2007 Chapter 6

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These notes refer to the Justice and Security (Northern Ireland) Act 2007 (c.6) which received Royal Assent on 24 May 2007

JUSTICE AND SECURITY (NORTHERN IRELAND) ACT 2007

EXPLANATORY NOTES

INTRODUCTION

1.     These explanatory notes relate to the Justice and Security (Northern Ireland) Act 2007 which received Royal Assent on 24 May 2007. They have been prepared by the Northern Ireland Office in order to assist the reader in understanding the Act. 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 AND SUMMARY

3.     The purpose of the Act is to deliver a number of measures which are necessary to deliver a commitment to security normalisation in Northern Ireland.

4.     Under the Belfast ('Good Friday') Agreement, the Government made a commitment to make as early a return as possible to normal security arrangements in Northern Ireland consistent with the level of threat. In April 2003 the Government set out proposals to normalise the security profile across Northern Ireland. In response to the IRA statement of 28 July 2005, on 1 August 2005, the Secretary of State Peter Hain announced a programme of security normalisation, subject to an enabling environment. A key part of the normalisation timetable is the repeal of counter-terrorist legislation particular to Northern Ireland (that is, Part 7 of the Terrorism Act 2000) by July 2007.

5.     Part 7 of the Terrorism Act 2000 ('the 2000 Act') underpins the long-standing Diplock system. This is a system whereby certain offences (known as 'scheduled offences') are tried without a jury unless the Attorney General exercises his discretion and directs that a case is to be tried before a jury (known as 'descheduling'). In exercising his discretion, the Attorney General applies a non-statutory test: that he will not deschedule a case unless he is satisfied that it is not connected with the emergency. Under security normalisation the Diplock system will be repealed in July 2007.

6.     However, although Northern Ireland is in a process of security normalisation, some arrangements are necessary to ensure that jurors in Northern Ireland are protected from intimidation. This Act therefore makes provision to reform the jury system in Northern Ireland. Sections 10 to 13 and Schedule 2 amend the Juries (Northern Ireland) Order 1996 to give effect to a number of reforms which it is considered will reduce the risk of juror intimidation and partisan juries by achieving greater anonymity for jurors and by promoting greater randomness in jury selection.

7.     Despite the proposed jury reforms, it is not yet possible for Northern Ireland to operate entirely without the fall-back of some special arrangements for a small number of exceptional cases. This Act therefore provides for a new system of non-jury trial. The new system provides the Director of Public Prosecutions for Northern Ireland with discretion to issue a certificate stating that a trial is to take place without a jury if certain conditions which are set out in the Act are met. This means that the presumption will be for jury trial in all cases, while the small number of exceptional cases requiring non-jury trial will still be able to be treated appropriately. Such a system is necessary to ensure that trials continue to be fair in Northern Ireland and that the quality of justice remains high.

8.     This Act makes provision to extend the powers of the Northern Ireland Human Rights Commission (the 'Commission'). It amends the Northern Ireland Act 1998 by granting three new powers to the Commission - powers to require the provision of information or a document, or for a person to give oral evidence; to access places of detention; and to institute judicial proceedings in the Commission's own right, and when doing so to rely upon the European Convention on Human Rights. This will mean that the Commission can bring test cases without the need for a victim to do so personally. Additionally, this Act requires the Commission to report to the Secretary of State on the effectiveness of these new powers, within two years of their commencement. The use of these powers will be governed by safeguards to help ensure that they are used appropriately by the Commission and complied with by public authorities.

9.     This Act provides additional powers for the police and military. These include powers of entry, search and seizure that go over and above common law and existing statutory powers available to the police, for example those granted by the Police and Criminal Evidence (Northern Ireland) Order 1989 ('PACE'). Since the armed forces have no statutory powers above those of ordinary members of the public, they require specific legislative provision in order to stop, search and arrest persons, to enter premises and to seize items. A compensation scheme is provided for in respect of damage or loss caused by the exercise of powers in the Act.

