Criminal Justice Bill Notice of Amendments tabled on 13 February 2013 for Consideration Stage

New Clause

After clause 1 insert -

‘Notification requirements: absence from notified residence

1A. -(1) Part 2 of the Sexual Offences Act 2003 is amended as follows.

(2) After section 85 insert -

“Notification requirements: absence from notified residence

85A. -(1) This section applies to a relevant offender at any time if the last home address notified by him under section 83(1), 84(1) or 85(1) was an address in Northern Ireland such as is mentioned in section 83(7)(a) (sole or main residence).

(2) If the relevant offender intends to be absent from that home address for a period of more than 3 days (“the relevant period”), the relevant offender must, not less than 12 hours before leaving that home address, notify to the police the information set out in subsection (3).

(3) The information is -

(a) the date on which the relevant offender will leave that home address;

(b) such details as the relevant offender holds about -

(i) his travel arrangements during the relevant period;

(ii) his accommodation arrangements during that period;

(iii) his date of return to that home address.

(4) In this section -

“travel arrangements” include, in particular, details of the means of transport to be used and the dates of travel,

“accommodation arrangements” include, in particular, the address of any accommodation at which the relevant offender will spend the night during the relevant period and the nature of that accommodation.

(5) Where -

(a) a relevant offender has given a notification under subsection (2), and

(b) at any time before that mentioned in that subsection, the information notified becomes inaccurate or incomplete,

the relevant offender must give a further notification under subsection (2).

(6) Where a relevant offender -

(a) has notified a date of return to his home address, but

(b) returns to his home address on a date other than that notified,

the relevant offender must notify the date of his actual return to the police within 3 days of his actual return.

(7) Nothing in this section requires an offender to notify any information which falls to be notified in accordance with a requirement imposed by regulations under section 86.

(8) In calculating the relevant period for the purposes of this section there is to be disregarded -

(a) any period or periods which the relevant offender intends to spend at, or travelling directly to or from, an address of the kind mentioned in section 83(5)(g) notified to the police under section 83 or 85;

(b) any period or periods which the relevant offender intends to spend at, or travelling directly to or from, any premises, if his stay at those premises would give rise to a requirement to notify the address of those premises under section 84(1)(c).

(9) This section applies in relation to any relevant period which begins on or after the day after the coming into operation of section (Notification requirements: absence from notified residence) of the Criminal Justice Act (Northern Ireland) 2013.”.

(3) In section 87(1) and (4) (method of notification) for “or 85(1)” substitute “, 85(1) or 85A(2) or (6)”.

(4) In section 91 (offences) -

(a) in subsection (1)(a) after “85(1)” insert “, 85A(2) or (6)”;

(b) in subsection (1)(b) for “or 85(1)” substitute “, 85(1) or 85A(2) or (6)”;

(c) in subsection (3) for “or 85(1)” substitute “, 85(1) or 85A(2) or (6)”.’

Minister of Justice

Clause 3 , Page 2, Line 31

Leave out ‘an EEA State other than’ and insert ‘a country outside’

Minister of Justice

Clause 3 , Page 2, Line 32

Leave out ‘an EEA State other than’ and insert ‘a country outside’

Minister of Justice

Clause 3 , Page 2, Line 35

Leave out ‘an EEA State other than’ and insert ‘a country outside’

Minister of Justice

Clause 3 , Page 3, Line 14

Leave out ‘State’ and insert ‘country’

Minister of Justice

Clause 3 , Page 3, Line 24

Leave out ‘to the modifications set out below’ and insert ‘ -

(a) in all cases, to the modifications set out below; and

(b) in a case where the first condition mentioned in subsection (2) is met by reason of a conviction, finding or caution in a country which is not a member of the Council of Europe, to the further provisions in section 96AA.’

Minister of Justice

Clause 3 , Page 4, Line 18

Leave out ‘State’ and insert ‘country’

Minister of Justice

Clause 3 , Page 4, Line 24

Leave out ‘an EEA State other than’ and insert ‘a country outside’

Minister of Justice

Clause 3 , Page 4, Line 25

At end insert -

‘Convictions, etc. in a country which is not a member of the Council of Europe

96AA. -(1) The further provisions referred to in section 96A(5)(b) are as follows.

