Clause 14 - Procedure of Appeals Commissioners

51.     Clause 14 gives effect to Schedule 4, setting out the procedure of the Appeals Commissioners.

Clause 15 - Review by Appeals Commissioners

52.     Subsection (1) of clause 15 provides that judicial review of or appeal against decisions of the Secretary of State or Certification Commissioner under the Bill is available only before the Appeals Commissioners. Examples of proceedings that this would cover are the grant or refusal of a certificate, the cancellation of a certificate and the refusal or suspension of a licence. Where a certificate is cancelled, and this is challenged unsuccessfully before the Appeals Commissioners and criminal proceedings are commenced, then the decision of the Appeals Commissioners may not be questioned in those criminal proceedings (see subsection (5)).

53.      Section 7(1)(a) of the Human Rights Act 1998 provides that a person who claims that a public authority has acted (or proposes to act) in a way which is incompatible with Convention rights may bring proceedings against the authority under that Act in the appropriate court or tribunal. Subsection (2) provides that the Appeals Commissioners are the 'appropriate tribunal' for judicial challenges of the exercise of either the Certification Commissioner or Secretary of State's functions under the Bill.

54.     Subsection (3) of clause 15 provides that the Appeals Commissioners may hear proceedings which, but for this clause, would be heard in the High Court. In any such proceedings the Commissioners are given the power to do anything that the High Court may do (subsection (4)).

Clause 16 - Appeal to Special Appeal Tribunal

55.     Those convicted by the Special Tribunal will have the right of appeal to the Special Appeal Tribunal, which will act in place of the Court of Appeal. They will have the normal right to appeal against conviction; they will also be able to appeal against their sentence (unless the sentence is fixed by law; e.g a mandatory life sentence). A person sentenced to a life sentence may appeal against the term fixed by the court that must be served before he may be considered for release, that is, his "tariff" or "minimum term". No leave is required for such an appeal. No further appeal is available from the Special Appeal Tribunal.

56.     The powers, authorities and jurisdiction of the Special Appeal Tribunal will mirror those of the Court of Appeal, and its actions will have effect as if done by the Court of Appeal.

57.     Subsection (7) of clause 16 gives effect to Schedule 5, which makes further provision about the Special Appeal Tribunal. Under Schedule 5, the Special Appeal Tribunal will consist of a person who has held high judicial office. Rules may be made to cover matters such as tenure and remuneration. Paragraph 3 of Schedule 5 explains that, subject to any direction otherwise, the procedure to be followed by the Special Appeal Tribunal will mirror the procedure applicable in the Court of Appeal.

Clause 17 - Review by Special Appeal Tribunal

58.     Clause 17 acts in a similar way to clause 15. It provides that legal proceedings (including judicial review) in relation to the functions exercised by the Appeals Commissioners under the Bill may only be brought before the Special Appeal Tribunal. Subsection (2) provides that the Special Appeal Tribunal is the appropriate body under section 7 of the Human Rights Act 1998 (c.42) in relation to proceedings which question the exercise of functions of the Appeals Commissioners under the Bill.

59.     Subsection (3) provides that the Special Appeal Tribunal may hear proceedings which, but for clause 17, would otherwise be heard in the High Court. In any such proceedings the Tribunal is given the power to do anything that that High Court may do (subsection (4)). By virtue of subsection (5), there is no appeal from the Special Appeal Tribunal when exercising jurisdiction under this clause.

Clause 18 - Special Prosecutor

60.     Clause 18 provides for the appointment of a Special Prosecutor who will have specific responsibility for bringing prosecutions before the Special Tribunal and conducting proceedings on behalf of the Crown before the Special Appeal Tribunal. Subsection (2) provides that the Special Prosecutor will exercise his functions under the superintendence of the Advocate General to Northern Ireland (the reference to the Advocate General to Northern Ireland should be read as a reference to the Attorney-General until section 27(1) of the Justice (Northern Ireland) Act 2002 is brought into force). Subsection (3) gives effect to Schedule 6, which contains further provision about the appointment, tenure and duties of the Special Prosecutor.

Clause 20 - Subsequent inadmissibility of information provided to commissioners

61.     The provision of personal information, including evidence of identity, by the applicant to the Certification Commissioner is necessary to ensure that the commissioner is properly able to identify an applicant. However, it is also possible that information supplied to the commissioner might be useful in further establishing a case against the applicant. This provision ensures that information passed to the commissioner is used only for purposes associated with the grant of the certificate, and not for the purposes of the proceedings listed in clause 20. Subsection (1) sets out the nature of the information covered by this clause. Subsection (5) ensures that the defendant himself is able to use such evidence on his own behalf, although the prosecution is not. Subsection (6) confirms that information provided to the Commissioner can be used for the purposes of establishing a defendant's identity in the Special Tribunal or Special Appeal Tribunal.

