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Lord Maginnis of Drumglass moved Amendment No. 5:


The noble Lord said: My Lords, both in Committee and on Report I indicated that my party and I are unhappy with the Bill, largely because we suspect that it will not work for the greater good of the people of Northern Ireland. It is a very political Bill. In his remarks earlier, the noble Lord, Lord Glentoran, intimated that he feels likewise.

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One should consider the words of the noble Lord, Lord Dubs, at Report stage. He said about this part of the Bill:


    "The Government gave their commitment at Hillsborough in the Joint Declaration. It would be a sad day if the Government were to renege on a promise they made to the Northern Ireland parties".

The only matter I take issue with on that is that it was not a commitment given to "the" Northern Ireland parties; it was a commitment given, secretly and without agreement, to "a" Northern Ireland party.

The noble Lord, Lord Dubs, continued:


    "It would be a sad day if the House were to say, 'Never mind what undertakings the Government made; we think differently'. The situation in Northern Ireland, with the start of the talks today on the review of the Good Friday agreement, is sensitive. It would be unhelpful if this House were to change the Bill in the way the amendment suggests".—[Official Report, 3/2/04; col. 597.]

We simply do not believe that secret and clandestine arrangements made outside the House—by whoever—override the interests of those of us who come here to legislate for the good of society as a whole. That is why Amendment No. 5 seeks to leave out Clause 5.

The clause relates to the duty of the Director of Public Prosecutions to refer certain matters to the Police Ombudsman. I cannot look at the clause without wondering where the powers of the Police Ombudsman end. Is the Police Ombudsman to be all powerful? Is the Police Ombudsman's influence to override the influence of the command of the Police Service of Northern Ireland; the influence of the Policing Board; the influence of Her Majesty's Inspectorate of Constabulary; and, in a way, the influence of the Office of the Director of Public Prosecutions?

I acknowledge that I have received a letter from the noble and learned Lord, Lord Goldsmith, the Attorney-General, in which he sought to reassure me on this point. However, I am not reassured in any way.

New subsection (4A) in Clause 5(3) states:


    "The Director shall refer to the Ombudsman any matter which . . . appears to the Director to indicate that a police officer . . . may have committed a criminal offence".

If it is believed that a police officer has committed a criminal offence the matter will obviously be referred to the Director of Public Prosecutions, who will make a considered judgment based on the evidence before him. If there is a good chance that he will achieve a conviction, he will take the matter to court. If there is a 50-50 chance, he may decide to take the matter to court. If there is a 40 per cent chance, he will make an assessment.

But let us consider the case where the Director of Public Prosecutions looks at the information and evidence brought before him and decides that there is a 5, 10 or 15 per cent chance—in other words, a case where he would not recommend prosecution through the courts. That should be the end of his responsibility. It is not for him then to ask questions that impinge on the responsibility of the police command, Her Majesty's Inspectorate of Constabulary and the other institutions to which I have referred. Never have the police been so policed as they are now. We should not

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regard the Police Service of Northern Ireland as a body that needs to be passed from one invigilating authority to another.

Let us return to the case where the DPP has decided that the policeman will not be taken to court; that he will not give or require the opportunity, as the case may be, for the policeman to account for his behaviour before a jury of his peers. I have already acknowledged that the Attorney-General has written to me. Whatever he may say, is it not a form of double jeopardy?

When the DPP says, "What has come before me does not appear to me to necessitate prosecution, but I shall relegate the judgment on this case to the police ombudsman", the policeman will not in fact be tried or examined by a jury of his peers. Yet, when that case is passed to the ombudsman, is there not—because of its source, which is the office of the Director of Public Prosecutions—to some extent an obligation on her that would not have been on her had the matter arrived on her desk through the system that she controls? Is there not a greater likelihood of more severity and greater pressure being brought to bear in respect of a policeman? The same situation occurs in terms of new subsection (4A)(a)(ii). That new subsection refers to the possibility that it may appear,


    "to the Director to indicate that a police officer . . . may, in the course of a criminal investigation, have behaved in a manner which would justify disciplinary proceedings".

I have experienced a poorly prepared prosecution coming out of the DPP's office. If that happened, and there is an "inquest" into why a prosecution has failed, is there not likely to be a natural fall-back position, asking the police ombudsman to examine the evidence that the police provided in bringing the prosecution in the first place?

Again, it is very much a matter of who minds the minder. Quite simply, I do not believe—and many people would agree with me—that the DPP's role and responsibility should be that of message boy or girl, as the case may be, for the police ombudsman. We have adequate supervision of policing at every level. To impose this particular clause on top of all that has gone before and all that currently exists is to create double jeopardy, however Government Ministers may try to explain it away. I beg to move.

Lord Glentoran: My Lords, I shall be brief. The Bill would be better without this clause. We have a new police force in Northern Ireland, the PSNI. It has new cultures developing and evolving. In Northern Ireland, we are desperately short of trust between all the organisations: political parties, religions, police forces and various other aspects and parts of the judicial and criminal services. They have links with the British Army. There are huge numbers of interlinks and interfacing organisations, all attempting to cope with extraordinarily difficult levels of crime and terrorism. I do not see what is only a provocative clause achieving anything very much; the Bill would be better off without it.

The Attorney-General (Lord Goldsmith): My Lords, I too can be brief because we debated this clause at some length in Committee and on Report.

