Justice (Northern Ireland) Bill [Lords]

[back to previous text]

Mr. Andrew Hunter (Basingstoke) (Ind Con): I draw the hon. Gentleman's attention to the criminal justice review, where primacy is clearly given to the head of prosecution. Only when he or she is not satisfied with the article 6(3) response under the Prosecution of Offences (Northern Ireland) Order 1972 should the ombudsman be involved. I am trying

Column Number: 075

to understand the authority or experience through which the hon. Gentleman wants to reverse the priorities of the criminal justice review.

Mr. McGrady: The hon. Gentleman makes a point that can be quickly dealt with. The criminal justice review, in addition to what he has says, clearly states the recommendation that

    ''a duty be placed on the prosecutor to ensure that any allegations of malpractice by the police are fully investigated.''

That is not so that he can make a judgment, but so that he can initiate an investigation. That can be done only through reference to the ombudsman's office.

In case the Minister thinks I am making a pedantic point, let me explain why I am not. In 1991, a man called Billy Stobie was charged with possession of weapons. On being charged, he threatened to reveal that he was a police informant, that he had warned the police in advance that the Ulster Defence Association was going to murder somebody and that he had also warned them of the location of the weapon to be used.

The person who was to be murdered was the defence lawyer Pat Finucane. The police did not intervene. They did not seize the weapon and Mr. Finucane was shot dead in front of his family. After Stobie threatened to reveal that information, the charges against him were inexplicably dropped by the DPP despite the fact that, under the law, Stobie, who was caught in possession of weapons and firearms, was technically required to prove his own innocence. That decision remains unexplained today. Since then—unfortunately and perhaps unjustifiably—a cloud of suspicion has hung over the decision and, by extension, over the office of the Director of Public Prosecutions.

Had the law been as we are arguing that it should be, the DPP, on hearing such a threat from Stobie, would have had to refer the matter to the police ombudsman for investigation. The investigation would have been carried out, there would have been exposure—I hope—and public confidence would have been restored. That would have protected the Director of Public Prosecutions from the serious allegation that he had turned a blind eye because of instructions from other quarters. It would have proved an important factor in the credibility of the whole process.

Had such a measure been in place in 1991, it would have ensured that the criminal justice system was not, in many people's eyes, corrupted by itself. That is an example of what we are trying to prevent. Perhaps it is coincidental, and of course I am not supposed to refer to this, but today the Secretary of State will make a statement to the House on the Cory report. I assume that that statement will vindicate much of what I am saying.

In terms of implementing the full, clear, explicit decision of the criminal justice review and the clear commitment given in writing by the Government, I assume that they will accept my amendment as a reflection of their true intention. Therefore, I commend amendments Nos. 68 to 71.

Column Number: 076

9.30 am

Mr. Hunter: With all due respect to the hon. Gentleman, I believe that he has fundamentally misunderstood what the criminal justice review states. I put it to him—if he bears with me, I shall substantiate this—that the review did not demand, or even remotely suggest, that the DPP should be obliged to refer to the police ombudsman any matter that appears to the DPP to indicate that a police officer

    ''may have committed a criminal offence;''


    ''may, in the course of a criminal investigation, have behaved in a manner which would justify disciplinary proceedings''.

At paragraph 4.132 of the review, it is recommended that article 6(3) of the 1972 order

    ''be supplemented with a provision enabling''—

enabling is the key word; there is nothing about 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 recommend not that the DPP should be required to refer certain matters to the ombudsman, but that he or she should be able to do so in circumstances that it then carefully defined—when he or she is not satisfied with an article 6(3) response. That begs the question, what did the review conclude on article 6(3)? At paragraph 4.131, it states:

    ''We recommend that the powers contained in Article 6(3) . . . be retained and that the head of the prosecution service''—

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 essence, article 6(3) gives the DPP, not the ombudsman, primacy in investigating the matters to which clause 5 refers. The review recommended that the powers of that article 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.

Last Thursday, 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 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 only that the police ombudsman could, not should, become involved if the DPP was dissatisfied with the article 6(3) response.

The hon. Member for South Down is trying, as the did Minister last Thursday, to turn the criminal justice review recommendation on its head. Last week, the Minister went on to say that clause 5

    ''was therefore drafted to ensure that the discretion lies with the ombudsman, as is right in cases of potential police misconduct.''

Column Number: 077

That is not what the review said, and that is not the situation that should prevail. Minor police misconduct should be resolved by internal disciplinary processes. Other police misconduct, like all other 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 a police ombudsman should be sought only if the DPP believes that the police have not fully investigated, or are not fully investigating, allegations. That is for the DPP alone to decide, just as the criminal justice review recommended.

Last Thursday, the Minister also argued that

    ''the clause allows for the director to exercise some judgment''.

The hon. Member for South Down reflected that in his remarks, but I disagree. If any matter appears to the DPP to indicate that an offence may have been committed, he is obliged to refer it to the ombudsman under the terms of the Bill. He cannot exercise any discretion entirely contrary to the recommendations of the criminal justice review.

The Minister also said that

    ''the current terms of the clause''—

an interesting choice of words—

    ''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 all depends on what one means. We can, however, be certain that the clause undermines the role of the DPP in absolute contradiction of the criminal justice review. The reason for that is clear from the explanatory notes, which say that the clause 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.''

Neither the hon. Member for South Down, nor the Minister last Thursday, convinced us that the clause should stand part of the Bill. In due course, I shall express that through my vote.

Mr. Dominic Grieve (Beaconsfield) (Con): I shall be brief. I have found this debate fascinating, because it takes me back to when we were discussing the role that the Northern Ireland police ombudsman is supposed to play. It never crossed my mind that we were creating a police chief to police the police. It always seemed to me that, as the word ''ombudsman'' implies, we were talking about someone who could be a reference point for potential complaints about police conduct. Otherwise, the word ''ombudsman'' is curious, because the ombudsman is not an ombudsman but someone different—he or she is the head of the prosecution authority for the prosecution of police officers in Northern Ireland. We should bear that closely in mind as a general principle when we consider the issues that divide the Committee over the clause.

Of course there must be a dialogue between the DPP and the ombudsman. To that extent, when I first read the clause, it struck me as relatively innocuous

Column Number: 078

and simply a beefing up of the ombudsman's traditional role. However, the amendment that stands in the name of the hon. Member for South Down would turn it into something different. That begs the question, who carries out prosecuting functions in a country?

I am unhappy about such split prosecution functions. A complaints authority and a public prosecutor are not the same thing, and the Committee should be careful to keep that distinction. That is not to say that the ombudsman does not have an important role, but it does mean that it should be possible for the DPP to conduct public prosecutions. The Minister will correct me if I am wrong, but I do not remember it being suggested that the DPP was unsatisfactory or failed to prosecute police officers. Rather, what was suggested—what seemed to me to have some force—was the fact that the public needed to be reassured that possible misfeasance by police officers was independently investigated. Again, those are not one and the same thing. I shall listen to the Minister with interest, because it is important that we should not start muddling the roles of those two individuals.

Previous Contents Continue

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

©Parliamentary copyright 2004
Prepared 1 April 2004