House of Commons - Explanatory Note
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Clause 65: Consultation about detention

132.     Article 45 of the 1998 Order deals with children who have been found guilty of offences the sentences for which are (in the case of an adult) fixed by law as imprisonment for life (Article 45(1)) and, on indictment, for which an adult could be sentenced to 14 years or more imprisonment and the court thinks no other way of dealing with the offender (i.e. non-custodial) is suitable (Article 45(2)). In the case of offences to which Article 45(1) applies, the child is detained during the pleasure of the Secretary of State; in the case of offences to which Article 45(2) applies, the court specifies the period of detention. But in both cases the Secretary of State directs the place and conditions in which the child is to be detained. The amendment made to Article 45 by this clause requires the Secretary of State, before making such a direction in relation to a child of less than 14, to consult the appropriate authority (i.e. the Health and Social Services Board or Trust for the area where the child ordinarily resides or, if that is not known, for the area where he is).

PART 5: MISCELLANEOUS

THE ROYAL ARMS

Clause 66: Display of the Royal Arms at courts

133.     This clause provides for the removal of the Royal Coat of Arms from within courtrooms. Royal Arms will continue to be displayed on the exterior of existing courthouses where they are already displayed.

VICTIMS OF CRIME

Clause 67: Information about discharge and temporary release of prisoners

134.     The Secretary of State must make a victim information scheme under subsection (1) to give to victims of offences the information specified in subsection (3), that is, the month in which it is anticipated that the offender will be discharged and, where reasonably practicable, the fact that the offender is being considered for temporary release under the Prison Rules 6. The scheme can make provision about the giving of further, more detailed information (subsection (4)). However, information need not be given in the circumstances described in subsection (8), for example, where this would adversely affect the well-being of a victim or threaten the safety of any person.

    6 Rule 27 of the Prisons and Young Offenders Centre Rules (Northern Ireland) 1995 permits the temporary release of eligible prisoners for any special purpose or to enable a prisoner to have medical treatment, to engage in employment, to receive instruction or training or to assist in the transition from prison to outside life.

135.     The information is to be given to the actual victim of the offence. But the Secretary of State may decide that it should also be given to other persons who he considers to have been directly affected by the offence (subsection (5)), such as the immediate family of a murder victim, or a person who was present when a violent offence was committed. The Secretary of State may also decide that the information should not be given to the actual victim but should instead be given to some other person on his behalf (subsection (6)), such as when the victim is a young child or is mentally disabled.

Clause 68: Views on temporary release

136.     This clause makes provision for the rights of victims in relation to the temporary release of prisoners under the Prison Rules. The Secretary of State must have regard to representations made by any person considered by the Secretary of State to be a victim of the offence for the purposes of the scheme made under clause 67 if they are to the effect that the temporary release of the person serving a sentence in respect of that offence would threaten the safety or adversely affect the well-being of the actual victim or a person regarded as a victim by virtue of clause 67(5). Thus, a person who is a victim for the purposes of the scheme by virtue of clause 67(6) may make representations but they must relate to the safety or well-being of the actual victim or a person who is a victim by virtue of subsection (5) of that clause. The victim making the representations must be informed of the decision (subsection (3)).

Clause 69: Supplementary

137.     This clause makes provision supplementary to clauses 67 and 68. Victim information schemes will only cover information about offenders aged 18 or over. Subsection (1) makes it clear that the victim information scheme will cover information about offenders aged 18 or over who were detained pursuant to Article 45 of the 1998 Order (i.e. who were found guilty of grave crimes as children and who are still in detention after they have attained the age of 18) or who were detained in a young offenders centre by the Crown Court (a young offenders centre can hold persons aged between 16 and 24, see Article 7 of the Treatment of Offenders (Northern Ireland) Order 1989).

138.     The effect of subsection (2) is to require the scheme to cover-

  • prisoners who are transferred from a prison in Northern Ireland to a prison elsewhere in the United Kingdom on what is known as a restricted transfer. Restricted transfer has the same meaning as in Part 2 of Schedule 1 to the Crime (Sentences) Act 1997. It means that, despite the transfer, they remain subject to Northern Ireland law in relation to their imprisonment, and

  • prisoners on unrestricted transfer from another part of the United Kingdom, as they will be subject to Northern Ireland law in relation to discharge and temporary release.

