2004 Chapter 4

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     These notes refer to the Justice (Northern Ireland) Act(c.4)      which received Royal Assent on 13 May 2004      

JUSTICE (NORTHERN IRELAND) ACT 2004

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EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Justice (Northern Ireland) Act 2004 which received Royal Assent on 13 May 2004. They have been prepared by the Northern Ireland Office in order to assist the reader of the Act and to help inform debate on it. They do not form part of the Act and have not been endorsed by Parliament.

2.     The notes need to be read in conjunction with the Act. They are not, and are not meant to be, a comprehensive description of the Act. So where a section or part of a section does not seem to require any explanation or comment, none is given.

BACKGROUND

3.     The purpose of the Act is to continue the process of change and improvement in the criminal justice system in Northern Ireland. This process of change stems from the Criminal Justice Review, a wide-ranging survey of the Northern Ireland criminal justice system published in March 2000. Other milestones in the change process include the Justice (Northern Ireland) Act 2002 (c.26), the Joint Declaration (published by the British and Irish Governments on 1 May 2003) and the updated Implementation Plan for the Criminal Justice Review, published on 18 June 2003 (ISBN 0-337-08614-1):

• The Justice (Northern Ireland) Act 2002 ("the 2002 Act") made provision, among other things, for the creation of a new Public Prosecution Service for Northern Ireland, for judicial appointments processes after the devolution of criminal justice matters, for a new system of youth conferencing and for the establishment of a Chief Inspector of Criminal Justice.

• The Government made a commitment in the Joint Declaration, published in May 2003, that there would be a second Justice Act for Northern Ireland. The Government committed to making provision on the following nine matters:

i.     To establish a Judicial Appointments Commission ("the Commission") prior to the devolution of responsibility for criminal justice matters to the Northern Ireland Assembly (the 2002 Act provided for the Commission to be established post-devolution);

ii.     To provide that the composition of the Commission taken as a whole (i.e. including the judicial members) is as far as possible reflective of the community in Northern Ireland;

iii.     To provide that a key objective of the Commission is to engage in a programme of action to secure a judiciary in Northern Ireland that is as reflective of Northern Ireland society as can be achieved consistently with the requirement of appointment on merit;

iv.     To place the same time limits on membership of the Commission by members of the judiciary, as currently apply to the non-judicial members. That is, a judicial member may not be appointed for more than 5 years at a time; and the aggregate period for which a judicial member may serve as a member must not exceed 10 years;

v.     To provide that (post-devolution) in respect of the appointments of the Lord Chief Justice and Lords Justices of Appeal, the First Minister and Deputy First Minister acting jointly will make recommendations to the Prime Minister, who in turn will recommend appointments to Her Majesty on that basis;

vi.     To amend section 7(5) of the 2002 Act, which requires the agreement of the Lord Chief Justice to removal or suspension of a judge as a result of a recommendation of a Tribunal established under section 8 of the 2002 Act;

vii.     To amend section 55 of the Police Act 1998 (c.32) to remove the current discretion, and place a requirement on the Director of Public Prosecutions for Northern Ireland, if considering a matter which indicates that a police officer may have committed a criminal offence or behaved in a manner which would justify disciplinary proceedings, to refer the case to the Police Ombudsman for Northern Ireland;

viii.     To require the criminal justice agencies in Northern Ireland to have due regard to relevant international human rights conventions and standards in carrying out their functions; and

ix.     To create an offence of seeking to influence a prosecutor's prosecution decisions without legitimate cause.

• The updated Implementation Plan, published in June 2003, sets out how the recommendations in the Criminal Justice Review are being implemented, with the aim of promoting "confidence among all parts of the community while delivering a fair and impartial system of justice".

• The Act makes provision for the 9 commitments above.

OVERVIEW

4.     The Act has 23 sections and 4 Schedules:

• The sections relating to the judiciary (sections 1-5) provide for the Judicial Appointments Commission ("the Commission") for Northern Ireland to be established prior to devolution of responsibility for criminal justice matters. The sections make provision to apply the time limits on membership which currently apply to lay members of the Commission to judicial members of the Commission. Provision is also made for the Commission to engage in a programme of action aimed at securing a judiciary in Northern Ireland that is reflective of the community. Judicial appointments will continue to be made on the basis of merit.

