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

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Clause 51: Duties of Commission

95.     Subsections (1) and (2) require the Commission to keep the law of Northern Ireland under review and to have its work programme approved by the Secretary of State. The Commission is required to provide advice and information to and receive remits from Government. With the consent of the Secretary of State, the Commission will provide advice and information to Northern Ireland departments and other authorities or bodies on proposals for law reform or amendment of any branch of the law of Northern Ireland. In order to assist it to fulfil its duties, subsection (2)(f) enables the Commission to obtain information on the legal systems of other countries.

96.     Subsection (3) requires the Secretary of State to consult the Lord Chancellor, the First Minister and deputy First Minister and the Attorney General for Northern Ireland before approving the Commission's programme of work. Subsection (4) requires the Commission in performing its duties to consult with the Law Commissions of England and Wales and of Scotland and the Law Reform Commission of the Republic of Ireland. Subsection (5) requires the Commission to report annually on how it has performed its duties.

Clause 52: Reports etc.

97.     This clause requires the Commission to submit its approved programme, proposals for reform and annual report to the Secretary of State and the First Minister and deputy First Minister and sets out arrangements for the laying of these documents before Parliament and the Northern Ireland Assembly. Thereafter, the Commission must arrange to publish these documents (subsection (4)).

PART 4: YOUTH JUSTICE

AIMS

Clause 53: Aims of youth justice system

98.     The principal aim of the youth justice system is set out in subsection (1): to protect the public by preventing offending by children. This clause provides that all persons and bodies exercising functions in relation to the youth justice system (such as the police, the Director of Public Prosecutions and the courts) must have regard to the principal aim of the youth justice system and to the welfare of children affected by the exercise of those functions (subsections (2) and (3)). Thus, decisions as to whether to prosecute children, how to deal with them if they are found guilty, and the content of any sentence will have to be made having regard to these matters. The "youth justice system" is defined in subsection (4). "Children" is defined in subsection (6) as persons under the age of 18.

NEW ORDERS

Clause 54: Reparation orders

99.     This clause amends the 1998 Order by adding to that Order a number of Articles dealing with reparation orders.

100.     A reparation order is a new sentence available to courts dealing with child offenders in Northern Ireland. The reparation ordered to be made by the child would be either to the victim of the offence or some other person affected by it or to the community at large. It would be for the court to decide to whom the reparation is to be made and what form it should take in any individual case. Forms of reparation will be as varied as the offences in respect of which they are imposed, but reparation could take the form of repairing property in cases of property damage or some worthwhile community work. A reparation order must not require the offender to carryout activities for more than 24 hours and the reparation must be made within 6 months of the order being made (new Article 36C(1)(a) and (3)(b)).

101.     The court cannot make a reparation order unless the offender and, where reparation is to be made to a person, that person consent (new Articles 36B(1) and 36C(1)(b)). The effect of new Article 36B(2) and new Article 36J(8) (see clause 60) is that a reparation order may only be combined with an attendance centre order, probation order or fine. By virtue of new Article 36A(4) and (5), before making a reparation order, the court must obtain a report indicating the type of activity suitable for the offender and the attitude of the victim or victims of the offence to the requirements proposed to be included in the order. The court must also obtain a pre-sentence report before imposing a reparation order, unless it considers it unnecessary in the circumstances (see the amendment to Article 9(3) of the Criminal Justice (Northern Ireland) Order 1996 (S.I. 1996/3160 (NI 24)) (the "1996 Order"), made by paragraph 56 of Schedule 12).

102.     Reparation orders are a "community sentence" within the meaning of Article 2(2) of the 1996 Order (by virtue of the amendment made to that Order by paragraph 55(2) of Schedule 12). New Article 36B(4) requires that the court, before making a reparation order, must state in open court that it is of the opinion that Article 8(1) of the 1996 Order applies and why it is of that opinion. This means that the court must be satisfied that the offence, or the combination of the offence and one or more other offences associated with it, was serious enough to warrant a reparation order. The concept of offences associated with other offences is defined in Article 2(7) of the 1996 Order 4. Provision for dealing with breach of a reparation order and for the revocation or amendment of an order is made in Schedule 10 (which adds a new Schedule 1A to the 1998 Order). Under Article 36C(5) and (6) the Secretary of State may make rules regulating the making of reparation orders. These may regulate the functions of responsible officers (defined in new Article 36D(2)) and limit the number of hours of making reparation on any one day as well as setting the requirement for keeping records of such hours.