139.     The scheme will not cover -

  • prisoners transferred from Northern Ireland to another part of the United Kingdom on an unrestricted transfer, or

  • prisoners on restricted transfer from another United Kingdom jurisdiction, since they are not subject to discharge and temporary release provisions under Northern Ireland law (but remain governed by the law of the other part of the United Kingdom from which they were transferred).

COMMUNITY SAFETY

Clause 70: Community safety strategy

140.     This clause puts a duty on the Secretary of State to publish a community safety strategy for Northern Ireland. "Community safety" is defined in subsection (2). This includes not only the reduction of crime, but also the reduction of anti-social behaviour and the addressing of other factors that affect people's perceptions of safety. Measures to enhance community safety could, for example, include approaches which seek to address the development of criminality among young people, reduce criminal opportunities and act upon the social conditions that sustain crime.

141.     The strategy published by the Secretary of State will identify what Government sees as the key priorities for community safety in Northern Ireland. It will set out how it believes those issues can best be addressed and the means for delivery (which will include the bodies created under clause 71 below). The strategy will also include details of the financial and other resources to be provided by the Secretary of State.

Clause 71: Local community safety partnerships

142.     This clause gives the Secretary of State the power to set up local community safety partnerships. This power would only be exercised after discussion with the Executive on the best way forward. These partnerships will identify local problems and the appropriate solutions, and will work in association with voluntary groups and others in the local community. The membership could include district councils, Health and Social Services Boards and Trusts, Education and Library Boards, the Probation Board, the police and the Northern Ireland Housing Executive, all of whom have statutory functions which have a bearing on community safety. These organisations are not specified in the Bill, since it would be premature to do so as many of them are likely to be affected by the review of public administration launched by the Executive. Accordingly, this clause does not set out the membership of the local community safety partnerships but allows the Secretary of State to determine this by order (subsection (3)).

143.     The functions of the local community safety partnerships are set out in subsection (4). One of those is to prepare and publish a local strategy for enhancing community safety which should take into account both the result of the local research and the Secretary of State's strategy (as published under clause 70 above). The local plan will not be identical to the regional strategy because it will reflect local concerns, but it must fit in with the Secretary of State's strategy.

CIVIL PROCEDURE

Clause 72: Constitution of Rules Committees

144.     Clauses 72 to 74 implement recommendations of the Civil Justice Reform Group which was established by the Lord Chancellor to review civil justice procedures in Northern Ireland and which issued its final report in June 2000.

145.     Clause 72 amends section 54(1) of the Judicature (Northern Ireland) Act 1978 and Article 46(1) of the County Courts (Northern Ireland) Order 1980, respectively to provide for the reconstitution of the Supreme Court and County Court Rules Committees. The newly constituted Committees are intended to be more representative of the legal and litigant communities as a whole and will include two lay persons.

Clause 73: Appeals in small claims cases

146.     At present, the route of appeal from a small claims court is to the High Court by way of case stated on point of law. Appeals by way of case stated from other lower courts or tribunals are to the Court of Appeal. Subsection (2)(a) of this clause amends Article 30(4)(b) of the County Courts (Northern Ireland) Order 1980, replacing references to the High Court with references to the Court of Appeal.

147.     Subsection (2)(b) inserts a new paragraph (ba) into Article 30(4) of the County Courts (Northern Ireland) Order 1980 to provide for an appeal from a small claims court to a county court judge.

148.     Subsection (2)(c) amends Article 30(4)(c) of the County Courts (Northern Ireland) Order 1980 to take account of the new right of appeal and ensure that no further right of appeal is available.

149.     Subsection (3) inserts a new paragraph (4A) into Article 30 of the County Courts (Northern Ireland) Order 1980 to prescribe the time limits for, and powers of the judge on, the new right of appeal.

Clause 74: Time limit for cases stated by county court

150.     This clause amends Article 61(2) of the County Courts (Northern Ireland) Order 1980 to change the time limit for appealing from a county court judge to the Court of Appeal by case stated on a point of law from fourteen days to twenty one days unless the county court orders a shorter period.