(2) Where P is charged with an offence under section 91(1)(a), it is a defence for P to prove that the relevant conviction, finding or caution falls within subsection (4).

(3) P shall cease to be subject to the notification requirements of this Part by virtue of section 96A if the High Court, on an application made by P in accordance with rules of court, so orders; but the High Court shall not make such an order unless it is satisfied that the relevant conviction, finding or caution falls within subsection (4).

(4) A conviction, finding or caution falls within this subsection if the relevant court is satisfied -

(a) that any investigations or proceedings leading to it were conducted in a way which contravened any of the Convention rights which P would have had if those investigations or proceedings had taken place in the United Kingdom; and

(b) that contravention was such that, in the opinion of the court, the conviction, finding or caution cannot safely be relied on for the purposes of meeting the condition in section 96A(2).

(5) In this section -

“the relevant conviction, finding or caution” means the conviction, finding or caution by reason of which P is subject, by virtue of section 96A, to the notification requirements of this Part;

“the relevant court” means -

(a) in a case to which subsection (2) applies, the court before which P is charged;

(b) in a case to which subsection (3) applies, the High Court.”.’

Minister of Justice

Clause 3 , Page 4, Line 26

Leave out from beginning to ‘section 97’ in line 29 and insert -

‘(3) Omit sections 97 to 101 (notification orders).

(4) Subsection (3) (and the related repeals in Part 1 of Schedule 4) do not affect the validity or effect of any order made under section 97 or 100’

Minister of Justice

Clause 3 , Page 4

Leave out line 33 and insert ‘ for “98” substitute “96A(6)”.’

Minister of Justice

Clause 5 , Page 6, Line 2

Leave out paragraph (a)

Minister of Justice

New Clause

After clause 6 insert -

‘Trafficking offences to be triable only on indictment

6A. -(1) In section 57(2) of the Sexual Offences Act 2003 (trafficking into the UK for sexual exploitation) omit paragraph (a).

(2) In section 58(2) of that Act (trafficking within the UK for sexual exploitation) omit paragraph (a).

(3) In section 59(2) of that Act (trafficking out of the UK for sexual exploitation) omit paragraph (a).

(4) In section 4(5) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (trafficking people for exploitation) omit paragraph (b).

(5) This section does not apply in relation to an offence committed before this section comes into operation.’

Minister of Justice

New Clause

After Clause 7 insert -

‘Release on licence of child convicted of serious offence

Release on licence of child convicted of serious offence

7A. - (1) In Article 45(2) of the Criminal Justice (Children) (Northern Ireland) Order 1998 (child convicted of serious offence) for “notwithstanding any other provisions of this Order” substitute “subject to Articles 46 to 46B”.

(2) In Article 45 of that Order after paragraph (2) insert -

“(2A) Where a court passes a sentence under paragraph (2), the court shall specify such part of the sentence as the court considers appropriate as the relevant part of the sentence for the purposes of Article 46 (release on licence).”.

(3) For Article 46 of that Order substitute -

“Release on licence

46. - (1) In this Article -

(a) “P” means a person detained under Article 45(2);

(b) “the Commissioners” means the Parole Commissioners for Northern Ireland;

(c) “the Department” means the Department of Justice; and

(d) references to the relevant part of P’s sentence are references to the part of P’s sentence specified as such under Article 45(2A).

(2) As soon as—

(a) P has served the relevant part of P’s sentence, and

(b) the Commissioners have directed P’s release under this Article,

the Department shall release P on licence.

(3) The Commissioners shall not give a direction under paragraph (2) with respect to P unless—

(a) the Department has referred P’s case to the Commissioners; and

(b) the Commissioners are satisfied that it is no longer necessary for the protection of the public from serious harm that P should be detained.

(4) P may require the Department to refer P’s case to the Commissioners at any time—

(a) after P has served the relevant part of P’s sentence; and

(b) where there has been a previous reference of P’s case to the Commissioners under paragraph (3) or Article 46B(4), after the end of the period of 12 months beginning with the disposal of that reference.

(5) In determining for the purposes of this Article whether P has served the relevant part of P’s sentence, no account shall be taken of any time during which P was unlawfully at large, unless the Department otherwise directs.