    4 Applied by Article 2(5) of the 1998 Order, inserted by paragraph 64(9) of Schedule 12.

Clause 55: Community responsibility orders

103.     This clause amends the 1998 Order to provide for a further additional sentencing option for the courts in relation to children.

104.     Where a child is found guilty of an offence for which the court could (if the offence were committed by an adult) sentence him to a period of imprisonment, the court may make a community responsibility order. Such an order will have two distinct components. The first part will require the offender to attend a specific place for a few hours at a time where they will receive "relevant instruction in citizenship" (new Article 36E(2)(a)). This part must be at least one-half of the total number of hours specified in the order (new Article 36E(5)). "Relevant instruction in citizenship" is defined in new Article 36E(3) and covers personal and social responsibility, the impact of crime on victims and any factors in the offender's life that may be linked to crime. The second part of the order will require the offender to carry out, for a specified number of hours, such practical activities as the responsible officer (defined in new Article 36E(4)) considers appropriate in the light of the instruction given to the offender. The aggregate number of hours specified in the order must be not less than 20 and not more than 40 (new Article 36E(6)). Both aspects of the order must be completed within 6 months of the order being made (new Article 36G(4)). A community responsibility order can only be made with the offender's consent (new Article 36F(1)).

105.     Community responsibility orders are community sentences within the meaning of Article 2(2) of the 1996 Order (by virtue of the amendment to that Order made by paragraph 55(2) of Schedule 12). By virtue of Article 9(3) of the 1996 Order (as amended by paragraph 56 of Schedule 12) the court must obtain a pre-sentence report before making a community responsibility order, unless it considers it unnecessary to do so in the circumstances. New Article 36F(4) requires the court, before making a community responsibility order, to state in open court that it is of the opinion that Article 8(1) of the 1996 Order applies and why it is of that opinion. This means that the court must be satisfied that the offence, or the combination of the offence and one or more other offences associated with it, was serious enough to warrant a community responsibility order. The concept of offences associated with other offences is defined in Article 2(7) of the 1996 Order 5.

    5 See footnote 4 above.

106.     Provision for dealing with breach of a community responsibility order and for the revocation or amendment of an order is made in Schedule 10 (which adds a new Schedule 1A to the 1998 Order). Article 36H allows the Secretary of State to make rules for regulating both the attendance of offenders subject to community responsibility orders and the functions of responsible officers (defined in Article 36E(4)).

Clause 56: Custody care orders

107.     This clause creates a new form of custodial sentence for child offenders, to be known as a custody care order. It does this by adding a number of Articles to the 1998 Order.

108.     A custody care order may only be imposed on a child who has attained the age of 10 but is not yet 14 and who has been found guilty of an offence for which the court could (if the offence had been committed by an adult) sentence him to a period of imprisonment (new Article 44A(1)). At present, if a court wished to impose a custodial sentence on such a child, it would have to make a juvenile justice centre order (under Article 39 of the 1998 Order). A child in respect of whom a custody care order is made would be held in secure accommodation by an "appropriate authority" for a specified period (rather than being held in a juvenile justice centre), and thereafter be under supervision for a further period (new Article 44A(2)). The period of time for which a child would be held in secure accommodation is to be one half of the total period of the order (new Article 44A(6)). The total period of the order is to be 6 months unless the court specifies a longer period, which cannot be more than 2 years (new Article 44A(3)). An "appropriate authority", in relation to a child, is (by virtue of Article 2(2) of the 1998 Order) the Health and Social Services Board or Trust within whose area the child is ordinarily resident or, if that is not known, the Board or Trust within whose area the child is. "Secure accommodation" is also defined in Article 2(2) of the 1998 Order (as amended by paragraph 64(7) of Schedule 12).

