Section 11: Bail under section 67 of the Terrorism Act 2000

32.     This section and Schedule 2 (as introduced by subsection (2)) deal with the enforcement of bail granted under section 67 of the Terrorism Act 2000 (c. 11) ("the 2000 Act") (section 67 forms part of the temporary provisions in part VII of that Act). The intention is that those granted bail under section 67 should, as regards enforcement, be put in the same or a similar position to those who are granted bail for non-scheduled offences. Subsection (1) creates a duty to surrender to custody for those granted bail in scheduled cases under section 67 of the 2000 Act. The duty is either a duty to surrender to the custody of a court, or to surrender to the custody of the governor of a prison (the latter duty is to cover those released on compassionate bail) (subsection (3) refers).

33.     Subsection (4) provides that section 11 and Schedule 2 will cease to have effect on the same day as part VII of the 2000 Act - 19 February 2006 - or such earlier date as the Secretary of State may by order appoint. The power to make an order with the effect that the provisions will cease to have effect is included to cover the situation in which section 67 ceases to have effect before 19 February 2006 either by virtue of an order under section 112(2) of the 2000 Act or because it is allowed to lapse under section 112(1) of the 2000 Act.

Section 12: Bail to which Part II of the Criminal Justice (Northern Ireland) Order 2003 applies

34.     Subsection (1) of this section amends the provisions on bail in respect of non-scheduled cases contained in the Criminal Justice (Northern Ireland) Order 2003 (SI 2003/1247 (N.I. 13)) ("the 2003 Order"). Subsection (2) extends the definition of surrender to custody to include surrender to the custody of a prison governor in order to cover those released on compassionate bail.

35.     Subsection (3) amends Article 5 of the 2003 Order (offence of absconding by person released on bail) so that the offences can be tried both summarily and on indictment (at the moment the offences are summary only). This will bring the treatment of these offences in line with the new offences being created in relation to scheduled offences by paragraph 1 of Schedule 2. The penalty for conviction on indictment will be up to 3 years imprisonment or a fine or both. The penalty on summary conviction will be up to 12 months imprisonment or a fine not exceeding the statutory maximum or both. Subsection (4)(a) amends article 6(3) of the 2003 Order so that the power of arrest without warrant in Article 6(3) will only apply in relation to those released on bail who are under a duty to surrender to the custody of a court.

36.     Subsection (4)(b) creates a new power of entry, subject to a warrant being granted by a Justice of the Peace, to enable police officers to enter any premises in order to carry out an arrest under Article 6(3) of the 2003 Order. The Justice of Peace may only issue the warrant if he is satisfied that any of the conditions set out in new Article 6(3B) exist, and he is satisfied that the person to whom the application relates is, liable to be arrested under Article 6(3) and is to be found on the premises specified in the application. Subsection (4)(c) inserts a new sub-paragraph into Article 6 to make exceptions to the timing for bringing a person before a court following his arrest under Article 6(3) if he is in hospital and not well enough to attend court. Such an exception already exists in the similar provisions of Article 47(5) of the Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341 (N.I.12)).

37.     Under Article 29(1) of the Magistrates' Courts (Northern Ireland) Order 1981 (SI 1981/1675 (N.I. 26)) if a summary offence is punishable with more than six months imprisonment a person is normally entitled to elect for trial by jury. However, this right is subject to specific exceptions as set out in that Article. Subsection (5) adds Article 5(1) and (2) of the 2003 Order to the list of exceptions because the summary penalty for those offences has been increased to 12 months. Subsection (6) provides that the penalties available under subsection (3) will only apply to offences committed after the commencement of subsection (3). This is to avoid any retrospective application of the legislation.