(6) The Department may at any time release P on licence if it is satisfied that exceptional circumstances exist which justify P’s release on compassionate grounds.

(7) Before releasing P under paragraph (6), the Department shall consult the Commissioners, unless the circumstances are such as to render such consultation impracticable.

(8) Nothing in this Article requires the Department to release a person in respect of a sentence under Article 45(2) at any time when that person is liable to be detained in respect of any other sentence.

Duration and conditions of licences under Article 46

46A. - (1) Where a person is released on licence under Article 46, the licence shall, unless previously revoked under Article 46B, remain in force until the expiry of the period for which the person was sentenced to be detained.

(2) A person released on licence under Article 46 shall comply with such conditions as may for the time being be specified in the licence (which may include on release conditions as to supervision by a probation officer).

(3) The Department of Justice shall not, except in accordance with recommendations of the Parole Commissioners for Northern Ireland -

(a) include a condition in a licence on release,

(b) subsequently insert a condition in a licence, or

(c) vary or cancel any condition in a licence.

Recall of licensees

46B. —(1) In this Article -

“P” means a person who has been released on licence under Article 46;

“the Commissioners” and “the Department” have the meanings given in Article 46(1).

(2) The Department may revoke P’s licence and recall P to detention -

(a) if recommended to do so by the Commissioners, or

(b) without such a recommendation, if it appears to the Department that it is expedient in the public interest to recall P before such a recommendation is practicable.

(3) P—

(a) shall, on P’s return to detention, be informed of the reasons for the recall and of the right conferred by sub-paragraph (b); and

(b) may make representations in writing to the Department with respect to the recall.

(4) The Department shall refer P’s case to the Commissioners.

(5) Where on a reference under paragraph (4) the Commissioners direct P’s immediate release on licence under Article 46, the Department shall give effect to the direction.

(6) The Commissioners shall not give a direction under paragraph (5) unless they are satisfied that it is no longer necessary for the protection of the public from serious harm that P should be detained.

(7) On the revocation of P’s licence, P shall be liable to be detained in pursuance of P’s sentence and, if at large, shall be treated as being unlawfully at large.”.

(4) In Article 46(3) of the Criminal Justice (Northern Ireland) Order 2008 (functions of Parole Commissioners for Northern Ireland) at the end add “or Articles 46 to 46B of the Criminal Justice (Children) (Northern Ireland) Order 1998.”

(5) Where -

(a) on commencement a person is detained in pursuance of a sentence under Article 45(2) of the 1998 Order, and

(b) the Department, after consultation with the Lord Chief Justice and the trial judge if available, certifies its opinion that, if the amendments made by this section had been in operation at the time when that person was sentenced, the court by which that person was sentenced would have specified as the relevant part of the sentence such part as is specified in the certificate,

Article 46 of the 1998 Order (as substituted) shall apply as if the relevant part of that person’s sentence for the purposes of that Article were the part specified in the certificate.

(6) But subsection (5) does not apply (and subsection (7) applies instead) where that person is a person whose licence has been revoked under Article 46(2) of the 1998 Order.

(7) Where this subsection applies, paragraphs (3) to (6) of Article 46B of the 1998 Order have effect as if that person had been recalled to prison under paragraph (2) of that Article on commencement.

(8) Articles 46A and 46B of the 1998 Order apply to an existing licensee as they apply to a person who is released on licence under Article 46 of that Order (as substituted).

(9) In this section -

“commencement” means the date on which this section comes into operation;

“existing licensee” means a person who, before commencement, has been discharged on licence under Article 46 of the 1998 Order and whose licence is in force on commencement;

“the 1998 Order” means the Criminal Justice (Children) (Northern Ireland) Order 1998.’

Minister of Justice

New Clause

After clause 7 insert -

‘Examination of accused through intermediary

Examination of accused through intermediary

7B. -(1) In section 12(1) of the Justice Act (Northern Ireland) 2011 (which at the passing of this Act is not in operation), the inserted Article 21BA of the Criminal Evidence (Northern Ireland) Order 1999 is amended as follows.

(2) At the beginning of paragraph (2) insert “Subject to paragraph (2A),”.