10.     This Act also makes provision for the permanent regulation of the private security industry in Northern Ireland. The current licensing scheme is provided for in section 106 of the Terrorism Act 2000, and the details are set out in Schedule 13 to that Act. The Schedule 13 provisions are designed to ensure licences are not granted to persons and companies with a paramilitary connection. The Act prepares for a normalised security situation by bringing Northern Ireland within the same statutory framework as exists in Great Britain. The Act amends the Private Security Industry Act 2001 ('the 2001 Act'), which currently extends to Scotland and England and Wales only, to include Northern Ireland. This will have the effect of giving the Security Industry Authority ('the SIA') responsibility for the regulation of matters designated by the Secretary of State, such as manned guarding and wheel clamping. In extending the 2001 Act to Northern Ireland the only changes to it are those technically necessary to make that regime work effectively in Northern Ireland. Explanatory Notes have been produced by the Home Office in relation to the operation of the 2001 Act.

11.     In August 2006, the Northern Ireland Office published a consultation document entitled 'Regulating the Private Security Industry in Northern Ireland'. The document detailed four options for the regulation of the industry, and indicated that the preferred option for thorough and permanent regulation of the industry was to extend the remit of the SIA to Northern Ireland. Of the responses received from security companies, all were strongly in favour of the proposals. This view was shared by local authorities as well as the Police Service of Northern Ireland ('PSNI') and the British Security Industry Association. Some areas of concern were raised which have been taken into account in developing the provisions of this Act.

12.     Because the SIA will not be able to commence regulation immediately, this Act also provides for an interim scheme of licensing in Northern Ireland from 1 August 2007. The interim scheme builds on and widens the scope of the current licensing scheme so as to prevent those engaged in criminal activity from benefiting from security industry activities.

13.     On 5 February 2007 the Government published a Protocol for Community-based Restorative Justice Schemes which sets standards for schemes seeking to receive referrals of certain low level criminal cases from the criminal justice system for a reparative community-led disposal. The Act provides a statutory framework for the inspection of schemes by the Chief Inspector of Criminal Justice in Northern Ireland, to ensure that those standards are being met, and for the maintenance of a public register, by the Secretary of State, of schemes which are accredited under the Protocol.

14.     The Act inserts into the Northern Ireland Act 1998 a further alternative departmental model for a Northern Ireland policing and justice department. Under the model the department would be headed by an elected Northern Ireland Minister, who would be supported by an elected deputy Minister for a period determined by the Northern Ireland Assembly. The Act also enables such a department to be established by Order in Council in certain circumstances.

15.     Finally, the Act adds the Northern Ireland Court Service and two other bodies to the remit of the Criminal Justice Inspectorate, enables the renaming of judicial tiers (enabling the fulfilment of a recommendation of the Criminal Justice Review of March 2000) and makes a technical change to legal aid arrangements to enable legal aid certificates to be made that are restricted to certain stages of a case.

TERRITORIAL EXTENT

16.     Sections 14 to 20 (Human Rights Commission), section 44 and Schedule 5 (Northern Ireland department with policing and justice functions), section 47 (altering title of resident magistrate) and sections 48 and 49 (private security industry) extend to the whole of the UK, as does Schedule 6 (private security industry: interim arrangements). The amendments made by Schedule 1 (trials on indictment without a jury: consequential amendments) (and sections 8 and 9(1) to (4) so far as relating to those amendments) have the same extent as the enactments being amended. Subsections (6) and (7) of section 9 extend to England and Wales and Northern Ireland. The other provisions of the Act extend to Northern Ireland only.

TERRITORIAL APPLICATION: WALES

17.     The Act does not have any special effect on Wales and does not affect the National Assembly for Wales.

COMMENTARY ON SECTIONS

Trials on indictment without a jury

Section 1: Issue of certificate

18.     This section enables the Director of Public Prosecutions for Northern Ireland ('DPP(NI)') to issue a certificate in relation to any trial on indictment of a defendant (and anyone tried with that defendant). The effect of the certificate is that the trial is conducted in the Crown Court without a jury. The test that the DPP(NI) must apply in deciding whether or not to issue a certificate is set out in subsection (2). He has the discretion to certify a case if it falls within one of the conditions set out in the section and the DPP(NI) assesses that there is a risk that trial by jury might impair the administration of justice (for example, that there might not be a fair trial).

