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

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Schedule 1: Trials on indictment without a jury: consequential amendments

115.     This Schedule makes amendments consequential on the creation of the new system of non-jury trial contained in clauses 1 to 8 of the Bill. In particular, it amends section 14A(1) of the Criminal Procedure and Investigations Act 1996 in order to provide a procedure to apply for the consideration of disclosure issues in relation to trials without a jury. Paragraph 3 of the Schedule provides that the non-jury trial provisions contained in Part 7 of the Criminal Justice Act 2003 are not to apply if the new procedures for non-jury trial set out in clauses 1 to 8 of the Bill are being used.

Schedule 2: Restrictions on disclosure of juror information: further amendments

116.     Schedule 2 makes a number of amendments to the Juries (Northern Ireland) Order 1996 to complement the restrictions on the disclosure of juror information. Paragraph 2 removes the right to inspect and obtain copies of jurors lists and panels; paragraph 3 restricts those persons who may be present at the call-over of the jury panel (i.e. the procedure for ascertaining the attendance of jurors); and paragraph 4 provides that the balloting of jurors shall be conducted using assigned numbers rather than by name.

Schedule 3: Munitions and Transmitters: Search and Seizure

117.     Paragraph 2 provides officers (defined at paragraph 1 as members of the armed forces on duty or constables) with a power to enter and search premises to ascertain if there are munitions unlawfully on the premises, or wireless apparatus on the premises. Paragraph 1(3) defines munitions and transmitters. Paragraph 2(3) enables a constable to be accompanied, if necessary, by other persons. This power allows civilian members of the police force, and those supporting the police (for example, Scenes of Crime Officers), to enter premises with constables.

118.     In order to enter a dwelling an officer must have a reasonable suspicion that there are munitions unlawfully on the premises, or wireless apparatus on the premises. The officer must also be authorised to do so, if a member of the armed forces, by being on duty and being authorised by a commissioned officer, and if a constable, by being authorised by an officer of the Police Service of Northern Ireland of at least the rank of Inspector.

119.     Paragraph 3 gives an officer the power, when carrying out a search of a building, to require someone who is in the building or comes into the building to remain there. The officer may also require a person to remain in a certain part of the building or to go from one part of the building to another. An officer may also stop someone who does not live in the building from entering it. An officer may only impose these requirements if he reasonably believes it is necessary in order for the search to be carried out or to stop the search from being interfered with and frustrated. Any requirements the officer makes must cease when the search finishes. No requirement can last for more than four hours from when the first requirement was imposed, unless it is extended for up to a further four hours by a superintendent (in the case of the police) or a major (in the case of the army). The extension may only be granted if the authorising officer reasonably believes it to be necessary to carry out the search or in order to prevent the search being frustrated. The power to extend a requirement for up to a further four hours can only be exercised once in relation to a particular search.

120.     Paragraph 4 provides that officers may stop and search a person in a public place to establish whether he has munitions unlawfully with him or wireless apparatus with him. In order to search an individual when not in a public place the officer must have reasonable suspicion that the individual has munitions unlawfully with him or wireless apparatus with him. Paragraph 4 also provides that, having entered a dwelling under paragraph 2, members of the armed forces may search a person entering or found inside. Dwelling is defined at clause 41 of this Bill.

121.     Paragraph 5 allows that, when using powers of search under Schedule 3 or clause 24 or 25, an officer may seize, retain and destroy any munitions (unless it appears to him that they have been, are, and will be used lawfully). An officer may also seize and retain any wireless apparatus found in the course of the search (unless it appears to him that it has been, is, and will be used lawfully).

122.     Paragraph 6 requires, unless it is not reasonably practical, that records are made for any search carried out using the powers in this Schedule. Paragraph 7 states that a copy of the record should be supplied as soon as possible to whoever appears to be the occupier of the building that has been searched.

123.     Paragraph 8 creates an offence where a person knowingly fails to comply with requirements under paragraph 3 or wilfully seeks to obstruct or frustrate searches of premises carried out under powers in the Schedule.

124.     Paragraph 9 creates an offence of not stopping when required to do so in accordance with Paragraph 4.

Schedule 4: Compensation

125.     This Schedule provides for a scheme of compensation where, in exercising powers under clauses 20 to 31, property is taken, occupied, destroyed or damaged, or where any other act interferes with private rights of property. Compensation must be paid to those who have an interest in the property or who suffer loss or damage.