(3) After paragraph (2) insert -

“(2A) A court may not give a direction under paragraph (3) unless—

(a) the court has been notified by the Department of Justice that arrangements for implementing such a direction have been made in relation to that court; and

(b) the notice has not been withdrawn.

(2B) The withdrawal of a notice given to a court under paragraph (2A) does not affect the operation of any direction under paragraph (3) given by that court before the notice is withdrawn.”.’

Minister of Justice

Clause 9 , Page 8, Line 2

Leave out subsections (1) and (2) and insert -

‘(1) Except as provided by subsection (2), this Act comes into operation on the day after Royal Assent,

(2) The following provisions of this Act come into operation on such day or days as the Department may by order appoint -

(a) section 1 and Schedule 1;

(b) section (Notification requirements: absence from notified address);

(c) sections 3 and 4;

(d) section 7 and Schedules 2 and 3;

(e) Parts 1 and 3 of Schedule 4 and section 8 so far as relating thereto.’

Minister of Justice

Schedule 2 , Page 15, Line 14

Leave out from ‘the conclusion’ to end of line 17 and insert ‘the Chief Constable determines that the material is of no evidential value in relation to -

(a) the investigation of the offence; or

(b) proceedings against any person for the offence.’

Minister of Justice

Schedule 2 , Page 15, Line 41

Leave out from beginning to end of line 3 on page 16 and insert ‘and

(c) the Northern Ireland Commissioner for the Retention of Biometric Material has consented under Article 63DA to the retention of the material.’

Minister of Justice

Schedule 2 , Page 16, Line 37

Leave out paragraph (13)

Minister of Justice

Schedule 2 , Page 17

Leave out lines 12 and 13 and insert -

‘Retention of Article 63B material by virtue of Article 63D(5): consent of Commissioner

63DA. -(1) T he Chief Constable may apply under paragraph (2) or (3) to the Commissioner appointed under Article 63D(11) for consent to the retention of Article 63B material which falls within Article 63D(5)(a) and (b).

(2) The Chief Constable may make an application under this paragraph if the Chief Constable considers that the material was taken (or, in the case of a DNA profile, derived from a sample taken) in connection with the investigation of an offence where any alleged victim of the offence was, at the time of the offence—

(a) under the age of 18,

(b) a vulnerable adult, or

(c) associated with the person to whom the material relates.

(3) The Chief Constable may make an application under this paragraph if the Chief Constable considers that—

(a) the material is not material to which paragraph (2) relates, but

(b) the retention of the material is necessary in the interests of public protection.

(4) The Department of Justice may by order amend paragraph (2) or (3).

(5) The Commissioner may, on an application under this Article, consent to the retention of material to which the application relates if the Commissioner considers that it is appropriate to retain the material.

(6) But where notice is given under paragraph (7) in relation to the application, the Commissioner must, before deciding whether or not to give consent, consider any representations by the person to whom the material relates which are made within the period of 28 days beginning with the day on which the notice is given.

(7) The Chief Constable must give to the person to whom the material relates notice of—

(a) an application under this Article, and

(b) the right to make representations.

(8) Without prejudice to section 24 of the Interpretation Act (Northern Ireland) 1954 (service of documents), a notice under paragraph (7) may, in particular, be given to a person by sending it to the person by email or other electronic means.

(9) The requirement in paragraph (7) does not apply if the whereabouts of the person to whom the material relates is not known and cannot, after reasonable inquiry, be ascertained by the Chief Constable.

(10) An application or notice under this Article must be in writing.

(11) In this Article—

“victim” includes intended victim,

“vulnerable adult” means a person aged 18 or over whose ability to protect himself or herself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise,

and the reference in paragraph (2)(c) to a person being associated with another person is to be read in accordance with Article 3(3) to (6) of the Family Homes and Domestic Violence (Northern Ireland) Order 1998.’

Minister of Justice

Schedule 2 , Page 19, Line 14

At end insert -

‘Retention of Article 63B material: persons completing diversionary youth conference

63HB. -(1) This Article applies to Article 63B material which -

(a) relates to a person who has completed the diversionary youth conference process with respect to a recordable offence; and

(b) was taken (or, in the case of a DNA profile, derived from a sample taken) in connection with the investigation of the offence.