109.     New Article 44A(4) provides that a court must not make a custody care order unless, after taking into account the matters which it is required to by Article 37 of the 1996 Order, it has formed the opinion under Articles 19 and 20 of that Order that a custodial sentence would be justified for the offence. Article 37 provides that, when considering the seriousness of any offence, the court may take into account any previous convictions of the offender or any failure of his to respond to previous sentences. It also provides that, when considering the seriousness of any offence committed while the offender was on bail, the court must treat this as an aggravating factor (that is to say, something which makes the offence more serious). Thus a custody care order could not be imposed if the offence, taking into account these further matters, was not serious enough to warrant a custodial sentence.

110.     New Article 44B sets out the legal regime which is to apply to a child held in secure accommodation pursuant to a custody care order. It does this by applying, and modifying where necessary, a number of provisions in the Children (Northern Ireland) Order 1995 (S.I. 1995/755 (NI 2)) (the "1995 Order"). The effect is that the regime which will apply is in a number of respects similar to that which would apply if the child were the subject of a care order within the meaning of Article 49 of the 1995 Order. Nonetheless, while in secure accommodation pursuant to a custody care order, a child is subject to a legal regime distinct from that which applies to a child under a care order. To help keep this distinction clear, new Article 44B(5) provides that any care order made in respect of a child has no effect while the child is held in secure accommodation pursuant to a custody care order. In the light of the custodial nature of this order, provision is made to deal with those children who escape from secure accommodation, and those who assist them or take them away without lawful authority (new Article 44C) and with the taking into custody by the police or other responsible person of the child (new Article 44D). These provisions are comparable to the provisions which apply in respect of a child in respect of whom a juvenile justice centre order is made (see Articles 54 and 42 of the 1998 Order, respectively).

111.     A child in respect of whom a custody care order is made may attain the age of 14 before the period he is to serve in secure accommodation is completed. In the light of this, new Article 44A(8) gives the court, when making the order, a power to provide that such a child shall be detained in a juvenile justice centre for the whole or part of the period after he reaches 14.

112.     The supervision element of a custody care order will be carried out by a probation officer or other person designated by the Secretary of State (new Article 44E(1)). The Secretary of State may make rules regulating this supervision (new Article 44E(4)). Article 44F provides that, in the event of a failure to comply with supervision requirements, a court may impose a fine or a period of detention not exceeding 30 days (new Article 44F(3) and (4)).

113.     Where a child in respect of whom a custody care order is in force is convicted by or before a court of another offence and given a custodial sentence, that court must revoke the custody care order and, in passing sentence for the new offence, take into account the length of time left to run on that order (new Article 44G(1)). If, in respect of the new offence, the court decides to make a further custody care order the effect of new Article 44G(2) is that the order may be of any period not exceeding 2 years and the period of secure accommodation can be whatever portion of the whole the court specifies. Similar provision is made where the court, in sentencing the child for the new offence, makes a juvenile justice centre order (i.e. where the child has reached 14 between the passing of the first custody care order and his conviction for the later offence) (new Article 44G(3)).

YOUTH CONFERENCES

GENERAL

114.     These clauses add a number of new Articles to the 1998 Order. These new Articles create for Northern Ireland a wholly new way of dealing with child offenders and with children who, but for these provisions, would be the subject of proceedings.

Clause 57: Youth conferences and youth conference plans

115.     This clause inserts new Article 3A into the 1998 Order, which makes general provisions about youth conferences. A youth conference is a meeting or series of meetings held to consider how a child ought to be dealt with for an offence (new Article 3A(1)). The meetings will be under the chairmanship of a person to be known as a youth conference co-ordinator (new Article 3A(2)(a)). This person will be given powers to run the meetings effectively (under rules to be made under new Article 3B). The aim of the youth conference will be to devise a youth conference plan which will propose how the child should be dealt with (new Article 3C). The purpose of a youth conference plan is to require the child to carry out specified actions in order to make reparation for the offence, address the child's offending behaviour, and/or meet the needs of the victim. The content of the plan is for the youth conference to decide, from the various options listed in new Article 3C(1), such as apologising, making reparation, or participating in activities designed to address offending behaviour, offer education or assist with rehabilitation. The conference can propose any combination of these options it wishes. The plan must specify the period within which it must be completed, and this must not be more than one year (new Article 3C(4) and (5)).