19.     Condition 1 is set out in subsection (3). It covers circumstances where the defendant has a link to a proscribed organisation that is connected with the affairs of Northern Ireland. The defendant could be a present or former member of a proscribed organisation or be an associate of a member or former member. Subsection (9) defines who would be considered to be an associate of a member or former member of such an organisation and subsection (10) defines 'proscribed organisation'.

20.     Condition 2 is set out in subsection (4). This covers circumstances where an offence is committed on behalf of a proscribed organisation that is connected with the affairs of Northern Ireland, or such an organisation is otherwise involved with, or assists in, the carrying out of the offence.

21.     Condition 3 is set out in subsection (5). This covers circumstances where a proscribed organisation that is connected with the affairs of Northern Ireland interferes, or assists with interference, with the investigation or prosecution of an offence. This could include, for example, interference with a crime scene or the intimidation of witnesses not to give or to withdraw their evidence.

22.     Condition 4 is set out in subsection (6). This covers circumstances where the offence occurred as a result of, or in connection with, sectarianism (i.e. in connection with religious belief or political opinion). Subsection (7) clarifies that 'religious belief and political opinion' includes their absence and any assumptions made about religious beliefs or political opinions. Subsection (8) provides that the persons and groups of persons referred to in subsection (6) need not include the defendant or victim.

23.     A case that falls within one of the conditions will not automatically be tried without a jury - non-jury trial will only happen if the DPP(NI) issues a certificate because he is satisfied that there is a risk that the administration of justice might be impaired.

Section 2: Certificates: supplementary

24.     Subsection (1) requires any certificate issued under section 1 to be lodged with the court prior to arraignment. Arraignment is the stage in the case at which the defendant pleads guilty or not guilty to the charges. It is the last stage before a jury is selected to hear the case and the trial begins.

25.     Subsection (2) enables the DPP(NI) to make changes to the certificate at any time before arraignment. He can amend the certificate (perhaps to reflect changes to the charges the defendant will face) and he can withdraw the certificate. If a certificate is withdrawn, the defendant will be tried before a jury.

26.     Subsection (3) clarifies that the certificate can be lodged with either the magistrates' court or the Crown Court as appropriate, depending on the stage the legal proceedings have reached.

Section 3: Preliminary inquiry

27.     This section enables the prosecution to request a preliminary inquiry rather than a preliminary investigation when a section 1 certificate case is being returned for trial to the Crown Court. The court must grant the request unless they consider a preliminary investigation to be in the interests of justice (subsection (4)(b)) or the offence is an extra-territorial offence under the Criminal Jurisdiction Act 1975 (subsection (4)(c)). Preliminary inquiry is a paper-based process whereas preliminary investigation requires the calling of witnesses. Preliminary inquiry should help to protect witnesses from intimidation.

Section 4: Court for trial

28.     The default position under this section is that all non-jury trials will be held in Belfast. However, under subsection (1) of section 4 the Lord Chief Justice of Northern Ireland ('LCJ') can direct that one particular trial, a part of a trial or a class of trials, be held at the Crown Court sitting elsewhere. Subsection (2) enables the LCJ to delegate that power to another judge.

29.      Subsection (3) requires a case where a DPP(NI)'s certificate has been issued under section 1 to be returned for trial to the Crown Court in Belfast (or the place specified in any direction under subsection (1)). Subsection (4) deals with cases where a DPP(NI)'s certificate is issued after the case has been returned for trial but before arraignment and subsection (6) deals with cases where the LCJ's direction under subsection (1) is made after the case has been returned for trial.

Section 5: Mode of trial on indictment

30.     This section sets out the manner in which cases are to be tried when a certificate under section 1 has been issued. Subsection (1) provides that the case is tried without a jury. Subsection (2) grants the court hearing the case the same powers and jurisdiction as if the trial were conducted with a jury. Subsection (3) provides that references to juries in other legislation are interpreted as references to the court where a case is tried under these provisions.

31.     Subsection (4) makes clear that the trial court may not draw any adverse inferences from the fact that the DPP(NI) has issued a certificate under section 1.

32.     Subsection (5) enables the court to find a person guilty of an alternative lesser charge (for example, manslaughter as an alternative to murder), even if the defendant is not being tried for that charge. This is equivalent to the power of the jury in trials on indictment with a jury.

