressive proceedings.

Anyone who is concerned about maintaining an effective and efficient police service would recoil in horror at the provision. It would be best to give the director a discretion. That proposal could be reinforced with some later amendments, although I shall not discuss those now. I merely argue now for a discretion to be given to the director. Otherwise, a huge number of cases will be referred in which there are no real grounds for investigation. That is not a wise move.

Mr. Grieve: I shall in due course speak at greater length on clause stand part, but I completely sympathise with what the hon. Member for Basingstoke is trying to achieve. I understand the clause—that is not the problem—but I am bound to say that it troubles me. It is not the job of the Director of Public Prosecutions to cross-reference to anybody else in respect of the decisions that he must make on whether to initiate public prosecutions. The matter is as simple as that.

Ombudsmen are there for another, important purpose. I do not disagree that the Northern Ireland police ombudsman has an important role in reassuring the public that the police always act properly. However, I do not understand the reason for the clause. I suspect that this specific clause is needed because the Government have realised that without it the DPP might well say that passing to third parties material relating to the process that he must undertake of deciding whether to prosecute is none of his business. That is exactly what the rule should be. It is not the business of the DPP to tip off Government or quasi-autonomous ombudsmen about material that comes before him. It is important both that that should be the case and that he should not be contaminated with administrative roles that are separate from his role in bringing prosecutions or deciding not to. For that reason alone, I would favour the amendment. In fact, I go much further and think that the entire clause should be deleted.

Mr. Spellar: As the hon. Member for Basingstoke rightly said, the amendment would give the Director of Public Prosecutions a discretion over whether he should refer a case of suspected police malpractice to the police ombudsman. I should like to make it clear at the outset that the current terms of the clause are no reflection whatever on the professionalism of the Director of Public Prosecutions. The Government are obviously quite happy to endorse fully the

Column Number: 069

independence and impartiality of the director, in whom we have every confidence.

The Government believe that the clause accurately meets the recommendation of the criminal justice review, which was that a duty be placed on the prosecutor to ensure that any allegations of malpractice by the police be fully investigated. I am sure that no hon. Member would dispute the importance of such a provision. It is worth reminding ourselves of the context in which the review made its recommendation. Recommendations were made that the prosecutor and the police should operate effectively together, with the prosecutor being involved in a case early. The clause was therefore drafted to ensure that the discretion lies with the ombudsman, as is right in cases of potential police misconduct.

Although the discretion will lie with the ombudsman, the clause allows for the director to exercise some judgment—he is not simply an automaton or postbox. That would not be the effect of the amendment. It is also worth pointing out that the provision does not in any way impinge on the director's role in prosecutions, for which the decision about whether to prosecute lies with him. That is different from matters relevant to the ombudsman, who will deal with suspicion of police wrongdoing.

Accordingly, I ask the hon. Gentleman to withdraw the amendment.

4.45 pm

Mr. Hunter: I acknowledge that the wording of amendment No. 25 may not be the best possible to achieve the desired objective. On that basis alone, I shall ask the Committee's leave to withdraw it. However, I believe that the amendment, imperfectly

Column Number: 070

though it may have been worded, has drawn attention to fundamental issues to which we are entitled to return on Report.

The Minister seemed to be in two minds, at one point beginning to argue that the discretion already existed in new subsection (4A) before moving to a different ground. I do not believe that the ombudsman should have a role in the offences covered in clause 5, as they should be the responsibility of the Director of Public Prosecutions, and if the ombudsman is to have a role, it should be at the director's discretion.

Mr. Trimble: Towards the end of the Minister's comments, he made a reference to the criminal justice review, and I have been able to turn up what appears to be the relevant passage:

    ''We recommend that Article 6(3) of the 1972 Order be supplemented with a provision enabling the prosecutor to refer a case to the Police Ombudsman for investigation''.

The word ''enabling'' shows that the provision is a discretion, not a duty. Once again, the Minister has referred to the review but is not acting in accordance with it.

Mr. Hunter: The right hon. Gentleman makes the point emphatically: the situation is not as the Minister describes.

I rest my case. Although I am unconvinced by the Minister's response, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Further consideration adjourned.—[Vernon Coaker.]

Adjourned accordingly at thirteen minutes to Five o'clock till Thursday 1 April at ten minutes past Nine o'clock.

The following Members attended the Committee:
Benton, Mr. Joe (Chairman)
Barnes, Mr.
Carmichael, Mr.
Casale, Roger
Clarke, Mr. Tony
Coaker, Vernon
Grieve, Mr.
Harris, Mr. Tom
Hepburn, Mr.
Hunter, Mr.
Irranca-Davies, Huw
Lucas, Ian
McGrady, Mr.
Palmer, Dr.
Robathan, Mr.
Spellar, Mr.
Swayne, Mr.
Swire, Mr.
Taylor, Ms Dari
Thomas, Gareth
Trimble, Mr.

Previous Contents

House of Commons home page Parliament home page House of Lords home page search page enquiries ordering index

©Parliamentary copyright 2004
Prepared 25 March 2004