Section 13: Transfer of Prisoners

38.     The Review of Safety at HMP Maghaberry that was submitted to the Secretary of State for Northern Ireland on 29th August 2003 concluded that separation of prisoners by paramilitary affiliation was necessary in the interests of safety. The Review recommended that to prevent slippage from the proposed separated regime for paramilitary prisoners to a segregated regime, such as that which operated in HMP Maze and gave prisoners control of wings, prisoners should be subject to punishment for misbehaviour, and that removal to another jurisdiction might be considered in serious cases (Appendix A, paragraph 7).

39.     Section 13 amends Schedule 1 to the Crime (Sentences) Act 1997(c.43), which provides for the transfer of prisoners from Northern Ireland to another part of the United Kingdom with their consent. Under Schedule 1 a prisoner may be transferred as a result of his own application or for the purposes of attending trial or for other judicial purposes. This section provides that if it appears to the Secretary of State that in the interests of maintaining security or good order in any prison in Northern Ireland a remand or sentenced prisoner should be transferred to another establishment in England, Wales or Scotland, he may make an order to that effect (i.e. without the prisoner's consent).

40.     Subsection (4) provides that any such transfer will be made and remain on a restricted basis and may be subject to such other conditions, if any, as the Secretary of State may think fit to impose. A sentenced prisoner who is subject to a restricted transfer is treated for the purposes of his detention under and release from his sentence as if he were still subject to the law of the place from which he was transferred (paragraph 6(2)(b) of Schedule 1 to the Crime (Sentences) Act 1997). The amendments made by subsections (3), (5),(6)and (7) are consequential.

Section 14: Amendment of section 103 of the Terrorism Act 2000

41.     Section 103 of the Terrorism Act 2000 makes it an offence to collect, record or possess information about certain categories of people, which is likely to be useful for terrorism. One of these categories is "full-time employees of the prison service".

42.     Lord Carlile, who was appointed in 2001 as the independent reviewer of the Terrorism Act 2000, in his second annual report on Part VII of the Act recommended that Section 103 be extended to include part-time employees of the Prison Service. This section amends section 103(2)(e) to remove the distinction between full and part-time workers and to ensure that those who work in the prison service but are employed by other government departments are also protected by the offence.

Section 17: Right of barrister to enter into contract for the provision of his services

43.     Barristers in England and Wales are not prevented by law from entering into a contract for the provision of services. This section brings the situation in Northern Ireland into line with the situation in England and Wales by abolishing any rule of law which prevents a barrister in Northern Ireland from entering into a contract for the provision of his services. The General Council of the Bar of Northern Ireland may still make rules which prohibit or restrict barristers from entering into contracts.

Section 21: Statutory Rules

44.     This section provides for orders or regulations to be made by statutory rule. Subsection (2) provides that any order made under section 8(5) (amending the list of organisations to which guidance will apply on human rights standards) will be subject to the affirmative resolution procedure. Under subsection (3), any order made under section 8(3)(c) or 11(4) and any regulations made under paragraph 1(4) or 6(1) of Schedule 3 (Court Security Officers) will be subject to the negative resolution procedure.

SCHEDULE 1: TRANSFER TO LORD CHANCELLOR OF FUNCTIONS RELATING TO NORTHERN IRELAND JUDICIAL APPOINTMENTS COMMISSION

45.     This Schedule provides for the transfer of responsibility for the Judicial Appointments Commission from the First and Deputy First Ministers to the Lord Chancellor by amending the 2002 Act. There are also a number of consequential amendments on, for example, superannuation and the presentation of accounts.

SCHEDULE 2: BAIL UNDER TERRORISM ACT 2000

46.     Schedule 2 is concerned with those charged with a scheduled offence and granted bail under section 67 of the 2000 Act. It creates two new scheduled offences in relation to absconding by persons on bail; provides for powers of arrest in relation to those who abscond or break their conditions of bail, and a power of entry subject to a warrant granted by a Justice of the Peace to effect such arrests; provides the procedures to be followed in relation to those arrested without warrant; and makes provisions for the circumstances in which scheduled offences are certified as suitable for summary trial. The provisions have been created because the enforcement of bail granted under section 67 of the 2000 Act is currently out of kilter with the enforcement of bail granted in respect of non-scheduled offences as set out in the Criminal Justice (Northern Ireland) Order 2003, ("the 2003 Order"). As a result those charged with scheduled offences were being treated more leniently.