• These sections also provide that the composition of the Commission itself taken as a whole will, as far as possible, be reflective of the community in Northern Ireland. In addition, the sections provide that in respect of appointments of the Lord Chief Justice and Lords Justices of Appeal, the First Minister and Deputy First Minister acting jointly will make recommendations to the Prime Minister prior to him making recommendations to Her Majesty The Queen. Finally, the requirement for the Lord Chief Justice's agreement to removal or suspension as a result of a Tribunal recommendation is removed, and provision is made for him to be consulted instead.

• The sections relating to prosecutors (sections 6 and 7) place a duty on the Director of Public Prosecutions for Northern Ireland to refer any matter to the Police Ombudsman for Northern Ireland in which it is suspected that a police officer may have committed a criminal offence or in the course of an investigation behaved in a manner that would justify disciplinary proceedings. They also create an offence of seeking to influence a prosecutor with the intention of perverting the course of justice.

• The sections on criminal justice organisations (sections 8 and 9) provide that specified organisations in Northern Ireland should, in carrying out their functions, have regard to human rights guidance published by the Attorney General for Northern Ireland. Changes are made to existing legislation which are consequential to the establishment of the Youth Justice Agency.

• The sections on bail (10-11) create a right of appeal for the prosecution against the grant of bail by a magistrates' court, create new provisions in relation to those granted bail under the Terrorism Act 2000 (c. 11) (scheduled cases) and adjust current bail provisions on bail under the Criminal Justice (Northern Ireland) Order 2003 (S.I.2003/1247 (N.I.13)) (non-scheduled cases) to bring both into alignment.

• Section 13 provides for the transfer of prisoners from Northern Ireland to another part of the United Kingdom in the interests of maintaining security or good order in prisons in Northern Ireland.

• Section 14 amends section 103 of the Terrorism Act 2000 (c.11) to afford a greater level of protection to those working in the Northern Ireland Prison Service.

• Section 15 makes driving whilst disqualified an arrestable offence.

• Section 16 re-enacts with amendments sections 79 to 81 of the 2002 Act, setting out in more detail the powers of court security officers.

• Section 17 abolishes any rule of law which prevents a barrister from entering into a contract for the provision of his services.

• Sections 18-23 make supplementary provisions, including the commencement arrangements, provisions for the exercise of order-making powers under the Act and the extent of the Act.

COMMENTARY

Section 1: Transfer to Lord Chancellor of functions relating to Judicial Appointments Commission

5.     The Criminal Justice Review recommended the establishment of a Judicial Appointments Commission once responsibility for criminal justice matters had been devolved (recommendation 77, paragraph 6.102). Part I of the 2002 Act confers on the First and Deputy First Ministers, acting jointly, a number of functions in relation to the Northern Ireland Judicial Appointments Commission ("the Commission"). The Joint Declaration published in May 2003 gave a commitment to establish the Commission prior to devolution in order further to enhance public confidence in the criminal justice system (paragraph 24).

6.     This section transfers functions of the First and Deputy First Ministers in relation to the Commission to the Lord Chancellor. This transfer is so that the Commission can be brought into operation before the devolution of responsibility for criminal justice. Schedule 1 amends Part I of the 2002 Act to effect this transfer of functions. On devolution of criminal justice, these functions will be transferred back to the First and Deputy First Ministers, acting jointly, as provided for in the 2002 Act. There are also a number of consequential amendments on, for example, superannuation and the presentation of accounts.

Section 2: Membership of the Commission

7.     The Criminal Justice Review recommended that the Commission should be representative of the community in Northern Ireland (recommendation 79, paragraph 6.104). Section 3(8) of the 2002 Act provides that the First and Deputy First Ministers must ensure, so far as possible, that the lay members of the Commission are representative of the community in Northern Ireland.

8.     Subsection (1) of this section replaces this duty with a duty for the Lord Chancellor and those others responsible for making nominations to the Commission (the Lord Chief Justice, the General Council of the Bar in Northern Ireland and the Law Society of Northern Ireland) to make such arrangements as will, so far as is practicable, ensure that the membership of the Commission as a whole is reflective of the community in Northern Ireland.