33.     Subsection (6) requires the court to provide a reasoned verdict if the defendant is convicted of one or more offences. The verdict must be provided at the time of conviction or as soon as is practicable afterwards. There is no requirement for the court to provide a reasoned verdict for an acquittal.

34.     Subsections (7) and (9) remove restrictions on the right of appeal that would otherwise apply: a defendant can appeal sentence or conviction, and the prosecution can appeal sentence directly to the Court of Appeal, without seeking the leave of the court first. Subsection (8) provides that the period for giving notice of appeal runs from the date of the judgment in the case.

Section 6: Rules of court

35.     This section grants a general power to make rules of court in connection with the non-jury trial provisions of sections 1 to 5.

Section 7: Limitation on challenge of issue of certificate

36.     This section restricts the grounds on which the issue of a certificate by the DPP(NI) under section 1 may be challenged, whether by judicial review or otherwise. Challenge will be possible where it is alleged there has been dishonesty, bad faith or other exceptional circumstances (subsection (1)). It will be for the courts to decide what constitutes exceptional circumstances (though subsection (1)(c) makes clear that this may include exceptional circumstances relating to lack of jurisdiction or error of law).

37.      This reflects the current case law in In Re Shuker and Others [2004 NI 367] which confirmed that the procedure for determining mode of trial of the accused, as applies in Diplock cases, is not a process suitable for the full panoply of judicial review. Judicial review of the Attorney General's decision not to deschedule a Diplock case is reviewable, however, on grounds such as bad faith or dishonesty.

Section 8: Supplementary

38.     This section makes supplementary provision about non-jury trial under this Act. It gives effect to Schedule 1 (consequential amendments) and provides that juries must still decide issues of fitness to be tried, even where the substantive case is to be tried without a jury. Subsection (3) makes clear that the DPP(NI) may issue a certificate in relation to an offence committed before as well as after the coming into force of these provisions. Subsection (4) is intended to enable the consequential amendments in Schedule 1 to be disapplied in relation to cases being heard or to be heard by a court under section 75 of the Terrorism Act 2000 at the time of the coming into force of these provisions.

Section 9: Duration of non-jury trial provisions

39.     This section provides that the provisions in sections 1 to 8 of the Act will expire at the end of the period of two years beginning with the day on which section 1 comes into force. The Secretary of State may extend the duration of the provisions for further consecutive periods of two years by means of an affirmative resolution order. This section also provides, in subsections (4) and (5), that the expiry of the non-jury trial provisions is not to affect trials on indictment being held under these provisions where the indictment has already been presented before their expiry, or the committal of a person for trial under section 4 where the indictment was not presented before the expiry of the provisions. Subsection (6) enables the Secretary of State to make, by affirmative resolution order, amendments to other legislation consequential on the expiry of the non-jury trial provisions.

Juries

Section 10: Restrictions on disclosure of juror information

40.     This section inserts new Articles 26A to 26C into the Juries (Northern Ireland) Order 1996 to place restrictions on the disclosure of information which identifies a person as being or having been a juror or potential juror.

41.     New Article 26A makes it an offence, broadly speaking, for:

• an electoral officer;

• a court official;

• a person providing services to the Northern Ireland Court Service;

• a member of the police;

• a person provided with juror information in accordance with jury check guidelines;

• a juror or person summoned as a juror; or

• any other person who knows (or ought to know) that relevant juror information has previously been unlawfully disclosed,

to unlawfully disclose juror information.

42.     New Article 26A(8) provides that the offence may be tried:

• summarily with a maximum penalty of 6 months' imprisonment, or a fine not exceeding the statutory maximum (currently £5,000), or both; or

• on indictment with a maximum penalty of 2 years' imprisonment or a fine or both.

43.     It shall be a defence for a person to prove that he reasonably believed the disclosure was lawful (new Article 26A(9)).