47.     Paragraphs 1(1) creates an offence of failure to surrender to custody without reasonable cause ("surrender to custody" is defined in section 12(3)). Paragraph 1(2) creates a further offence of failure to surrender to custody as soon as reasonably practicable, where a person has previously failed to surrender to custody with reasonable cause. Both offences are triable either summarily or on indictment. Summary conviction can attract a penalty of up to imprisonment of 12 months, a fine not exceeding the statutory maximum, or both. Conviction on indictment can attract a penalty of up to three years imprisonment, a fine, or both. Sub-paragraph (4) adds these offences to the list of exceptions set out in Article 29(1) of the Magistrates' Court (Northern Ireland) Order 1981 (SI 1981/1675 (N.I. 26)). As a result a person cannot elect for trial by jury in relation to the summary offence. Sub-paragraph (5) makes these offences scheduled by adding them to the list of offences set out in Schedule 9 to the Terrorism Act 2000.

48.     Paragraphs 2(2) and (3) provide the court with a power to issue a warrant for the arrest of a person admitted to bail who fails to surrender to its custody at the appointed time; or who, having surrendered to its custody then absents himself without the permission of the court. Sub-paragraph (4) provides a constable with a power of arrest without warrant in respect of any person under a duty to surrender to the custody of a court if he is satisfied that one of the circumstances in paragraph 2(4) exists. Sub-paragraphs (5) and (6) create a new power of entry to assist the police in carrying out such an arrest. This power will be exercisable upon the granting of a warrant by a Justice of the Peace which is subject to the conditions set out in Sub-paragraphs (5) and (6). This power of entry is in very similar terms to that inserted by section 12 into the 2003 Order.

49.     Paragraph 3(1) provides that a person arrested under paragraph 2(4) must be brought before a judge of the High court or the Court of Appeal as soon as is practicable, and no later than the day following arrest excluding Sundays, Good Friday and Christmas Day. This time limit has been designed to ensure that the person arrested has his arrest reviewed promptly and if appropriate he can be readmitted to bail as quickly as possible. Under paragraph 3(2) the time limit will not apply if a person is in hospital and unable to attend court. This is in line with similar provisions in the Police and Criminal Evidence (Northern Ireland) Order 1989 and with those to be included in the 2003 Order by clause 12.

50.     The person arrested under paragraph 2(4) must be brought before a judge of the High Court or the Court of Appeal because these are the only judges competent to grant bail under section 67(2) of the 2000 Act. As the original bail will have been granted under section 67 of the 2000 Act any bail granted under paragraph 3 must also be bail granted under and in accordance with section 67. Under paragraph 3(3) the judge must conduct a two stage process. Firstly, he must assess the grounds for the arrest by deciding whether the person is not likely to surrender to custody, or has broken or is likely to break any condition of his bail. If he is not satisfied of any of these, then he must automatically re-release the person on bail subject to the same conditions (if any) as were originally imposed. As there will be no application for bail as such and no exercise of discretion by the judge in relation to bail the bail is deemed to be bail granted under section 67 (this is provided for in paragraph 3(4)). If the judge believes that any of the considerations stipulated in sub-paragraph 3(a) is met, then he must turn to the second stage of the process and re-consider the question of bail under and in accordance with section 67. The procedure has been developed to be very similar to that in Article 6 of the 2003 Order.

51.     Paragraph 4 provides that any person in respect of whom a certificate of suitability for summary trial has been issued for all scheduled charges faced is treated as if he had been granted bail under the 2003 Order. This is because if the question of bail in relation to such a person were to be reconsidered they could no longer be granted bail under section 67(1)(b) of the Terrorism Act 2000. It needs to be clear that in such circumstances the person is to be treated as if they had been granted bail in relation to a non-scheduled offence.