9.     Under paragraph 2(2) of Schedule 2 to the 2002 Act, a person may only be appointed as a non-judicial member of the Commission for up to five years at a time, for a maximum of ten years. Subsection (2) inserts new paragraphs (1) and (1A) into Schedule 2 to the 2002 Act to place the same time limits on the Commission's judicial members.

Section 3: Duty of Commission to secure judiciary reflective of the community

10.     The Criminal Justice Review recommended that the judiciary in Northern Ireland should be as reflective of Northern Ireland society as can be achieved consistent with the requirement of appointment on merit (recommendation 69, paragraph 6.85). Section 5(8) of the 2002 Act provides that, so far as is practicable, the Commission must secure that a range of persons reflective of the community in Northern Ireland is available for consideration each time the Commission selects or recommends a person for appointment to a listed judicial office. Section 5(9) of the 2002 Act states that the selection of a person to a listed judicial office must be based solely on merit.

11.     Section 3 amends section 5 of the 2002 Act by replacing subsections (8) and (9):

• New section 5(8) repeats the provision that the selection or recommendation of a person to a listed judicial office must be made solely on the basis of merit.

• New section 5(9) provides that the Commission must at all times engage in a programme of action as defined in section 5(10). The section is worded in this way to ensure that the Commission engages in an ongoing programme of action. This "rolling" programme of action will be modified and adapted by the Commission to cover changing circumstances. It will not be a one-off exercise but an ongoing exercise.

• New section 5(10) provides that the programme of action must be designed to secure, as far as reasonably practicable, that appointments to listed judicial offices are such that those holding listed judicial office will be reflective of the community in Northern Ireland. This requires the Commission to take active steps to ensure that the judiciary is reflective of society, subject to the principle of appointment on merit. The Commission must also secure, as far as practicable, that a range of persons reflective of the community is available for consideration by the Commission each time the Commission makes a selection or recommendation for appointment to a listed judicial office.

Section 4: Appointment of Lord Chief Justice and Lords Justices of Appeal

12.      Section 4 of the 2002 Act amends section 12 the Judicature (Northern Ireland) Act 1978 (c.23) by requiring the Prime Minister to consult the First and Deputy First Ministers and the Lord Chief Justice before making recommendations to Her Majesty The Queen as to who should fill the posts of Lord Chief Justice and Lords Justices of Appeal. The 2002 Act also requires the Commission to advise the First and Deputy First Ministers over the procedure they should adopt for formulating their reply to the Prime Minister.

13.     This section makes provision for a change to the process for appointing the Lord Chief Justice and Lords Justices of Appeal. The First and Deputy First Minister, after consultation with the Lord Chief Justice (or the most senior Lord Justice of Appeal if the office of the Lord Chief Justice is vacant or the Lord Chief Justice is unavailable), will make a recommendation to the Prime Minister (new section 12(4)). The Prime Minister must consider that recommendation before making his recommendation to Her Majesty The Queen. The Commission will still provide advice to the First and Deputy First Ministers on the procedure to adopt for formulating a recommendation to the Prime Minister. This amendment brings the procedure for appointing the Lord Chief Justice and Lord Justices of Appeal more closely in line with the Criminal Justice Review's recommendation (recommendation 75, paragraph 6.96).

Clause 5: Removal or suspension from listed judicial offices

14.      This clause removes the requirement found in section 7(5) of the 2002 Act for the Lord Chief Justice's agreement to removal or suspension of a person from a listed judicial office. The Lord Chief Justice must be consulted on the removal instead.

Section 6: Duty of Director of Public Prosecutions to refer certain matters to Police Ombudsman

15.     Section 34 of the 2002 Act amends section 55 of the Police (Northern Ireland) Act 1998 (c. 32) to place the Director of Public Prosecutions for Northern Ireland ("the Director") under a duty to refer matters to the Police Ombudsman for Northern Ireland ("the Ombudsman"). Recommendation 21 of the Criminal Justice Review stated that there should be a duty on the Director to refer matters to the Ombudsman and section 6 makes the necessary amendments to ensure that the recommendation is fully implemented in line with the undertaking of the Government in the Joint Declaration published in May 2003 and referred to at page 33 of the Updated Implementation Plan.