(2) The material may be retained until -

(a) in the case of fingerprints, the end of the period of 5 years beginning with the date on which the fingerprints were taken, and

(b) in the case of a DNA profile, the end of the period of 5 years beginning with -

(i) the date on which the DNA sample from which the profile was derived was taken, or

(ii) if the profile was derived from more than one DNA sample, the date on which the first of those samples was taken.

(3) For the purposes of this Article, a person completes the diversionary youth conference process with respect to an offence if (and only if) -

(a) a diversionary youth conference under Part 3A of the Criminal Justice (Children) (Northern Ireland) Order 1998 has been completed with respect to that person and that offence, and

(b) the Director of Public Prosecutions, having considered the report of the youth conference co-ordinator, has determined not to institute proceedings against the person in respect of the offence or, as the case may be, not to continue proceedings already instituted against the person in respect of the offence.’

Minister of Justice

Schedule 2 , Page 19, Line 14

At end insert -

‘ Retention of Article 63B material: persons given a penalty notice

63HC. - (1) This Article applies to Article 63B material which—

(a) relates to a person who is given a penalty notice under section 60 of the Justice Act (Northern Ireland) 2011 and in respect of whom no proceedings are brought for the offence to which the notice relates, and

(b) was taken (or, in the case of a DNA profile, derived from a sample taken) from the person in connection with the investigation of the offence to which the notice relates.

(2) The material may be retained—

(a) in the case of fingerprints, for a period of 2 years beginning with the date on which the fingerprints were taken,

(b) in the case of a DNA profile, for a period of 2 years beginning with—

(i) the date on which the DNA sample from which the profile was derived was taken, or

(ii) if the profile was derived from more than one DNA sample, the date on which the first of those samples was taken.’

Minister of Justice

Schedule 3 , Page 23, Line 12

Leave out from ‘that has come’ to the end of line 13 and insert ‘which -

(a) has been taken by the police from a person -

(i) under a power conferred by Article 62 or 63; or

(ii) with the consent of that person, in connection with the investigation of an offence by the police;

(b) consists of or includes human cells; and

(c) was taken for the purpose of deriving a DNA profile from it;’

Minister of Justice

Schedule 3 , Page 24, Line 6

Leave out from beginning to “18(8)(b)” in line 9 and insert -

‘5. In Article 89 (orders and regulations) after paragraph (2) insert -

“(2A) An order under Article 63DA(4) shall not be made unless a draft of the order has been laid before, and approved by a resolution of, the Assembly.”.

The Counter-Terrorism Act 2008 (c. 28)

6. In section 18(8)(c)’

Minister of Justice

Schedule 4 , Page 24, Line 17

At end insert -

‘part 1

Sex Offenders

Short Title

Extent of repeal

The Sexual Offences Act 2003 (c. 42)

Sections 97 to 101.

In section 136(8) “101”. ’

Minister of Justice

Schedule 4 , Page 24

Leave out line 25 and insert -

 

‘In section 4(5), paragraph (b) and the word “or” immediately before it.

Section 5(1).

Section 5(13).’

Minister of Justice

Schedule 4 , Page 24, Line 26, Column 2

At beginning insert -

 

‘Section 57(2)(a).

Section 58(2)(a).

Section 59(2)(a).’

Minister of Justice

Long Title

Leave out ‘and to’ and insert ‘; to’

Minister of Justice

Long Title

At end insert ‘; to provide for the release on licence of persons detained under Article 45(2) of the Criminal Justice (Children) (Northern Ireland) Order 1998’

Minister of Justice

Long Title

At end insert ‘; and to amend Article 21BA of the Criminal Evidence (Northern Ireland) Order 1999.’

Minister of Justice

New Clause

After clause 7 insert -

Abolition of scandalising the judiciary as form of contempt of court

7A. -(1) Scandalising the judiciary (also referred to as scandalising the court or scandalising judges) is abolished as a form of contempt of court under the common law.

(2) That abolition does not prevent proceedings for contempt of court being brought against a person for conduct that immediately before that abolition would have constituted both scandalising the judiciary and some other form of contempt of court.’

Chair, Committee for Justice

Long Title

At end insert ‘and to abolish the common law offence of scandalising the judiciary’

Chair, Committee for Justice

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