126.     Paragraph 3 provides that an application must be made within 28 days of the event for which compensation is being claimed. Sub-paragraph (2) gives the Secretary of State discretion to allow applications after this time, within a defined timeframe of no more than six months after the incident, if he receives a written request. Sub-paragraph (3) provides that if the Secretary of State decides not to use this discretion a notice of refusal must be served on whoever made the request, and they may appeal that decision to the county court. The county court may then exercise the power under sub-paragraph (2) to extend the period in which an application can be made.

127.     Decisions either to award or deny compensation must be communicated to the applicant as noted in paragraph 4. Paragraph 5 provides that appeals against decisions can then be made to the county court. Paragraph 6 allows that the award may be reduced, withheld or refused if the Secretary of State considers that the applicant made a false or misleading statement, made a statement he did not believe to be true, or knowingly failed to disclose a relevant fact.

128.     Paragraph 7 provides that the Secretary of State may make a payment to cover the costs of the application for compensation, where that application was successful.

129.     Paragraph 8 allows for a situation where the right of compensation passes on to another individual after an application has been made. In that case the Secretary of State may treat that person as the applicant.

130.     In paragraph 9, where an act, which is the subject of the claim for compensation, was done in connection with or revealed evidence of an offence for which proceedings are brought the right to compensation is not enforceable until those proceedings have concluded and is lost if a person is convicted. For example, if an individual made a claim for damage done to his or her property during a search carried out using the powers in Schedule 3 of this Bill, but that search revealed illegal ammunition for which the claimant was charged, their claim would effectively be suspended. If they were convicted as a result of those proceedings they would lose any right to compensation.

131.     Paragraphs 10 and 11 provide details of how notices related to compensation must be served.

132.     Paragraph 12 creates an offence of obtaining compensation by deception or by making false or misleading statements, making statements which a person does not believe to be true, or knowingly failing to disclose a relevant fact.

Schedule 5: Private Security Industry: Interim Arrangements

133.     This Schedule (which is given effect by clause 45(2)) sets out the interim arrangements prior to the commencement of the provisions in the 2001 Act in Northern Ireland.

134.     Paragraphs 4 to 7 detail the offences of providing or using unlicensed private security services. Security services are defined in paragraph 1 as the services of one or more individuals as security guards, which may or may not be provided together with services relating to the protection of property or persons. It is an offence if a person provides or offers to provide security services for reward unless he holds a licence or acts on behalf of someone who holds a licence. A person also commits an offence if he pays money in respect of the provision of security services to a person who does not hold a licence or is not acting on behalf of someone who holds a licence.

135.     Paragraph 8 sets out the application process. A firm wishing to provide a security service must make an application to the Secretary of State for a licence, who may require information about the applicant, a security services business he intends to carry on, a person whom he proposes to employ as a security guard, or his partners, members or officers (including directors, managers or secretaries). It is an offence if a person makes a false or misleading statement in connection with the application for a licence.

136.     Paragraph 9 states that a licence will be granted unless the Secretary of State is satisfied that any one of four conditions applies. Condition 1 is that a proscribed organisation (as defined by the Terrorism Act 2000), or an organisation which appears to be closely associated with a proscribed organisation would benefit from the granting of that licence. Condition 2 is that there are reasonable grounds to suspect that the applicant's security services business, employees, partner, members or officers are engaged in criminal activity. Conditions 3 and 4 respectively are the

applicant's persistent failure to comply with the Schedule, and the applicant's failure to comply with conditions imposed on a licence.

137.     Paragraph 10 states that the Secretary of State may impose a condition on a licence if satisfied that it is necessary to prevent a proscribed organisation, an organisation which appears to be closely associated with a proscribed organisation, or a person who engages in criminal activity from benefiting from the licence (whether direct or indirect, financial or not).

138.     Paragraph 11 states that the Secretary of State shall notify the applicant if his application for a licence is refused.

139.     Paragraph 12 details the duration of a licence. The licence shall come into force on the day it is issued and will be valid for 12 months beginning with that day. If a new licence is issued to a person who already holds a licence, it will be valid for 12 months from the day after the current licence expires.

140.     Paragraph 13 provides for the Secretary of State to revoke a licence if satisfied that a proscribed organisation, or an organisation which appears to be closely associated with a proscribed organisation would benefit from that licence, or if the licence holder's security services business (or associates) are engaged in criminal activity. A licence may also be revoked if the licence holder has persistently failed to comply with the requirements of this Schedule, or has failed to comply with a condition imposed on the licence.

