8 S.R.
2009/313: Reported for failure to comply with proper drafting
practice
Magistrates' Courts and County Court Appeals
(Criminal Legal Aid) (Costs) Rules (Northern Ireland) 2009 (S.R. 2009/313)
8.1 The Committee draws the special attention
of both Houses to these Rules on the ground that they fail to
comply with proper drafting practice in two related respects.
8.2 Rule 2 contains a list of definitions which apply
unless the context otherwise requires. "Category of offence"
is defined in that rule as having the meaning given by paragraph
2 of Schedule 1, which reads as follows:
Categories of Offence
2. For the purposes
of this Schedule—
| (a | the terms "summary offence", "hybrid offence", "I/TS offence" and "indictable only offence" have the respective meanings given in the list of offences established and maintained by the Public Prosecution Service for Northern Ireland and published by the Commission in August 2009, as amended;
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| (b) | aiding, abetting, counselling or procuring the commission by another person of an offence falls within the same category as the substantive offence to which they relate; and
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| (c) | attempts, conspiracy or incitement to commit an offence fall within the same category as the substantive offence to which they relate.
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8.3 The only other reference in the Rules to the expression "categories
of offence" is in that Schedule, in an italic sub-heading
in Table 1 following paragraph 9. The Committee asked the Northern
Ireland Court Service what doubt was intended to be overcome by
the inclusion of the definition of this expression in rule 2,
and how that intention was achieved.
8.4 In a memorandum printed at Appendix 8 the Department
states that section 10(2) of the Interpretation Act (Northern
Ireland) 1954 provides that marginal notes in an enactment shall
not be construed as part of the enactment and shall be deemed
to be inserted for convenience of reference only; that paragraphs
4, 5(1) and 10(a) in Schedule 1 "include references to a
category of offence, by way of the offence with which the assisted
person was charged"; and that it considers that without the
definition in rule 2 there may have been scope for argument as
to which category of offence the assisted person was charged with.
8.5 Though not expressly stated in the memorandum,
the intention may have been to identify by way of a substantive
provision (rather than by means of a heading) what the expression
"category of offence" meant. However the Committee is
not persuaded that the definition in rule 2 as drafted serves
any useful purpose, because the expression "categories of
offence" does not appear in the body of paragraph 2 of Schedule
1 but only in the heading to that paragraph so the definition
takes the reader no further forward; the Committee also notes
that paragraphs 4, 5(1) and 10(a) of Schedule 1 do not themselves
use the expression defined in rule 2. Given that the expression
"categories of offence" only appears in Schedule 1,
the Department could have dispensed with the referential definition
in rule 2 and reworked paragraph 2(a) of Schedule 1 so that it
stated that a category, in relation to offences, meant
the following: a summary offence, a hybrid offence, an I/TS offence
or an indictable only offence and that those terms had the respective
meanings given in the list of offences […] . The Committee
reports the Rules for failure to accord with proper drafting practice
in this respect.
8.6 Rule 2 states that "a Very High Cost Case"
has the meaning given by rule 9, but that rule does not itself
use that expression except in the heading. In its memorandum the
Department does not answer the Committee's question as to why
the definition was so drafted. The Committee considers that in
a situation like this either rule 2 should have stated that "a
Very High Cost Case" was a case to which rule 9 applied or
the body of rule 9 itself should have been expanded to provide
an express meaning for the term. The Committee reports the
Rules for failure to accord with proper drafting practice in this
respect.
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