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I shall respond first to the points made by the noble Lord, Lord Maginnis. This amendment is not about the powers of the ombudsman; those are not at issue. It is about the Director of Public Prosecutions passing matters across, in certain circumstances, to the ombudsman. It does not touch on what powers the ombudsman has when he or she—presently she—receives that information. It is not about overriding the Director of Public Prosecutions. So far in these debates, I have made two points clear. First, that the director's independence, professionalism and integrity are beyond doubt and, secondly, that the decision on prosecution remains absolutely and completely that of the director, not of the ombudsman. It is only after the director has made a decision, one way or another, that the matter will go to the ombudsman, if it goes at all.

I said that in my letter to the noble Lord, Lord Maginnis, which he was generous enough to acknowledge today. I shall quote what I said to him, so that your Lordships are aware of it too. I wrote:


    "It may help if I make it absolutely clear that decisions as to prosecutions are, and will remain, the responsibility of the Director of Public Prosecutions for Northern Ireland. The responsibility of the Police Ombudsman is to investigate allegations of criminality by police officers or of behaviour that may justify disciplinary proceedings".

That is the disciplinary side.

That takes me to my second point. The noble Lord, Lord Maginnis, was worried that the Director of Public Prosecutions, having made his proper decision about prosecution, might need to ask questions—I noted his words as,


    "impinging on questions of the police command and so forth".

No, after the decision on prosecution is made and executed, it will not be for the director to do that. If it falls within this clause, it would be for him to pass the matter across to the police ombudsman and it would then be for the police ombudsman, if appropriate, to make further enquiries. It may well not be appropriate. That would be for the ombudsman to decide.

The third point that he made is that, because an issue has been put before the ombudsman by the Director of Public Prosecutions, that would somehow give it greater gravity or require her to deal with it with greater severity. I do not see that at all. The ombudsman will be obliged to consider the material before her on the objective basis of that material and its strength, and not on the basis of the provenance of the material. That is particularly so because the director will be passing the information over as a result of a duty—that is the very thing that this clause imposes—not as a result of a judgment by him that the matter is one that deserves consideration by the ombudsman.

The noble Lord, Lord Maginnis, was concerned, on the previous occasion at least, about what he described as double jeopardy. Another matter dealt with in the letter that I wrote to him responded to a question that he sought to ask on the previous occasion. A police officer is not in a different position from that of many other people who belong to professional bodies. After trials of all sorts, people in professional bodies may find themselves referred to their professional bodies or to other disciplinary bodies for consideration. As a barrister, that

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is certainly something that would undoubtedly happen to me. I have experience of other professionals too, such as solicitors and doctors. Police officers are not in that regard in a unique position in any respect.

Moreover, this issue is more likely to arise in circumstances where the officer is not the subject of the investigation but is the investigating officer or is involved in the course of investigating somebody else. If Mr A is on trial, but it appears that the police officer has misconducted himself, there is no question of double jeopardy so far as the officer is concerned. For those reasons, I respectfully suggest that the concerns of the noble Lord, Lord Maginnis, are not well founded.

I heard what the noble Lord, Lord Glentoran, said about there being a shortage of trust in Northern Ireland. As Attorney-General for Northern Ireland, I understand what he means by that. However, I invite him and those on the Benches opposite carefully to consider this: is not one of the reasons for the lack of trust in some parts of the communities a belief, however ill founded, that wrongdoing on the part of particular people is covered up and not passed over? Having a clear obligation on the Director of Public Prosecutions that says, "If you come across this sort of conduct, you must pass it to the Police Ombudsman", gives many people in the community a sense of trust that there can be no question of that sort of material being seen by someone in the DPP's office and covered up simply because they prefer not to expose to daylight any misconduct.

I agree with the noble Lord, Lord Glentoran, that trust is important. This clause will increase trust within the community. I warmly urge him and those on the Benches opposite to consider that, in accordance with his objective of increasing trust, which I share, the right thing to do is to support this clause.

4 p.m.

Lord Maginnis of Drumglass: My Lords, the noble and learned Lord the Attorney-General has outlined very clearly the technical aspects of the matter that I raised. However, he has not clarified at all—it is impossible to clarify—the fact that the DPP is concerned with criminality. Criminality is different from professional inadequacy or carelessness. The people who deal with those things are the ombudsman, Her Majesty's Inspectorate of Constabulary, the police officer's own senior command and the Policing Board. There is no such cross-fertilisation in the case of the solicitors, doctors and accountants that the Attorney-General mentions in his letter. Those professional bodies make a judgment that is separate and apart from the judgment of criminality made by the Director of Public Prosecutions. Hence, I have not had a satisfactory explanation of why, in this specific case, there should be that overlap between criminality and professional inadequacy, misjudgment or carelessness.

If we adopt this clause, we give the Police Ombudsman a second opportunity to find evidence against a policeman which, in turn, may lead to a

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prosecution, because if she finds something within the scope of her investigations that suggests criminality, she is bound to refer the matter back. The situation will be such that, having considered the case against the policeman, and decided that there is no case to answer, the case is passed to the ombudsman and then handed back. The DPP has to make the same judgment on a second occasion. That is absolute nonsense. If it is not double jeopardy, it is what I always believed double jeopardy to be.

I am not satisfied that this clause is beneficial. I should like to seek the opinion of the House.

4.4 p.m.

On Question, Whether the said amendment (No. 5) shall be agreed to?

Their Lordships divided: Contents, 81; Not-Contents, 170.


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