141.     The Secretary of State shall not revoke a licence unless the holder has been notified of his intention to revoke the licence. Neither shall the licence be revoked by the Secretary of State unless the holder has been given a reasonable opportunity to make representations to the Secretary of State.

142.     Paragraph 14 states that upon the refusal or revocation of a licence, or in the event of having conditions imposed on it, the applicant may appeal to the High Court. Where an appeal is brought to the High Court, the Secretary of State may issue a certificate to show that his decision was made in order to prevent a proscribed organisation, an organisation closely associated with a proscribed organisation or a person engaged in criminal activity, from benefiting from that licence; and can be justified by these reasons. The appellant shall be notified of the Secretary of State's decision to issue a certificate, and may appeal against the certificate to the Tribunal established by the Northern Ireland Act 1998.

143.     Where an applicant proposes to employ a security guard about whom information was not given under paragraph 8, paragraphs 16 to 19 state that he shall give the Secretary of State specified information about the security guard, no less than 14 days before his employment is to commence. Where there is a relevant change in personnel (changes to the members in partnership or officers of the body), the Secretary of State must be given any information as he may specify at least 14 days before the change in personnel, or as soon as is reasonably practical. It is an offence if a person fails to give the Secretary of State information he has requested about a proposed security guard or a change in personnel.

144.     Paragraph 20 provides that a constable may enter premises where security services are being provided and require records about employed security guards to be produced for his inspection. He may use reasonable force to enter the premises, and he must identify himself as a constable. It is an offence if the provider of security services does not produce the records that the constable requires. Paragraph 21 provides that it is also an offence if he keeps records about any employees which he knows are false or misleading.

145.     Paragraph 22 states that where an offence is committed by a body corporate with the consent of an officer, or due to the neglect of an officer, the officer as well as the body corporate shall be guilty of the offence.

146.     Paragraph 23 states that any information required by the Secretary of State must be in writing and may be sent by post. It also sets out how the Secretary of State may serve a notice on an individual, a partnership or a body corporate.

FINANCIAL EFFECTS OF THE BILL

147.     The SIA will be provided with around £2.5 million over three years to cover initial start-up costs in Northern Ireland. After this, the SIA will be self-financing in Northern Ireland. There may be a minor saving as a result of the introduction of restricted legal aid certificates in the magistrates' court. The Bill has no other financial effects.

PUBLIC SECTOR MANPOWER

148.     Extending the remit of the SIA to Northern Ireland is unlikely to have an effect on public sector manpower. The SIA will have to deal with additional licences and licence applications, but we do not expect that they will require any additional administrative staff to process licence applications from Northern Ireland. It may be possible that the SIA will require a small team of enforcement officers and inspectors to operate in Northern Ireland, but this will not be a significant number and has not yet been decided.

REGULATORY IMPACT ASSESSMENT

149.     An initial regulatory impact assessment (RIA) was prepared and published with a consultation paper entitled 'Regulating the Private Security Industry in Northern Ireland'. The RIA identified that businesses which seek the services of private security companies are unlikely to be adversely affected by regulation and will benefit from the assurance that the company is properly and thoroughly regulated, in line with arrangements elsewhere in the UK. The consultation also clarified that the industry and various stakeholders were in favour of the Government's proposals.

150.     The impact of regulation on the private sector will be positive by reducing crime, increasing public safety and improving the industry and its competitiveness on a North/South, East/West basis.

151.     A full RIA is available on the Northern Ireland Office website at www.nio.gov.uk.

EUROPEAN CONVENTION ON HUMAN RIGHTS

152.     The Secretary of State for Northern Ireland, Rt Hon Peter Hain MP, has made a statement of compatibility with the Convention Rights under section 19(1) of the Human Rights Act 1998.

Clauses 1 to 8 (trials on indictment without a jury)

153.     Clauses 1 to 8 provide for trials on indictment to be held without a jury, where the Director of Public Prosecutions for Northern Ireland issues a certificate to that effect under clause 1. It is not considered that these provisions of the Bill infringe ECHR rights: in particular, it is not considered that Article 6(1) ECHR, providing the right to a fair and public hearing by an independent and impartial tribunal in the determination of civil rights and obligations or of any criminal charge, is infringed.