44.     New Article 26B sets out the circumstances in which juror information may be disclosed with lawful authority. These include disclosure:

• by an electoral officer to another electoral officer or for the purpose of preparing the annual list of potential jurors in accordance with Article 4 of the 1996 Order;

• by a court official to another court official, to a judge, or to a juror or person summoned as a juror;

• to a person or his employee in connection with the provision of services to the Northern Ireland Court Service;

• by a person or his employee providing services to the Northern Ireland Court Service if required by an officer of the court in connection with the provision of those services;

• for the purposes of carrying out additional jury checks as authorised by jury check guidelines;

• for the purposes of criminal proceedings, other than those in relation to which the juror in question has been called to serve as a juror; and

• made with leave of a court.

45.     New Article 26C contains definitions of terms used in new Articles 26A and 26B.

46.     Subsection (2) introduces Schedule 2. Subsection (3) provides that new Articles 26A to 26C will not apply in relation to any juror information that relates to service on a jury before the date when the provisions came into force. Nor will they apply in relation to information made available in jurors lists prepared before that date under Article 4 or 7 of the Juries (Northern Ireland) Order 1996.

Section 11: Chief Electoral Officer to provide additional information to Juries Officer

47.     Currently the Chief Electoral Officer provides the Juries Officer with the name and address of those persons listed in the jurors lists prepared in accordance with Article 4 of the Juries (Northern Ireland) Order 1996. Section 11 amends Article 4 of the 1996 Order so as to require the Chief Electoral Officer to also provide the date of birth and national insurance number of each person on the list. The purpose of this amendment is to enable the Northern Ireland Court Service to carry out routine criminal record checks to prevent disqualified persons from serving as jurors. Section 11 also amends Articles 4 and 6 of the 1996 Order to provide that this additional information shall be included in any divisional jurors list or jury panel.

Section 12: Jurors found to be disqualified before being summoned

48.     Section 12 amends Article 8 of the Juries (Northern Ireland) Order 1996 to provide that a Juries Officer is not to summon a person included in a jury panel where he is satisfied, as a result of a check carried out by a member of the Northern Ireland Court Service, that the person is disqualified or not qualified for jury service.

Section 13: Abolition of peremptory challenge in criminal cases

49.     Section 13 amends Article 15 of the Juries (Northern Ireland) Order 1996 to remove the right of a person arraigned on indictment to challenge up to twelve jurors without the need to show cause (known as 'peremptory challenge'). It also provides that a judge may hear any challenge for cause in camera or in chambers.

Human Rights Commission

Section 14: Legal proceedings

50.     This section amends section 71(1), and inserts new section 71(2A), (2B), and (2C) into the Northern Ireland Act 1998. It allows the Commission to institute human rights legal proceedings in its own right, and when doing so to rely upon the European Convention on Human Rights, provided that there is, or would be, a victim (as far as that Convention is concerned) of the unlawful act.

Section 15: Investigations: evidence

51.     This section inserts new sections 69A and 69B into the Northern Ireland Act 1998.

52.     New section 69A allows the Commission by notice to require a person to produce documents or information in their possession, or to give oral evidence for the purpose of an investigation. Subsection (4) of new section 69A provides that, before issuing a notice requiring the provision of evidence, the Commission must have concluded that the matter which it is proposing to investigate has not already been sufficiently investigated by another person. Subsection (5) provides the grounds on which a person served with a notice to provide information may apply to the county court to have the notice cancelled. Subsection (7) enables the Commission to apply to a county court for an order requiring a person to provide the information required. Subsection (8) creates four summary criminal offences relating to the failure to comply with a requirement to provide information or give evidence to the Commission and to the falsification of evidence provided. Subsection (10) provides that the Public Prosecution Service may not be required to supply documents or evidence about a decision whether or not to institute or continue criminal proceedings.

53.     New section 69B creates an exemption for national security material from the Commission's power to require the provision of information or evidence under new section 69A. Subsection (1) sets out the circumstances relating to national security, in which a person shall disregard a notice issued under 69A(1). Subsection (4) allows the recipient of a notice under 69A(1) to apply to the High Court for the requirement to provide information to be cancelled on the grounds that it is undesirable for reasons of national security, other than those reasons set out within section 69B(1). Subsection (5) provides that an investigation may not consider whether an intelligence service is acting in a way that is incompatible with human rights; or other matters concerning human rights in relation to an intelligence service.