LEGAL AID

Clause 75: Exceptional legal aid

151.     This clause adds a new Article to the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 (S.I. 1981/228 (NI 8)) (the "1981 Order") which gives the Lord Chancellor the power to direct that legal aid is to be available in proceedings for which legal aid is not otherwise available under that Order or for which assistance by way of representation may not be approved under Article 5 of the Order. It thus provides a power to ensure that legal aid is available in exceptional cases which would otherwise not be covered by the general provisions of the 1981 Order.

Clause 76: Proceedings before a coroner

152.     This clause amends Schedule 1 to the 1981 Order in so far as it relates to the provision of legal aid for proceedings before a coroner. At present, legal aid is not available under the 1981 Order for proceedings before a coroner. Schedule 1 to the 1981 Order lists the proceedings for which civil legal aid is available. The reference in that Schedule to proceedings before a coroner has not been brought into force: this clause deletes that reference. The new power to grant exceptional legal aid (see clause 75) will extend to proceedings before a coroner.

COURT SERVICE

Clause 77: Power to abolish the Court Service

153.     The Criminal Justice Review recommended that in the event of the devolution of justice matters, a Department of Justice should be created with responsibility for all justice functions (para 15.62). This would not include those Northern Ireland Court Service ("Court Service") functions which are being devolved elsewhere, for example judicial appointments (see clause 3). The Review envisaged the remaining functions being delivered through a Next Steps agency. This clause and clause 88(1) provide for the Lord Chancellor to make an order transferring the Court Service's functions and allows this transfer to take place at any time. It provides for the Court Service to be abolished as part of this process.

COURT SECURITY

Clauses 78-80: Court security and court security officers

154.     Clause 78(1) imposes a duty on the Northern Ireland Court Service to take all reasonable steps to provide security at court-houses. Clause 78(2) and (3) provide that court security officers will be employed at each courthouse. These officers may be either members of the Court Service's own staff designated as such, or employees of other organisations with which the Court Service has entered into arrangements for the provision of court security officers under section 69 of the Judicature (Northern Ireland) Act 1978. Clause 79 sets out the powers and duties of court security officers. Clause 80 creates two new offences: first, an offence of assaulting a court security officer in the execution of his duty, which is punishable by a fine not exceeding level 5 on the standard scale or 6 months imprisonment or both, and secondly, an offence of resisting or intentionally obstructing a court security officer, which is punishable by a fine not exceeding level 3 on the standard scale. The present maximum fine on those scales is £5,000 and £1,000 respectively.

PART 6: SUPPLEMENTARY

Clause 81: Excepted matters: judicial office-holders

155.     At present, the Northern Ireland Assembly cannot legislate about the appointment and removal of specified judicial office holders: it is an "excepted" matter under the Northern Ireland Act 1998. This clause provides for the appointment and removal of judicial office holders to become a "reserved" matter, in preparation for the transfer of this power from Westminster to the Northern Ireland Assembly by order once responsibility for justice matters is devolved as recommended by the Review 7. Remuneration, superannuation and other terms and conditions of holders of these judicial offices (other than those relating to removal from office) are, however, to remain an "excepted" matter.

    7 See paragraph 15 of Schedule 3 to the Northern Ireland Act 1998

Clause 82: Assembly Acts about the judiciary, law officers and prosecutions

156.     Subsection (1) amends the Northern Ireland Act 1998 to add to the list of entrenched enactments in section 7 of that Act clause 1 of this Bill (judicial independence) and this clause. These provisions of the Bill cannot therefore be modified by the Assembly or by a Minister of the Assembly.

157.     The effect of subsection (2) is to require that, after devolution of justice functions, any Bill of the Northern Ireland Assembly that deals with certain matters relating to the judiciary, prosecution service or Attorney General for Northern Ireland will require cross-community support. Section 4(5) of the Northern Ireland Act 1998 defines cross-community support as -

  • the support of a majority of members voting, a majority of the designated Nationalists voting and a majority of the designated Unionists voting; or

  • the support of 60 per cent of the members voting, 40 per cent of the designated Nationalists voting and 40 per cent of the designated Unionists voting.

Clause 87: Transitionals and savings

158.     Subsection (2) ensures that the current holders of the posts of Director and Deputy Director of Public Prosecutions for Northern Ireland will continue to hold office when the provisions relating to the Public Prosecution Service for Northern Ireland are commenced.