16.     Section 6 amends section 55 as follows. Firstly, it removes the references to the Director in those sections which deal with the discretion (subsection (2)). Secondly, it inserts a new subsection into section 55 which places a duty on the Director to refer any matter to the Ombudsman in which it appears to the Director that a police officer may have committed a criminal offence or, in the course of a criminal investigation, have behaved in a manner which would justify disciplinary proceedings (subsection (3)).

17.     Under the new subsection it is made clear that the new duty does not apply if the Director knows that the Ombudsman is already aware of a matter - this is to ensure that matters are not repeatedly referred to the Ombudsman and to avoid overlap with matters that have already been referred. Subsection (4) amends section 55(5) to ensure that the Ombudsman has the power to investigate any matter referred under new subsection (4A). Subsection (5) amends subsection 55(7) so that the Ombudsman is no longer obliged to inform the Director of the outcome of criminal or disciplinary proceedings. Informing the Director is unnecessary because he made the referral to the Ombudsman in the first place. Finally subsection (6) ensures that referrals under this section are treated consistently with any referrals under section 55 to which the RUC (Complaints etc.) Regulations 2001 (S.R. 2001/184) currently apply. Subject to certain exceptions, Regulations 7 to 9 of these Regulations limit the Ombudsman to investigating complaints about matters that are no more than 12 months old.

Section 7: Influencing a Prosecutor

18.     This section creates an offence of seeking to influence a prosecutor with the intention of perverting the course of justice as recommended by the Criminal Justice Review at recommendation 46. The offence is created by way of a new section 32A inserted into the 2002 Act. For this purpose, a prosecutor may be the Director, the Deputy Director of Public Prosecutions for Northern Ireland, a Public Prosecutor (as provided for in subsection (1) of the inserted section) or a barrister or solicitor to whom the Director has assigned the power to institute or conduct any criminal proceedings under section 36(2) of the 2002 Act (as provided for in subsection (2) of the inserted section). A person who, with the intention of perverting the course of justice, acts with the intention of influencing a prosecutor as defined above in any decision as to whether to institute or continue criminal proceedings commits this offence.

19.     Case law concerning the common law offence of perverting the course of public justice is likely to be of use in the interpretation of this new offence. The intention in relation to the common law offence is one to pervert the course of public justice or the intention to do some act which, if achieved, would pervert the course of public justice. The act done must tend or intend to interfere with the course of public justice. Such acts include but are not limited to making false allegations, perjury, concealing the commission of an offence, obstructing the police, assisting others to evade arrest, failing to prosecute, procuring and indemnifying sureties, interfering with witnesses, evidence and jurors and publishing material calculated to prejudice a fair trial. Public justice has been interpreted to mean that either a course of justice has been commenced by way of an investigation or court proceedings, or an offence has been committed which requires prosecution.

20.     A person charged with this offence may be tried either summarily or on indictment. Subsection (3) of the inserted section provides that the offence is punishable on summary conviction by a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding six months, or both. On conviction on indictment, the offence is punishable by imprisonment for a term not exceeding five years or to a fine or both. Subsection (4) of the inserted section requires the Director's consent for proceedings to be instituted to ensure that a prosecution for this offence is only instituted where there is sufficient evidence and where the prosecution will be in the public interest.

Section 8: Guidance for criminal justice agencies on human rights standards

21.     The Criminal Justice Review took account of basic human rights principles set out in international law (paragraph 3.11) and stressed their application to the criminal justice system (paragraph 3.6). The Joint Declaration of May 2003 stated the Government's intention to make future provision to promote a human rights culture in the criminal justice system in Northern Ireland (paragraph 24).

22.     This section makes provision for the Attorney General for Northern Ireland to issue guidance to certain criminal justice organisations in Northern Ireland on how to carry out their functions in accordance with relevant international human rights standards. The organisations to which this section applies must have regard to any such guidance (subsection (2)). This section does not affect the operation of section 6 of the Human Rights Act 1998, which provides that it is unlawful for public authorities to act in a way which is incompatible with a Convention right (subsection (2)).