154.     It is considered that both forms of trial - whether before a judge sitting with a jury, or by judge alone - provide a valid mechanism for the determination of a criminal charge by an independent and impartial tribunal. A decision to conduct a trial before a judge sitting without a jury is not the determination of a criminal charge: it is similar to the decision to prosecute and simply determines which independent and impartial tribunal shall hear the case. Article 6(1) ECHR as it applies to criminal proceedings does not apply to preliminary hearings concerning trial arrangements and matters of procedure; and, in relation to Article 6(1) ECHR as it applies to civil rights, it is considered that a decision to proceed with one mode of trial as opposed to another is not an adjudication on any civil right of the accused. This approach is considered consistent with caselaw (such as the decision of the Northern Ireland Divisional Court in In Re Shuker and Others [2004] NI 367) which holds that the current position in relation to Article 6(1) ECHR is that it is likely to be engaged when a citizen has public law rights of a personal or economic nature and which do not involve any large measure of official discretion; the rights connected with mode of trial are, however, firmly rooted in public law, and are not similar in character to private law rights which would be more amenable to protection under Article 6 ECHR. The limitation of challenge by way of application for judicial review to the issue of a certificate under clause 1, which is set out in clause 7 of the Bill, is also not considered to infringe ECHR rights -a decision to issue a certificate dishonestly or with bad faith would be challengeable - and this approach is, again, considered to be consistent with the current caselaw.

Clauses 9 to 12 (juries)

155.     Clauses 9 to 12 (and Schedule 2) give effect to a number of reforms intended to reduce the risk of juror intimidation and partisan juries by achieving greater anonymity for jurors and by promoting greater randomness in jury selection. It is not considered that any of these provisions infringe ECHR, and in particular the Article 6 ECHR right to a fair trial.

156.     As regards the restrictions on disclosing juror information, it has already been noted that Article 6 ECHR does not confer the right to trial by jury: accordingly nor does it confer a right to access information pertaining to jurors. It is not considered that the introduction of restrictions on revealing jurors' information to the defence will confer any unfair advantage on the Crown, or subject the accused to any unfair disadvantage. Although it will remain the case that, in certain circumstances, the police will be permitted to carry out additional juror checks, it is intended that such checks will be carried out by police not connected to the prosecution and that the Attorney-General will issue guidelines to strictly limit the occasions when such additional checks can be undertaken. It is considered that these arrangements are adequate to ensure that there is no inequality of arms between the parties.

157.     The abolition of the defendant's right to peremptory challenge should not, in principle, compromise in any way the defendant's right to a fair trial: the defendant will continue to enjoy adequate protection due to the retention of his right to challenge any juror for cause. As far as any counterbalancing is required, this will again be provided by the introduction of restrictions, in the form of guidelines issued by the Attorney-General, on the exercise of the Crown's equivalent use of 'stand-by'. Even in the absence of such guidelines the fairness of the trial should not be jeopardised by the removal of the defendant's right to peremptory challenge as the Crown is under a duty to act with absolute propriety, and the court is entitled to intervene to ensure absolute standards of propriety are observed.

Clauses 13 to 19 (Human Rights Commission)

158.     These provisions give enhanced powers to the Northern Ireland Human Rights Commission (the "Commission") to institute or intervene in human rights proceedings, and to conduct investigations relating to such rights. Of particular note is, firstly, that a notice issued by the Commission under new section 69A(1) inserted by clause 14 of the Bill requiring, for example, the provision of information as part of an investigation is not capable of requiring a person to provide information that he would be prohibited from disclosing by virtue of an enactment (including the Human Rights Act 1998) and is also not capable of requiring a person to do anything that he could not be compelled to do in proceedings before the High Court. Secondly, new section 69B of the 1998 Act inserted by clause 14 sets out in paragraphs (a) to (f) circumstances in which the Commission may not require, for example, the production of information where this would prejudice the interests of national security, but these provisions are not considered to infringe ECHR rights of individuals as such: rather, they limit the investigative powers of the Commission in these specified circumstances and where the interests of national security require this.

159.     It is considered that the enhanced powers being given to the Commission by the Bill will assist the Commission in its task of investigating alleged breaches of fundamental rights, and that ECHR rights will not be infringed by the Commission's use of these powers.