Clause 21 - Consequential amendments

62.     As well as making consequential amendments to the Mental Health (Northern Ireland) Order 1986 (S.I. 1986/595 (N.I. 4)), clause 21 also amends the Regulation of Investigatory Powers Act 2000. Decisions of the Certification Commissioner and of the Secretary of State may be made on the basis of intelligence gathered by means of intercepted communications. Legal challenges to these decisions may be made before the Appeals Commissioners. The use of intercepted communications as evidence in legal proceedings is excluded by the Regulation of Investigatory Powers Act 2000, with certain exceptions. The effect of clause 21(2) is to ensure that proceedings before the Appeals Commissioners, and any proceedings arising from those proceedings, are amongst those listed exceptions. The effect of clause 21(2)(c) is to prevent the disclosure of any such material so used to anyone other than the Secretary of State.

Clause 22 - Suspension and revival of Clause 3

63.     The Secretary of State is given a power to make an order suspending or later reviving the operation of clause 3 (that is: the certification process) and other features of the scheme. This provision allows the Secretary of State to suspend the operation of the scheme when circumstances in Northern Ireland require this.

64.     The effect of this suspension, as set out in subsection (2), is that no further certificates may be granted; any adjournment of proceedings pending the outcome of an application will be ended and proceedings resumed; there would be no exemptions from arrest, entry etc. and there would be no trials in the Special Tribunal; and no licence may be granted either to a certificate holder following conviction in the Special Tribunal or to a certificate holder at that time in custody. However, the suspension of clause 3 would not affect the status of any licence holder, whether their licence was current or suspended (the status of each licence holder would be subject to case-by-case consideration, as outlined in clause 11). Clause 25(5) to (7) provides that such an order to be made by affirmative resolution, but also provides for an order to be made in an emergency, seeking Parliamentary approval in retrospect.

Clause 23 - Repeal of Provisions of this Act

65.     Clause 23(1) allows the Secretary of State to repeal by order any provision of this Bill at any time in the future (but no earlier than two years after commencement). This has the effect of allowing the Secretary of State to effectively shut down the operation of the various bodies provided for in the Bill, if he believes that they are no longer useful. Clause 23(2) allows the Secretary of State to make an order amending the Northern Ireland (Sentences) Act 1998 (c.35) if he has already repealed clause 3 (Certificates of Eligibility) by order. This would allow for the time period for qualification for early release on licence under that Act to be reduced to zero. Clause 25(8) provides that an order under clause 23 must be made by affirmative resolution.

Schedule 1 - Certification Commissioner

66.     Schedule 1 sets out the terms for the establishment of the office of certification commissioner, including tenure, remuneration and allowances, staff, premises and other facilities, annual report, and Parliamentary disqualification.

Schedule 2 - Special Tribunal

67.     Schedule 2 makes further provision for the operation of the Special Tribunal. Paragraph 1 provides for rules to be made on how the Special Tribunal is to become seised of charges for certified offences. This is because charges in these cases will be brought outside the normal procedure of committal or voluntary indictment, which will not apply. Rules under this paragraph will be made by the Secretary of State in consultation with the Lord Chancellor.

68.     Paragraph 2(1) provides that the Special Tribunal will consist of a retired judge of the county court (or equivalent in England and Wales) or a retired judge of a higher tier. Paragraph 2(2) provides for rules to be made in relation to appointment and remuneration and paragraph 3 provides for the Special Tribunal to sit in Northern Ireland.

69.     Under paragraph 4(1) the Special Tribunal can only try offences under Northern Ireland law. Clause 8(2) provides that the Special Tribunal may not try any non-certified offences, subject to paragraph 4(2) of Schedule 2. The effect of this paragraph is that the Special Tribunal may try a certificate-holder for offences committed in Great Britain, but that he will be tried under the law of Northern Ireland with the offence treated as if it had actually occurred in Northern Ireland. Paragraph 4(3) provides that any sentence cannot exceed that which could have been imposed under the law of that part of the United Kingdom where the conduct constituting the offence was actually alleged to have occurred.

70.     Any relevant legislation which applies to the Crown Court or proceedings on indictment will apply to the Special Tribunal. This is subject to modification of these provisions so far as is necessary (that is, obvious and unavoidable) or prescribed by rules made under this section.

71.     The procedure to be followed in proceedings before the Tribunal is to correspond to that followed in normal proceedings on indictment, with the qualification that this is subject to the direction of the court (see paragraph 6 of Schedule 2).