52.     Paragraph 5 provides that the offence of absconding from bail, the powers of arrest with and without warrant and the power of entry with a warrant from a Justice of the Peace will apply to those on bail before and after the legislation is commenced. For those already on bail at that time, the powers only apply in respect of any act, or failure, or issue of a certificate for summary trial, which occurs after the law is commenced. This is to avoid the provisions having any retrospective effect.

SCHEDULE 3: COURT SECURITY

53.     This Schedule (as inserted by section 16) builds on provisions made in the 2002 Act in relation to court security. Sections 79 to 81 of the 2002 Act have been re-enacted with amendments and supplemented with a number of new provisions.

54.     Paragraph 1(1) replicates the duty in the 2002 Act on the Northern Ireland Court Service to take all reasonable steps to provide security at relevant buildings. "Relevant buildings" is extended to include not only court houses but also buildings in which certain tribunals and Masters sit (sub-paragraph (6)). Paragraph 1(3) replicates the existing provision that court security 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 (c. 23).

55.     Paragraph 1(4) is a new provision that enables the Lord Chancellor to make regulations as to the training to be completed and conditions to be met before a person may be designated or employed as a court security officer.

56.     Sub-paragraphs (7) and (8) make new provision for court security officers to be employed in relevant parts of buildings that are not solely devoted to court business (for example the building in which the Social Security Commissioners sit). Paragraph 2 replicates the existing provision that court security officers are to have the following powers to search and remove people from relevant buildings:

• power to search any person who is in, or seeking to enter, a relevant building (paragraph 2(1)(a));

• power to search any article in possession of a person who is in, or seeking to enter, a relevant building (paragraph 2(1)(b));

• power to exclude or remove from a relevant building any person who refuses to permit a search (paragraph 3 (1)(a))

• power to exclude or remove from a relevant building a person who will not surrender an article when asked to do so (paragraph 3(1)(b));

• power to restrain, exclude or remove any person from a relevant building if it is reasonably necessary to do so for the purposes of enabling the business of any court or office-holder to be carried out without interference or delay, maintaining order, securing the safety of the person in the building (paragraph 3(3)).

The court security officers' powers to exclude, remove and restrain include the power to use reasonable force where necessary (paragraph 3(4)).

57.     Paragraph 4 provides court security officers with the following new powers in relation to the seizure of goods:

• power to ask a person to surrender an article (paragraph 4 (1));

• power to seize an article if the person asked to surrender that article refuses to do so (paragraph 4 (2)).

• Under paragraph 4(3) the grounds on which a court security officer may seize or require surrender of articles are that the article may:

(a) jeopardise the maintenance of order in the building;

(b) put the safety of any person in the building at risk; or

(c) be evidence of, or in relation to, an offence.

58.     Paragraph 5 is a new provision allowing an article surrendered or seized to be retained by the court security officer, only until such time as the owner is leaving the court building, unless the court security officer reasonably believes the article to be evidence of, or in relation to, an offence. In such a case the article may be retained for a maximum of 24 hours to enable the security officer to draw the article to the attention of a police officer.

59.     Paragraph 6 provides the Lord Chancellor with a new power to make regulations about the retention of articles which are surrendered to, or seized by, a court security officer.

60.     Paragraph 7 replicates two existing offences: first, an offence of assaulting a court security officer in the execution of his duty; and secondly, an offence of resisting or intentionally obstructing a court security officer in the execution of his duty.

COMMENCEMENT

61.     Section 19 provides that sections 1 to 18, together with their schedules, shall come into force on a day to be specified by the Secretary of State (who may specify different commencement dates for different provisions).

HANSARD REFERENCES

The following table sets out the dates and Hansard references for each stage of this Act's passage through Parliament.

Royal Assent - 13 May 2004 House of Lords Hansard Vol 661 Col 506

House of Commons Hansard Vol 421 Col 536