Clauses 20 to 41 and Schedules 3 and 4 (Powers)

160.     These clauses confer powers which engage a number of Convention rights. The most pertinent are Articles 5 (right to liberty) 8 (right to privacy), and Article 1 Protocol 1 (interference with personal property).

Article 5:

161.     Article 5 provides, in part, that everyone has the right to liberty and security of person and no one shall be deprived of his liberty save in specified situations and in accordance with a procedure prescribed by law. This Article needs to be considered in relation to powers of stop and detention; the relevant powers are in clause 20, 21 and paragraph 3 of Schedule 3.

162.     The exercise of powers that fall short of arrest but none the less prevent an individual from doing what he or she likes falls into a grey area. The ECtHR has stated that in determining whether the level of restraint involved amounts to a detention regard should be had to a 'whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question.' It is clear that a power to stop and question does not amount to a deprivation of liberty under Article 5. Therefore, the power in Clause 20, which involves stopping a person for a relatively short time in order to question does not engage Article 5.

163.     The power in paragraph 3 of Schedule 3 to require a person to remain in a place during a search could be used in such a way as to engage Article 5, because the officer may impose requirements which, theoretically, last for up to 8 hours. In practice individuals would not be expected to remain in one room for a long period of time; they would be allowed to leave the premises or move around within premises subject to some restrictions, and for a much shorter time. Guidance will be issued to

police and armed forces personnel on the appropriate use of this power so as to ensure that these powers are not exercised in a way that engages Article 5.

164.     The power of arrest in clause 21 satisfies the requirement in Article 5(1)(c) for an arrest to be on reasonable suspicion that an offence has been committed or reasonably considered necessary to prevent the commission of an offence.

165.     This clause does not raise any Article 5 concerns.

Article 8:

166.     Under Article 8 everyone has the right to respect for his private and family life, his home and his correspondence. Article 8(2) provides that no public authority shall interfere with the exercise of this right except in accordance with the law and as is necessary in a democratic society for specified aims. Should Article 8 be engaged the specified aims are the interests of public safety, national security and the prevention of crime.

167.     Article 8 is relevant where the police may search a person, their home or other property or their correspondence. These issues arise in clauses 21, 22, 24, 25 and 26 and paragraphs 2 and 4 of Schedule 3.

168.     The powers under paragraph 4 and clause 20 are necessary in the interests of public safety, the prevention of crime and in the interests of national security since these powers enable preventative action to be taken to disrupt terrorist activity and reduce the likelihood of terrorist attack. The power in clause 20 enables both the police and the army to combat crime and to gather information and intelligence and is justified in the interests of national security, public safety and the prevention of crime. Arguably, the power to ask questions in relation to an incident which caused loss of life enables the state to comply with the procedural and investigative obligations under Article 2.

169.     The power to enter premises without a warrant is conferred in situations in which the police may be required to enter and act without delay on information relating to the location of a terrorist or in "hot pursuit" of a terrorist. Delay could lead to the destruction of evidence or escape of the suspect (clauses 21, 22, and 24), to life being endangered (clause 24) or to terrorist gangs moving wireless equipment and explosives (paragraph 2 of Schedule 3).

170.     Clause 25 provides that a power to search premises under clause 23 or 24 includes a power to stop and search vehicles, and, where a search is carried out under Schedule 3, to require a person in or on the vehicle to remain with it, or go with it to a place where it is being searched, and to exercise reasonable force to secure compliance. Article 8 issues therefore arise; a search of a vehicle may be as much an intrusion into an individual's privacy and autonomy as a search of a building, and the justifications discussed above also apply to clause 25.

171.     Clause 26 provides that where a search is performed under clauses 23 to 25 a member of the armed forces may examine any document found in order to ascertain whether it contains material which is likely to be of assistance to a terrorist (an offence under section 58(1) of the 2000 Act). Such documents may be removed for examination. Since the right to privacy in Article 8 includes their correspondence, this engages Article 8.

172.     The purpose of the examination is, however, limited and is justified in the interests of national security, public safety and the prevention of crime.

173.     Further, since the information might relate to names of persons being targeted by terrorist organisations, the exercise of this power may be necessary to fulfil the Government's positive obligations under Article 2.

174.     The greater the potential intrusion into a person's privacy, the greater level of authority is required. More senior authorisation is required in relation to the entry of dwellings (clause 23 and paragraph 2 of Schedule 3).

175.     The powers of entry and search are compatible with Article 8.

 
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Prepared: 27 November 2006