159.     If, when clause 32 (conduct of prosecutions) comes into force, it is not practicable for the Director of Public Prosecutions to have the conduct of criminal proceedings for all indictable and summary offences, subsection (4) of this clause allows him to take over only the conduct of proceedings which it is practicable for him to do so until such a time as he can carry out all such prosecutions.

160.     Subsections (8) and (10) ensure that no one can be dealt with by the making of a reparation order or community responsibility order nor can a child and offence be referred to either a diversionary youth conference or a court-ordered youth conference in relation to an offence committed before the commencement of the relevant provisions.

Clause 88: Statutory rules

161.     This clause provides for orders, regulations or schemes made by either the Lord Chancellor, the Secretary of State or the First Minister and deputy First Minister to be made by statutory rule.

Clause 89: Extent

162.     This clause makes it clear that most of the provisions of the Bill will apply only to Northern Ireland (subsection (1)). The exceptions, which are listed in subsection (2), are the renaming of resident magistrates (clause 9), the transfer of functions of justices of the peace (clause 11 and Schedule 4) and the establishment of the office of Advocate General for Northern Ireland (clause 23(1) and 28(1)). Any amendments effected made by the Bill will have the same extent as the provisions they amend (subsection (3)).

SCHEDULE 1: LISTED JUDICIAL OFFICES

163.     This Schedule lists the offices to which people can only be appointed if they are selected by the Judicial Appointments Commission and from which they can only be removed following a recommendation by a tribunal convened under clause 8. It is brought into effect by clause 2.

SCHEDULE 2: JUDICIAL APPOINTMENTS COMMISSION

164.     This Schedule sets out provisions about the members of the Judicial Appointments Commission and the arrangements for its staffing and procedure. Paragraph 1 provides for judicial members to remain on the Commission for as long as they hold their judicial office. Judicial members may resign or may be removed from office by the First Minister and deputy First Minister on the advice of the Lord Chief Justice.

165.     Paragraph 2 sets out the term of office of non-judicial members, including maximum periods of appointment and resignation and dismissal criteria. Paragraph 3 requires the Commission to pay non-judicial members remuneration as decided by the First Minister and deputy First Minister. Paragraph 4 sets out the staffing arrangements for the Commission. Sub-paragraph (3) provides for pensions for Commission staff.

166.     Paragraph 5 requires the Commission to publish an annual report at the end of each financial year. The report must include statistical information about the gender, age, ethnic origins, community background and geographical connection of applicants for judicial posts. A copy of the report must be sent to the First Minister and deputy First Minister, laid before the Assembly and then published.

167.     Paragraphs 6 and 7 enable the First Minister and deputy First Minister to make grants to the Commission and require the Commission to keep proper accounts and financial records.

168.     Paragraphs 8 to 10 make provision for the Commission to set up committees and sub-committees and regulate their procedure. Committees and sub-committees may include persons who are not members of the Commission. Paragraphs 11 and 12 provide for the Commission to delegate its functions to a committee. Committees may further delegate to sub-committees. When the power to select a person for appointment is delegated then the committee or sub-committee must include a lay person.

169.     Paragraphs 13 to 17 deal with miscellaneous matters including the status of the Commission.

SCHEDULE 3: APPOINTMENT TO LISTED JUDICIAL OFFICES

170.     Schedule 3 transfers to the First Minister and deputy First Minister, acting jointly, the power to make appointments or recommendations for appointment, to listed judicial offices. This Schedule is not intended to take effect until after the devolution of justice functions when the Judicial Appointments Commission is set up.

SCHEDULE 4: FUNCTIONS OF JUSTICES OF THE PEACE

171.     Clause 11, subsection (1) provides for the transfer of functions of justices of the peace to lay magistrates, subject to clause 11, subsection (2) and to Schedule 4. Paragraph 1 lists the functions which will continue to be exercised by justices of the peace in Northern Ireland; paragraph 2 deals with functions which may be discharged by either justices of the peace or lay magistrates; and paragraph 3 sets out functions of justices of the peace which will be exercisable only by District Judges (Magistrates' Courts) after the creation of the office of lay magistrate. Schedule 4 also contains consequential amendments: paragraphs 4 and 5 enable the Lord Chancellor to amend the provisions on the transfer of functions; paragraph 6 provides for references to justices of the peace to be construed as references to lay magistrates, so far as appropriate in consequence of the provisions of clause 11 and this Schedule; and paragraphs 7 to 30 make specific amendments.

