Joint Committee on Statutory Instruments Fifth Report


Memorandum by the Northern Ireland Court Service


1. This Memorandum is submitted at the request of the Joint Committee on Statutory Instruments in response to their letter of 16 January 2001, in which they ask for a memorandum on three points arising in connection with the above Rules. This Memorandum addresses those points in the order in which they appear in the Committee's letter.

    (i)  The new rule 5(2)(aa)(iii) inserted by rule 2 refers to an appellant who is "claiming for damages in respect of a judicial act which section 9(3) of the Human Rights Act 1998 applies". Is this intended to include a claim for damages in respect of a judicial act where no allegation is made that the act was done in good faith?

2. Section 9(3) of the Human Rights Act 1998 provides that in proceedings under that Act in respect of a judicial act done in good faith, damages may not be awarded otherwise than to compensate a person to the extent required by Article 5(5) of the Convention (Right to Liberty and Security). The new rule 5(2)(aa)(iii) requires an appellant seeking damages in the circumstances envisaged by section 9(3), to provide notice of that fact and details of the judicial act complained of. This rule is intended to ensure that the Court is alerted to a potential claim for damages in such circumstances as soon as possible.

3. As the rule specifically refers to a judicial act to which section 9(3) applies, it does not apply to a judicial act alleged to have been done in bad faith. It is considered that where an appellant is alleging that a judicial act of the lower court was done in bad faith, this will be apparent to the Court from the information required to be given by new rule 5(2)(aa)(i) in the notice of grounds of appeal or application. Additional provision to new rule 5(2)(aa)(i) was considered appropriate in the case of a judicial act done in good faith because damages would not normally be awarded in respect of such an act. Any claim for damages related to that act therefore should be separately and specifically drawn to the Court's attention.

    (ii)  In new rule 5(2)(ab), should "(a)(i)" read "(aa)(i)"?

4. The Committee is correct in its view that the reference to sub-paragraph "(a)(i)" in new rule 5(2)(ab) should in fact read sub-paragraph "(aa)(i)". The Court Service apologises for the unsatisfactory drafting in this provision and undertakes to correct the error at the earliest opportunity.

    (iii)  Given the wording of rule 21(1) of the 1968 Rules, explain the meaning of the new sub-paragraph (d) inserted by rule 2(c).

5. Paragraph (d) was added to rule 21(1) of the 1968 Rules as it was considered that sub-paragraphs (a)-(c) did not cover all of the people to whom notice of a declaration of incompatibility would need to be given. Paragraph (d) is intended to:

      (a)  ensure that notice is served on the prosecution and on any Minister of the Crown, Northern Ireland Department or any other person who has been joined to the proceedings under section 5(2) of the Act (paragraph (d)(i)); and

      (b)  cover the rare circumstance where the Court, under Rule 20A of the 1968 Rules, has notified the Crown that it is considering making a declaration of incompatibility but the Crown has not been joined as a party to the proceedings (paragraph (d)(ii)).

This mirrors the provision made by rule 15(e) of the Criminal Appeal Rules 1968 (S.I. 1968 No.1262), as amended by rule 2(c) of S.I. 2000/2036, and which applies in England and Wales.

6. On reflection, it is considered that it would have been better drafting to have inserted the new sub-paragraph (d) as a new paragraph (1A) into Rule 21, thereby distinguishing more clearly between the requirements in respect of notice of final determinations generally.

January 2001

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