Justice (Northern Ireland) Bill

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Mr. Browne: New clause 2 would impose a more general duty on the prosecution service to give reasons. In each case where a prosecution has not been instituted or has been halted, the new clause would require a copy of the reasons for that decision to be passed to the Attorney-General, who could make those reasons available on request to any person who had a valid interest in the case.

Paragraph 4.167 of the review deals with the issue raised by the hon. and learned Member for Harborough (Mr. Garnier). It states:

    ''We suggest that those regarded as having a legitimate interest in a case be confined for the most part to victims and their families.''

Mr. Garnier: I want to return to the Minister's point about the code under clause 38. Without wishing to undermine the thrust of my hon. Friend's argument about the pressing need for victims to be taken into account in the prosecution process and the administration of justice, I accept the Minister's suggestion that the code is a more appropriate place to set out in writing provisions dealing with those concerns. However, will the Minister say whether at least a draft code will be ready for consideration by Parliament before the Bill completes its passage through both Houses? Obviously, the Minister and his team have been thinking about the Bill for some time because they have considered the review and the reply to it, so I dare say that they might have some idea about the contents of the code, especially relating to information to be given to victims by the Public Prosecution Service.

Mr. Browne: This is a detailed provision, which will have wide-ranging effects. It has caused significant additional work for officials in the Northern Ireland Office and for the DPP. I know that work on several aspects of the code is continuing, but, unfortunately, I do not know the position off the top of my head. I undertake to write to the hon. and learned Member about that.

Mr. Garnier: Given that we are having a brief exchange about the code now, it might be encouraging if the Minister would undertake to consider the points made by my hon. Friend the Member for Reigate in support of his amendments.

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Mr. Browne: I have no difficulty in giving such an undertaking. Those issues will exercise the mind of the director responsible for drawing up the code. That is why I referred to it in the context of my response to the amendment proposed by the hon. Member for Reigate. I cannot say when the code will be available in draft or any other form—it is not my direct responsibility to produce it—but I can say that the issues that the hon. Gentleman raised will be considered by the director who would, I am certain, have done so in any event.

Mr. Garnier: I do not know what plans my hon. Friends on the Front Bench have for the amendment. However, if needs be I shall encourage the Committee to divide in order to keep the Minister up to the mark so that, when he looks back on this day, he will be encouraged to do what he ought to do.

Mr. Browne: I assure the hon. and learned Gentleman that he does not need to divide the Committee to keep me up to the mark; I have a track record. Although I have not been a Minister for long, I have not failed in my duty when it comes to giving undertakings. However, if he feels that he must do that, it is a matter for him.

I was dealing with new clause 2 and had set out what I understood to be its import. The debate has made it clear that the issue of giving reasons for non-prosecution is complex, and that is borne out by the number of occasions on which it is dealt with by the review. Accordingly, Government policy in that area has been set out in detail in the criminal justice review implementation plan. The Government's position is that the interests of the victim must be balanced against other interests, such as those of the witnesses, and concerns such as damage to the reputation of or other injustice to an individual, the danger of infringing on the presumption of innocence and the risk of jeopardising the safety of individuals. Committee members will understand that the latter is particularly pressing in certain cases in Northern Ireland.

In each individual case in which reasons are requested, the prosecution service must come to a view as to whether it is possible to give reasons for non-prosecution. Where a proper balance can be struck between the concerns that I have outlined, the Director of Public Prosecutions will endeavour to answer a request for reasons for non-prosecution. The position is broadly similar to that in England and Wales and in the Republic of Ireland—in fact, I think that it is identical to that in the Republic. The review group acknowledged the importance of coming to such a balanced judgment. I am grateful to my hon. Friend the Member for Newry and Armagh for pointing out the respective provisions and to the hon. Member for Reigate for rehearsing them.

Recommendation 238 of the review acknowledges that consultation with victims should be

    ''a matter for the professional judgement of the prosecutor''.

The Government agree with that. However, notwithstanding the view of the hon. Member for Reigate, the amendments remove the scope for the

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prosecutor to apply his professional judgment in such cases, and they are unnecessarily restrictive. More importantly, the full consequences could be regarded as contradictory to some other important aspects of the review. For example, new clause 2 would give the Attorney-General an operational role in the prosecution of offences.

I accept that neither the hon. Member for Reigate nor my hon. Friend the Member for Newry and Armagh will go to the death on the exact wording, and that they argue the principle. However, that operational role would contravene and undermine the relationship of oversight that the review envisaged.

Mr. Mallon: In relation to the interests of justice and the public interest, do not the role and function lie with the Attorney-General anyway? Is not the responsibility his? If so, how is that to be viewed as an operational involvement in every circumstance?

Mr. Browne: My hon. Friend makes an important point. A distinction must be understood. The prosecutor must decide whether prosecution will lead to conviction, which involves an assessment of the sufficiency of credible and reliable evidence. Then there must be an assessment of the public interest in relation to an individual case, and a general assertion that a law officer has responsibilities and accountabilities in the public interest or the interests of justice.

The Government believe that the decision in relation to public policy and sufficiency of evidence is for an independent prosecutor. To superimpose a role on the Attorney-General would involve him directly in the issues and the transfer of information in certain circumstances. It is an operational role for the Attorney-General to decide whether it is appropriate to transfer information in the context of individual cases. Doing so would not be to exercise a general public policy role or a general role that the Attorney-General may have in relation to his accountability to the Assembly.

Mr. McWalter: My hon. Friend makes a powerful point, but does he agree that a general duty on the Attorney-General or the DPP to have due regard to such matters could be included in the Bill? It could be made explicit rather than implicit.

Mr. Browne: I accept my hon. Friend's point, which covers the important principle of the argument in which we have all engaged. By reference to the Government's position, which has been in the public domain since the implementation plan was drafted, I have sought to show that there could be another amendment in a different context, perhaps with other arguments deployed for or against, but I am trying to tackle the new clause.

My final point is comparatively short. The amendment covers only one aspect of interest to victims, which is the giving of reasons. When we consider later provisions, we shall have an opportunity to consider other steps that have been taken, to which we have already alluded, that set a general context for improving the position of victims in the context of the

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criminal justice system. However, I regret to say to my hon. Friend the Member for Newry and Armagh and to the hon. Member for Reigate that, in the current context, and bearing in mind that there is that general context in the Bill, I am unable to accept the amendments.

5.15 pm

Mr. Blunt: I am distressed by the Minister's rejection of the amendments, because they provide an opportunity to advance victims' rights in a particular respect. I fully accept that, in other respects, the Bill does exactly that—especially in relation to youth justice and the passage of information about the release of prisoners. However, it seems extraordinary that the Government are prepared to resist a general tendency at a stage in the process that is most invisible to victims, when the prosecutor is assembling the case and the case simply disappears beyond the victim's purview. The victim has gone to the police and made a complaint and, almost certainly, a witness statement, and will be expecting something to happen. The victim will know that someone is being questioned and on the receiving end of the police and prosecution authorities for the offence, but he, or she, has no rights to that information under the Bill.

We are not asking the Government to do something completely new. The Minister said that such a proposal would make the situation analogous to that of the Irish Republic, but the review states:

    ''We note that in the United States District Attorneys tend to be very open in explaining their approach in cases of major public concern, perhaps in part because of their elected status. The experience in Germany and the Netherlands has also shown that it is possible to formulate a system of giving reasons without prejudicing the cause of justice.''

We would not prejudice the causes of justice or public interest, as they are the tests in my amendments and the new clause.

 
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