Schedule 3 - Appeals Commissioners

72.     Schedule 3 sets out the terms for the establishment of the Appeals Commissioners including chairmanship, tenure, remuneration and allowances, staff, premises and other facilities, and Parliamentary disqualification.

Schedule 4 - Procedure of Appeals Commissioners

73.     Schedule 4 provides for the Secretary of State to make rules prescribing the procedure to be followed by the Appeals Commissioners. Such rules may provide for allocation of workload, prioritisation of cases, mechanisms for appeal, the provision and protection of evidential material, the holding of proceedings in private including the use of special advocates, limits on successive applications, and the provision of legal aid.

Schedule 5 - Special Appeal Tribunal

74.     Schedule 5 sets out further provision in relation to the Special Appeal Tribunal. Paragraph 1 provides that the Special Appeal Tribunal will consist of a retired judge. Paragraph 2, read with clause 25(3), provides that the Secretary of State, in consultation with the Lord Chancellor, may make rules as to the appointment, remuneration and tenure of the judge sitting in the Special Appeal Tribunal.

75.     Any relevant legislation which applies to the Court of Appeal or proceedings in the Court of Appeal will apply to the Special Appeal Tribunal. This is subject to modification of these provisions so far as is necessary (that is, obvious and unavoidable) or prescribed by rules made under this section. Paragraph 2(1) also makes clear that this only applies to the Special Appeal Tribunal when it is acting in its appeal capacity.

76.     The procedure to be followed in proceedings before the Special Appeal Tribunal when acting in its appeal capacity is to correspond to that followed in normal proceedings before the Court of Appeal, with the qualification that this is subject to the direction of the court (paragraph 3(1)). Paragraph 3(2) provides that the Secretary of State may make rules on the procedure of the Special Appeal Tribunal when acting in its review capacity.

Schedule 6 - Special Prosecutor

77.     Schedule 6 provides the terms for the appointment of a Special Prosecutor, including necessary qualifications, tenure, remuneration and allowances, staff, premises and other facilities, the conduct of proceedings, delegation, and the application of provisions relating to the Director of Public Prosecutions to the Special Prosecutor with modifications by order.

FINANCIAL EFFECTS

78.     The costs of establishing and running the scheme envisaged in the Bill will be borne by the Government. The costs will come from three main areas: the eligibility apparatus, including salaries, accommodation and support staff for the certification commissioner and appeals commissioners; the special prosecutor and staff; and the Special Tribunal and Special Appeal Tribunal, including judges' salaries and expenses, staffing, accommodation, IT and other expenses usually associated with the running of a court. There will be no non-negligible costs for business or other sectors.

EUROPEAN CONVENTION ON HUMAN RIGHTS

79.     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 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 (the Rt. Hon Peter Hain) has made the following statement:

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

80.     The Bill raises a number of issues which affect rights under the European Convention on Human Rights. Those considered to be the most significant are set out below.

81.     In connection with trial before the Special Tribunal, Article 6 of the Convention is relevant because trial before the Special Tribunal involves the determination of a criminal charge. Clause 8 of and Schedule 2 to the Bill provide that the Special Tribunal is to consist of a person who has held a certain level of judicial office and that the tribunal has the same powers, authorities and jurisdiction as the Crown Court would have had were the prosecution to have been on indictment before the Crown Court. The Special Tribunal will sit in Northern Ireland only, but may deal with offences committed outside Northern Ireland. Under clause 8(3) of the Bill there is no obligation on the defendant to appear at his trial and a defendant who declines to enter a plea is to be taken as having pleaded not guilty to all the charges against him.

82.     The voluntary absence of the defendant is not thought to raise any issue under Article 6 of the Convention, particularly since paragraph 5 of Schedule 2 makes clear that publicly funded legal assistance will be available, thus securing the possibility of representation. A person convicted by the Special Tribunal may appeal against either his conviction or sentence to the Special Appeal Tribunal which is established by clause 16. Leave is not required and clause 16 confers on the Special Appeal Tribunal the same powers, authorities and jurisdiction as the Court of Appeal. For this reason, although there is no appeal beyond the Special Appeal Tribunal, it is considered that the provision made by the Bill for trial of offences is compliant with Article 6.

