Justice (Northern Ireland) Bill

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Mr. Mallon: I must state that the Minister made a powerful argument. He made three convincing points—at least they began to convince me. The first was about the power of the ombudsman to involve himself. The second, which was valid, was about the constraints that the amendment might put on the DPP with regard to the action that he could take—not with regard to referrals but in terms of his position. The third point was about the Policing Board. Those three points, together with the point raised by the hon. Member for North Down, lead me, reluctantly and against my better judgment, to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 35 ordered to stand part of the Bill.

Clause 36

Information for Director

Mr. Blunt: I beg to move amendment No. 178, in page 22, line 2, at end insert—

    '(6) Where the Director is not satisfied with the information provided to him by the Police he may refer the case to the Police Ombudsman for investigation.'.

This is a philosophically not dissimilar amendment to the ones that we have just debated, tabled by the hon. Member for Newry and Armagh, in that it gives the Director of Public Prosecutions power to invite the police ombudsman to conduct an investigation. Clearly, there must be some passage of information from the police to the director in order for him to be able to put a prosecution together. He may not be satisfied that he is getting the necessary information from the police. It is idle to conjecture about all the circumstances in which that might arise, which might

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include the professional incompetence of some policemen in putting briefs together, or relate to wider problems of the police obstructing a prosecution for reasons of their own.

These matters may be covered in other legislation, so I shall listen carefully to the Minister's reply. However, it struck me on reading the Bill that the DPP should have some form of power at his disposal to be able to ferret out information, if he is not getting it from the police, and that it would be difficult for him to do that directly. Although it is essential that the relationship between the police and the DPP works well, individual circumstances may exist when it does not work well.

I do not imagine that the DPP would use the power that the amendment would give him with anything other than the greatest hesitation, given the damage that it would do to the relationship between the relevant part of his office and the part of the police force that was investigated. The amendment would simply reinforce the director's position, giving him the power to search for information when he thought that he was not being properly served by the police.

As with the amendments tabled by the hon. Member for Newry and Armagh that we have just debated, this is in no sense meant to be an anti-police measure. It is merely meant to give the DPP the opportunity to have some investigatory force to go after information, if circumstances require. If the power exists elsewhere within the system, I am content to withdraw the amendment.

Mr. Browne: I am happy to reassure the hon. Gentleman that, in the Government's view, what he seeks to do is achieved elsewhere in the Bill. The debate on the previous group of amendments concentrated on the mechanism that is used to give the DPP the power to refer matters for investigation to the police ombudsman, if the director considered that they would amount to a disciplinary offence. That is achieved by an amendment to section 55 of the Police (Northern Ireland) Act 1998, which is contained in clause 35(4). The mechanism is to add the DPP to a shortlist of bodies, people , the Secretary of State and the Policing Board, thus empowering him at his discretion to report matters to the ombudsman for investigation.

If that reassurance is sufficient for the hon. Gentleman, perhaps he can be persuaded to withdraw the amendment. I understand that in some circumstances the DPP may think that he does not get sufficient information, but I am not sure that it is the intention to use the ombudsman as a police service to investigate the individual circumstances of an alleged offence. That would be entirely inappropriate.

The ombudsman can investigate the failure of the police to carry out their duty. That is how the Bill is structured. One would hope that, if there ever were such a situation—I cannot imagine it developing, but I understand the hon. Gentleman's desire to cover all bases—the complaint would work in the following way. If a report to the ombudsman were upheld, the

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police would be compelled to carry out an investigation and provide information in relation to the reported offence to the DPP.

6 pm

The amendment suggests that if the police are not prepared to investigate and provide information to the DPP, an ombudsman should be used to do that in a normal policing investigative role. That is not what the hon. Gentleman wants, so he should find comfort in clause 35(4) and its interaction with section 55 of the 1998 Act. If he does not, I shall listen to him carefully again as to what role he thinks the ombudsman can play in an individual case.

Mr. Blunt: I have found comfort, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Mr. Blunt: It is appropriate to discuss disclosure in the light of the Bill. There is wide concern, especially among the legal profession in Northern Ireland, that a duty of disclosure will be placed on the police and the DPP to give information to the defence. A submission from the Law Society and comments by the Criminal Bar Association showed that those organisations were anxious that the duty should appear in the Bill. If it were to be included, it would be in the clause.

The review and the Government's response to it both kick the issue off to a law commission. Paragraph 4.143 of the review is about disclosure, and concludes that

    ''we believe that the present disclosure provisions should be reviewed and suggest in Chapter 14 that this might be one of the matters for consideration by a Law Commission.''

The subject is clearly of concern to the profession, and it has obviously been difficult to phrase a requirement on disclosure that could appear in the Bill satisfactorily. I have not been able to do so—I have not had sufficient time or resources—or I would have tabled an amendment on the subject. However, it is appropriate to flag up the issue in this clause stand part debate, and to ask the Government whether they actively considered a formula to meet the disclosure requirement sought by the legal profession.

There may be reasons for the Government to continue to resist such a formula, even after a law commission has considered it. However, it is appropriate to ask them where they stand on disclosure, as they seem to have taken a rather neutral position. The review found it difficult and kicked it off to a law commission. When matters are kicked off to commissions of any variety—law, royal or anything else—the ball disappears into extremely long grass. Frequently, it never returns to visibility. What is the Government's thinking on disclosure?

Mr. Browne: The hon. Gentleman rightly points out that the clause is about the orderly circulation of court papers. Like all other parts of the Bill that relate to the criminal justice system in Northern Ireland, it is about what lawyers call procedure. Issues to do with

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disclosure are in a different body of the law: that of evidence. No part of the Bill deals with the law of evidence.

That does not mean that we cannot mention disclosure in the context of information, as the hon. Gentleman appropriately did with reference to paragraph 4.143 of the review. I am not privy to the review's discussions on the issue, but I sincerely doubt whether a review that involved the passing of information could take place in any jurisdiction without the legal profession raising disclosure. Even with reference to full disclosure, I am sure that the legal profession would raise the subject for discussion. In practice, it is a complex aspect of the law.

The review did not consider disclosure, but I do not accept that it ducked the issue. It flagged it up as something for consideration by those with expertise. We should bear in mind the fact that the review recommended that such people be formed into a commission, as they had the skills to consider such complex matters. In the face of that recommendation, it is incumbent on the Government to set up a law commission to do such work. The Secretary of State will then remit certain matters to that law commission to consider, and the Committee can rest assured that when priorities are set for it, issues specifically referred to by the review such as disclosure will be considered for priority.

Other bids for priority will be made from other sections of the community of Northern Ireland. I can guarantee that at least three or four bids will be made from lobbies to do with children, suggesting that a law commission address the welfare of children as a matter of priority. The Secretary of State will then need to apply some consideration as to what is priority. That is the Government's position. It is not a position of no action—

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Sitting suspended for a Division in the House.

6.22 pm

On resuming—

Mr. Browne: I shall conclude my remarks on the case advanced by the hon. Member for Reigate. The rules of disclosure are important, which is why they occupied the review group's time. It is the Government's intention that they will be a priority for a law commission when one is convened, subject to other priorities. I can guarantee that whatever recommendations are made will be complex and will require extensive consultation, not only with the legal profession. At the end of that process, I hope that there will be an opportunity to revise the rules of disclosure in Northern Ireland, and that the Assembly will be able to do that work.

Question put and agreed to.

Clause 36 ordered to stand part of the Bill.

Clause 37 ordered to stand part of the Bill.

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Prepared 5 February 2002