116.     There are three distinct groups of people who may be involved in a youth conference. The first is the core group without whom the youth conference cannot proceed. These are the youth conference co-ordinator, the child, a police officer and an "appropriate adult" (new Article 3A(2)). "Appropriate adult" means a parent or guardian of the child, but provision is made for the case where such a person is unable or unwilling to participate or the child is in care (within the meaning of the 1995 Order) (new Article 3A(4) and (5)). The second group are those who have a right to participate but in whose absence the youth conference may proceed. This group includes the victim of the offence (new Article 3A(6)). The final group are those who may participate or attend if the youth conference co-ordinator thinks that would be of value (new Article 3A(8)). This could include persons who play a significant role in the child's life (such as a community or religious leader) or people who can provide support to the victim.

117.     A key feature of youth conferences is that neither the child, his parents or guardians, nor the victim can be compelled by any person or the court to participate. In particular, the child must agree to a youth conference being held (new Article 10A(3)(b) (clause 58) and new Article 33A(6) (clause 59)) and must agree to the youth conference plan (new Article 10C(2)(a) (clause 58) and new Article 33E(3)(a) (clause 59)). Neither the fact that a child has made any admission to a Public Prosecutor or agreed to participate in a conference, or withdrawn such an admission or agreement (new Article 10B(2) (clause 58)), nor any matter relating to the youth conference (new Article 3A(9)) may be used in any subsequent criminal proceedings as evidence of the child's guilt.

118.     There are two distinct types of youth conference: diversionary youth conferences (clause 58) and court-ordered youth conferences (clause 59).

Clause 58: Diversionary youth conferences

119.     A reference to a diversionary youth conference could be made by the Director of Public Prosecutions (and only the Director) and would be made at an early stage, either before proceedings had been instituted for the offence or shortly after (new Article 10A(1)). The decision as to whether to refer the child and offence to a diversionary youth conference is for the Director, but he can only make a reference if the child admits that he has committed the offence. If a reference is made no further steps may be taken in relation to proceedings against the child for the offence until the youth conference is completed or terminated (new Article 10A(5)). As the youth conferencing provisions are to be introduced area by area, the Director may only make a reference if he has been notified that the provisions have been brought into force in the area in which the child lives or will live (new Article 10A(4)).

120.     The youth conference co-ordinator would submit a youth conference plan (as agreed by the child, police officer and any other person required to agree by new Article 10C) to the Director. The Director must decide whether to accept the youth conference plan or not. If he accepts it, no further steps in any proceedings against the child for the offence may be taken unless the child fails to comply with the youth conference plan to a significant extent (new Article 10A(7)). The child's compliance is monitored by the youth conference co-ordinator or other person nominated by the Secretary of State, and this person must report to the Director on the child's compliance (new Article 10D). If the Director rejects the plan, or if he accepts it but the child fails to comply to a significant extent, or if the conference is unable to agree a plan, the Director can institute or continue the proceedings against the child in the normal way. For the purpose of calculating any time limits for instituting proceedings, the period taken by the diversionary youth conference and compliance with any youth conference plan is to be disregarded (new Article 10B(4)).

121.     The Director may refer any offence to a youth conference, i.e. there is no restriction on referring even the most serious offences. However, the youth conference can recommend to the Director that the child should not be the subject of a youth conference plan at this stage but that proceedings should be instituted in the normal way (new Article 10A(2)(b)). Equally, the youth conference may recommend that no further action should be taken against the child (new Article 10A(2)(a)).

Clause 59: Court-ordered youth conferences

122.     The second type of youth conference is one ordered by the court. A court-ordered youth conference would occur after a court had found a child guilty of an offence and provides a way to consider how to deal with the child for the offence in question. It is not itself a sentence. Unlike diversionary youth conferences, specific rules are laid down as to when a court must, may and may not refer a child and offence to a youth conference (new Article 33A). The effect of this is that the court must refer a child and offence to a youth conference if the offence in question is anything other than -

  • an offence for which the sentence (in the case of an adult) is fixed by law as imprisonment for life (such as murder);

  • the offence of manslaughter;

  • an offence which is, in the case of an adult, triable on indictment only (i.e. triable only in the Crown Court);

  • an offence which is a "scheduled offence", i.e. an offence listed in Parts 1 to 3 of Schedule 9 to the Terrorism Act 2000;

  • in certain specified circumstances only, an offence for which a diversionary youth conference has been held (new Article 33C(2)); or

  • an offence for which the court intends to grant an absolute or conditional discharge (new Article 33C(5)).