83.     There is no determination of a criminal charge by the certification commissioner. The application of Article 6(1), which is concerned with civil rights and obligations, has been considered. The concept of civil rights and obligations has been given an autonomous Convention interpretation which is not confined to traditional private law rights, but extends to rights and obligations of a civil character. On balance the Northern Ireland Office has concluded that an application for a certificate of eligibility would not engage the civil limb of Article 6(1); but because of the uncertainty of the law in respect of what may count as a "civil right", the scheme has been designed to comply with this part of the Convention. On receiving an application for a certificate of eligibility the certification commissioner will seek whatever additional information he considers necessary and assess whether or not the applicant meets the statutory criteria for the grant of a certificate. Either the applicant or the Secretary of State may appeal to the Appeals Commissioners against a decision of the Certification Commissioner. The Bill enables rules to be made governing the procedure to be followed by the Commissioner. The requirement for a fair and public hearing will not be fulfilled until the appeal stage of the process. However, the availability of a hearing at that stage which would be by an independent body which met all the requirements of Article 6(1) is thought to be sufficient to satisfy that Article were it to apply. (This is because there is a distinction to be made between the determination of serious criminal charges, where it may be imperative under Article 6(1) for the original determination at first instance to be by a court which itself complies with all the requirements of Article 6(1), and other cases where as here it is the determination of "civil rights" which is at issue).

84.     Clause 20 of the Bill provides that evidence and information provided by or on behalf of an applicant for a certificate of eligibility is not admissible against the applicant in certain types of proceedings. This is intended to safeguard the applicant's privilege against self-incrimination. There is an exception in clause 20(6) for evidence as to the applicant's identity. This is important in connection with proceedings before the Special Tribunal, where because the defendant is not obliged to appear it may only be possible to establish identity by relying on information provided to the Certification Commissioner. This exception is not considered to breach the privilege against self-incrimination because information is provided to the certification commissioner or Appeals Commissioners voluntarily by the applicant. In the case of Saunders v United Kingdom ¹ it was held that the right not to incriminate oneself is primarily concerned with respecting the will of an accused person to remain silent, and the court distinguished between evidence advanced obtained under compulsory questioning and breath, blood and urine samples and bodily tissues for the purpose of DNA testing. Nor is the privilege an absolute privilege since in the case of Brown v Stott it was held that the privilege is not absolute and could be subject to limited qualification proportionate to achieving a legitimate aim in the public interest. The need to investigate and prosecute terrorist crime is a legitimate aim in relation to which the limited exception made in clause 20(6) is proportionate.

¹ 1996 23 EHRR 313

85.     Where a person committed the offence in a part of the United Kingdom outside Northern Ireland, he will be tried under the law of Northern Ireland, and sentenced accordingly. In order to prevent the possibility of a breach of Article 7 of the Convention (which prohibits the imposition of a heavier penalty than the one that was applicable at the time the offence was committed), paragraph 4 of Schedule 2 expressly limits the Special Tribunal from exceeding the maximum sentence that would otherwise have applied in the relevant case.

86.     The effect of the exemptions conferred by a certificate of eligibility under clause 7, and the scheme for trial before a Special Tribunal have been considered in the context of Article 2 of the Convention. This Article imposes a substantive obligation on the State to establish a legal regime for the protection of the right to life, not intentionally to take life, and to take reasonable positive steps within the scope of its power to protect life in cases where its servants are or ought reasonably to be aware that an individual in its care is at risk of death or serious injury. The case of McCann v United Kingdom ² established that the obligation imposed on a state to protect the right to life includes a procedural aspect; in particular the court agreed that Article 2 carries an obligation of investigation in cases where individuals have been killed as a result of the use of force by agents of the state. The effect of the provisions in relation to exemption, trial before the Special Tribunal, and release on licence has been considered in the context of Article 2. The primary method by which the investigatory obligation under Article 2 may be discharged is the holding of a criminal trial for the finding of fact and attribution of criminal responsibility. Under the scheme set up by the Bill the full gravity of any crime committed is capable of being reflected in charges brought before the Tribunal and the imposition of serious penalties, because the Special Tribunal will enjoy the same powers as the Crown Court. The impact of the exemptions on any investigation into an offence is limited by the fact that they apply only to the offences specified in the certificate. Further, in practice they apply only to certificate-holders who fall under the first class of persons set out in clause 3(2). Such limitation on the ability to investigate as there may be is considered not to breach Article 2, on the basis that it serves the legitimate aim of reconciliation within Northern Ireland.

² 1995 21 ECHRR 97

87.     Further, the eligibility conditions make clear that the scheme is aimed at those individuals who have renounced violence and not been convicted of a further terrorist offence since 1998, or sentenced to a term of imprisonment of 5 years or more within the last 5 years. Persons released on licence under the scheme are liable to recall if they do become involved in terrorist activity, while a person serving a life sentence is not eligible for release on licence if he poses a danger to the public. It is also relevant that the aim of the legislation is to further the process of reconciliation in Northern Ireland, consistent with Article 2 which seeks to safeguard life.