23.     Subsection (3) requires the guidance to be published, to be laid before each House of Parliament and to be brought into operation by an order made by the Attorney General, subject to the negative resolution procedure, when it is issued, and each time it is revised. The organisations to which the guidance will apply are listed at subsection (4). Subsection (5) gives the Attorney General for Northern Ireland the power to amend this list by order subject to the draft affirmative procedure.

24.     Section 52 of the Police (Northern Ireland) Act 2000 (c.32) makes provision for a code of ethics for police officers. Subsection (6) amends section 52 to provide that the Chief Constable and Policing Board must have regard to the human rights guidance for the time being in operation when revising the code of ethics for police officers. This is to ensure that the police are guided by one document which is consistent with the human rights guidance and avoids the need for the police to refer to a variety of documents.

25.     Subsection (7) states that the Director of Public Prosecutions must have regard to the human rights guidance currently in operation when drawing up or revising his code of practice for prosecutors under section 37 of the 2002 Act. This is to ensure that there is no conflict between the code of practice and the human rights guidance.

26.     Subsection (9) requires the Attorney General for Northern Ireland to consult the Advocate General for Northern Ireland before issuing or revising the guidance, bringing the guidance into operation or amending the list of organisations to which it will apply. This provision will only take effect after the devolution of criminal justice matters, at which time the post of Advocate General for Northern Ireland will be created as provided for in section 27 of the 2002 Act.

Section 9: The Juvenile Justice Board

27.     The Criminal Justice Review recommended the creation of a next steps agency which would take on responsibility for the range of responsibilities which fell to the Juvenile Justice Board (recommendation 185). The functions of the Board have been transferred to the Secretary of State for Northern Ireland and are now being exercised by the Youth Justice Agency, which was established on 1 April 2003. In addition, the new Agency incorporates youth conferencing services. The purpose of this section is to substitute references in the 2002 Act to the Juvenile Justice Board for reference to the Youth Justice Agency (subsections (1), (2) and (4) and to remove references to the Board in the 2002 Act and other legislation where they are no longer appropriate (subsections (3) and (5)).

Section 10: Prosecution right of appeal against grant of bail by magistrates' court

28.     This section creates a prosecution right of appeal to the High Court against the granting of bail by the magistrates' court. At the moment there is no mechanism available for the prosecution to appeal against the grant of bail. It is important that there are adequate safeguards against the possibility of mistakes being made. The granting of bail may only be appealed if a person is charged with, or convicted of, an offence punishable by imprisonment to ensure that only in the most serious cases can a person be denied their liberty by virtue of an appeal.

29.     Subsection (2) provides that the grant of bail may only be appealed where the prosecution is conducted by or on behalf of the Director of Public Prosecutions, or on behalf of the Police Service of Northern Ireland: as a consequence appeals will only be possible where a professional prosecutor is involved in the matter. Subsection (3) states that an appeal may only be made if the prosecution made representations against the granting of bail before bail was granted.

30.     Subsection (4) provides that oral notice of an intention to appeal must be given to the magistrates' court at the conclusion of the proceedings at which bail is granted and before the person concerned is released from custody. Subsection (5) provides that written notice must be given to the magistrates' court and the person concerned within two hours of the conclusion of the proceedings. Subsection (6) requires the magistrates' court to remand the person concerned in custody from when it receives the oral notice of the appeal until a decision on the appeal is taken. Where the prosecution fails to comply with subsection (5), the appeal shall be deemed to have been disposed of (subsection (7)). The hearing of the appeal must be commenced with 48 hours (subject to limited exceptions) of the giving of oral notice (subsection (8)). The purpose of these strict time limits is to ensure that if an appeal is unsuccessful a person is only further detained for as short a time as possible.

31.     Subsection (9) permits an appeal by the prosecution by way of re-hearing, and on such an appeal the High Court may (a) remand the person concerned in custody, or (b) grant bail subject to such conditions (if any) as it thinks fit. In relation to a person under the age of 21, the reference in subsection (1) to an offence punishable by imprisonment is to be read as a reference to an offence which would be so punishable in the case of a person over that age (subsection (11) refers). Without such a provision the section would only cover those aged over 21, because those under 21 cannot be sentenced to imprisonment by virtue of the Treatment of Offenders Act (Northern Ireland) 1968 (c.29).