SCHEDULE 5: TRANSFER OF FUNCTIONS TO LORD CHIEF JUSTICE

172.     This Schedule lists the functions of the Lord Chancellor in relation to the operation of the courts which will transfer to the Lord Chief Justice following the devolution of responsibility for justice matters to the Northern Ireland Assembly.

SCHEDULE 6: OFFICE-HOLDERS REQUIRED TO TAKE JUDICIAL OATH

173.     This Schedule lists the offices for which new appointees will be required to take a new oath or make the new affirmation and declaration.

SCHEDULE 7: FUNCTIONS OF ADVOCATE GENERAL

174.     The changes in this Schedule are not intended to take effect until after the devolution of justice functions and the appointment of a local Attorney General for Northern Ireland.

175.     Paragraph 1 of the Schedule amends the Northern Ireland Act 1998 to allow the Advocate General for Northern Ireland to refer Bills of the Northern Ireland Assembly to the Judicial Committee of the Privy Council if he is unsure if they are within the legislative competence of the Assembly. The Attorney General for Northern Ireland will continue to have the same power.

176.     Paragraph 2 makes amendments to the Northern Ireland Act 1998, in order to involve both the Advocate General for Northern Ireland and the Attorney General for Northern Ireland in the institution and defence of proceedings in relation to devolution issues. Paragraphs 3 and 4 amend corresponding provisions in the Scotland Act 1998 and the Government of Wales Act 1998 to substitute references to the Attorney General for Northern Ireland.

177.     Paragraph 11 makes arrangements for the carrying out of the functions of the Attorney General in the event that the operation of the Northern Ireland Assembly is suspended under the Northern Ireland Act 2000 after the devolution of justice functions. If that were to happen, the Attorney's functions would be exercised by the Advocate General for Northern Ireland for the duration of the period of suspension. If, at any stage after devolution the post of Attorney General for Northern Ireland is vacant, paragraph 12 requires the First Minister and deputy First Minister to consult the Advocate General before filling the post temporarily.

178.     Under paragraph 14, it is for the Advocate General for Northern Ireland to appoint the Crown Solicitor for Northern Ireland. The holder of this post represents the Crown in civil matters in Northern Ireland. As many of these fall within the "excepted" field the power to appoint an individual to hold this post should be for the Advocate General for Northern Ireland to exercise.

179.     Under paragraphs 18 to 20 it will become the responsibility of the Advocate General for Northern Ireland to appoint special advocates to represent prisoners in front of the Sentence Review Commissioners on those occasions where the prisoners themselves are not allowed to appear. Special advocates are also used in tribunals convened under section 91(7) of the Northern Ireland Act 1998.

180.     Paragraphs 21 to 23 make changes to the Terrorism Act 2000 so that it will be the responsibility of the Advocate General for Northern Ireland to determine the mode of trial for proceedings for a scheduled offence. These are tried in Northern Ireland by means of the Diplock court system. It would be for the Advocate General for Northern Ireland to determine in each case whether the context of the offence indicates that it should be tried by a judge sitting alone or by a judge with a jury. If he determines that it should go through the more standard procedure, the Advocate General for Northern Ireland would then issue a certificate to remove that case from the Diplock system. The prosecution would then proceed as with other, non-scheduled offences and be purely the responsibility of the prosecution service from that point onwards.

181.     Paragraphs 24 to 32 make changes to those offences which currently require the consent of the Attorney General before a prosecution can be undertaken. It would not be consistent with the independence of the new prosecution service for the local Attorney to make decisions as to whether prosecutions should go ahead, particularly when the Criminal Justice Review Group recommended that the local Attorney should have no power to direct the prosecutor on individual cases (paragraph 4.162 of the Review). Accordingly, the power of the Attorney to consent to prosecutions will be transferred to the Director of Public Prosecutions, except in those cases when the offences are related to "excepted" matters (as set out in Schedule 2 to the Northern Ireland Act 1998). The provisions in these paragraphs transfer the power to give consent in cases related to "excepted" matters to the Advocate General for Northern Ireland.

 
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Prepared: 19 December 2001