123.     A court may not refer a child and offence to a youth conference where the offence is either one for which the sentence (in the case of an adult) is fixed by law as imprisonment for life, or one of manslaughter, or where it intends to grant an absolute or conditional discharge. In any other case (i.e. where the offence is one of those mentioned in the third, fourth or fifth bullet points above) the court may refer the child and offence to a youth conference, but is not obliged to do so. As the youth conferencing provisions are to be introduced area by area, the court may only make a reference if it has been notified that the provisions have been brought into force in the area in which the child lives or will live (new Article 33C(1)).

124.     New Article 33B sets out the rules to deal with the situation where the child is found guilty of more than one offence. If any of the offences are ones for which the sentence (in the case of an adult) is fixed by law as imprisonment for life or one of manslaughter, the court cannot refer any of the offences to a youth conference (new Article 33B(2)). If the combination of offences includes both one or more for which a court-ordered youth conference is mandatory and one or more for which it is at the discretion of the court, the court may (but is not obliged to) refer all or any of the offences to a youth conference (new Article 33B(3)).

125.     As well as recommending a youth conference plan to a court, a court-ordered youth conference can also recommend that the court simply exercise its existing powers to deal with the child or recommend that a youth conference plan and a custodial sentence be combined (new Article 33A(5)). In each case the child, the police officer and other persons in accordance with new Article 33E must consent to the recommendation. If the conference is unable to agree any recommendation the co-ordinator will report this to the court.

126.     If a court does not refer a case to a youth conference co-ordinator where it has the power to do so, it must give its reasons in open court (new Article 33C(4)).

Clause 60: Youth conference orders

127.     Where a recommendation made to a court by a youth conference includes a youth conference plan (whether alone or in combination with a recommendation that a custodial sentence be imposed) the court may make a youth conference order. This is a new type of sentence for the court. The youth conference order can be in identical terms to the youth conference plan or the court can vary that plan (and include within it anything from the range of options open to the youth conference) (new Article 36J(2)). In either case the child must consent to the youth conference order (new Article 36J(5)) and, where the court varies the youth conference plan, it must consult the youth conference co-ordinator (new Article 36J(6)). A youth conference order cannot be combined with any other court sentence unless the youth conference recommended it be combined with a custodial sentence, in which case the court may also impose any custodial sentence which it could have imposed for the offence (new Article 36J(8) and (9)). It is not bound by the youth conference's recommendation as to what that custodial sentence should be. However, the child must agree to any custodial sentence imposed.

128.     Before making such an order, the court must state in open court that it is of the opinion that the offence was serious enough to warrant it and why it is of that opinion (see new Article 36J(3) and (4) and new Article 36K(1)).

129.     Provision for dealing with breach of a youth conference order and for revocation and amendment of such an order is made by new Schedule 1A of the 1998 Order (added by clause 62 and Schedule 10).

Clause 61: Legal aid for youth conferences

130.     This clause adds two new Articles to the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 (S.I. 1981/228 (NI 8)) which make free legal aid available for attendance by legal representatives at diversionary youth conferences and court-ordered youth conferences.

OTHER PROVISIONS

Clause 63: Extension of youth justice system to 17 year olds

130.     This clause introduces Schedule 11. The amendments made by that Schedule have the effect that persons who have not attained the age of 18 will be treated as children in respect of proceedings against them for criminal offences. At present a "child" is defined as a person who has not attained the age of 17.

Clause 64: Juvenile justice centre orders for 17 year olds

131.     Currently a court cannot make a juvenile justice centre order in respect of a child who has attained the age of 17 (Article 39(1) of the 1998 Order). As a result of the amendments made in Schedule 11 (in particular that at paragraph 17), a court will be able to make such an order in respect of a 17 year old offender. The effect of the amendment made by this clause is to limit the ability of a court to make such an order to cases of 17 year olds who may be particularly vulnerable as recommended by the Review (paragraph 10.72). A 17 year old in respect of whom a court wishes to impose a custodial sentence and for whom a juvenile justice centre order cannot be made by virtue of this amendment will be sentenced to a period of detention in a young offenders centre.

 
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Prepared: 19 December 2001