Report on the Justice No.2 Bill
Session: Session currently unavailable
Date: 14 January 2016
Reference: NIA 292/11-16
1. This report sets out the Committee for Justice's consideration of the Justice No.2 Bill.
2. The Justice No.2 Bill consists of 47 clauses and 3 schedules covering a range of policy areas and its purpose is to improve current arrangements for the collection and enforcement of financial penalties, improve the provision of prison services in Northern Ireland, improve upon current statutory provision in relation to certain sex offending and extend lay visiting arrangements in police stations.
3. In addition to the main clauses of the Bill, the Committee considered a range of proposed amendments brought forward by the Department primarily relating to Part 1 of the Bill – The Collection and Enforcement of Financial Penalties and Part 2 – Prison Ombudsman. The proposed amendments covered a range of new policy proposals relating to the main aims of the Bill and addressed issues raised by the Attorney General for Northern Ireland at the time of the Bill's introduction. They also included a number of minor drafting amendments.
4. The Committee also considered a range of other proposed provisions for inclusion in the Bill brought to its attention by the Department of Justice, the Department of Agriculture and Rural Development, the NI Human Rights Commission, Lord Morrow MLA and Basil McCrea MLA and a number of possible legislative changes to improve online protection for children following its conference on 'Justice in a Digital Age' in October 2015.
5. The Committee requested evidence from interested organisations as well as the Department of Justice, the Department of Agriculture and Rural Development and the Department of Health, Social Services and Public Safety as part of its deliberations on the Bill and the proposed amendments. The Committee for Agriculture and Rural Development and the Committee for Social Development also assisted the Committee in considering proposals specific to their respective Departments.
6. Twenty one written submissions were received and the Committee held nine oral evidence sessions with interested organisations as well as exploring the issues raised in the written and oral evidence with Department of Justice officials both in writing and in oral briefings. The Committee considered the provisions of the Bill and the proposed amendments at 16 meetings.
Delegated Powers in the Bill
7. The Committee sought advice from the Assembly Examiner of Statutory Rules on the delegated powers within the Bill to make subordinate legislation and the choice of Assembly control provided for each power.
8. The Examiner considered that most of the delegated powers were appropriate but drew the attention of the Committee to the regulation-making powers in Clause 18 (6) (b). The Examiner indicated that subsection 6(b) of Clause 18 was either intended to cover a matter of substance and import, in which case it should probably be fully set out on the face of the Bill, or it should simply be left to the discretion of the court by omitting the regulation-making power from the Bill entirely.
9. The Committee referred the Examiner's analysis to the Department of Justice and it confirmed that, in response to the issue raised, it would bring forward an amendment to address the matter.
Key Issues Relating to the Clauses and Schedules in the Bill
10. At its meeting on 7 January 2016 the Committee undertook its formal clause by clause consideration and agreed the clauses in the Bill as drafted or as drafted with proposed departmental amendments apart from Clause 45 which enables the Department by order to make any supplementary, incidental, consequential, transitional or other provision necessary to give full effect to the provisions of the Act and which the Department had already indicated it intended to remove from the Bill.
11. Some Members however expressed reservations about the wider impact of the means testing and deductions from benefits proposals, the proposed interim bank account orders and bank account orders and the vehicle seizure powers in the fine collection and enforcement provisions and about Clause 38 which requires the Prison Ombudsman to have regard to guidance issued by the Secretary of State in relation to any matter connected with national security. They also highlighted their intention to bring forward an amendment to Clause 36 to provide the Ombudsman with the power to compel witnesses and outlined their support for the views expressed by one organisation in the evidence submitted to the Committee that the criterion in Schedule 3 that states that the Ombudsman may be removed from Office if that person has been convicted of a criminal offence should be removed from the Bill.
12. The Committee also agreed to bring forward two amendments at Consideration Stage. The first relates to the fine collection and enforcement provisions and will provide an enabling clause to allow the Department to provide the Court with powers to require offenders to satisfy a fine by undertaking a rehabilitative course to address the causes of offending behaviour such as drug or alcohol addiction as an alternative to Supervised Activity Orders. The second will create a new offence of disclosing private sexual photographs and images with intent to cause distress.
13. The Committee also supported a range of amendments proposed by the Department to introduce provisions on issues unrelated to the content of the Bill and a Department of Agriculture and Rural Development amendment to increase penalties for animal welfare offences.
Part 1 and Schedules 1 and 2 - The Collection and Enforcement of Financial Penalties
14. Part 1 and Schedules 1 and 2 of the Justice No.2 Bill will create an entirely new regime for the collection and enforcement of financial penalties. It will create collection officers whose function it will be to operate and enforce collection orders as imposed by courts. Collection officers will be designated in law by the Department with a series of powers, provided by way of the collection order, which will be designed to, by and large, replace the current police role in collection and enforcement. The provisions also aim to avoid people going to prison for non-payment of fines wherever possible.
15. Respondents were generally supportive of the primary aims of the provisions to improve the fine collection system and prevent fine default occurring and in particular the creation of a more civilian based collection service with civil servants as collection officers as an alternative to police officers and the move away from custodial sentences for fine default.
16. A number of specific issues, particularly in relation to the options available to secure the payment of fines through deductions from benefits, attachment of earnings orders, interim bank account orders, bank account orders and vehicle seizure orders and the potential impact on families and dependents of fine defaulters; the arrangements for information access and sharing; and Supervised Activity Orderswere however raised.
17. A judgement delivered by the Divisional Court in March 2013 in five judicial reviews relating to the arrangements for imposing and enforcing fines and other monetary penalties in Northern Ireland ruled that the long established practice for dealing with non-payment of fines and other monetary penalties was unlawful and that a fine defaulter must be brought back to court for a further 'default' hearing before any penalty for default could be imposed. As a result revised arrangements had to be adopted to address the defects.
18. A Public Accounts Committee (PAC) report published in January 2015 on the NI Courts and Tribunals Service Trust Statement for the year ended 31 March 2013 also outlined that the value of unpaid financial penalties is significant and the Comptroller and Auditor General had raised concerns about the fine collection and enforcement measures and the system for dealing with fine defaulters. The PAC found that, despite the significant levels of outstanding debt, the Department of Justice had failed to coordinate a joined up approach to fine collection and as a result governance arrangements were unacceptable. This had contributed to a number of failings including 6,682 paper warrants with a value of £1.1 million going missing and suspected fraud.
19. Figures provided by the Department to the Committee for Justice in early 2015 indicated that the total outstanding debt at 31 March 2014 was £22.684 million of which it estimated that £7.335 million is impaired and unlikely to be collected. The costs associated with enforcing the current system are also significant, as it takes up substantial police time and results in a large number of very short terms of imprisonment with the associated costs to the prison service.
20. In these times of financial constraint this is wasted funds that could be put to very good use and is unacceptable. It was within this context, and recognising the necessity to address as soon as possible the ongoing issues in the current system, particularly in relation to the levels of outstanding fines, the amount of money not being collected and the time and resources required to operate the system that the Committee considered the provisions of Part 1 and Schedules 1 and 2 of the Bill and the proposed amendments.
21. The Committee welcomed the improvements the Department anticipates following implementation of the new fine collection and enforcement arrangements which include an increase in the current level of payment rates from 70% to closer to 80% and a reduction in the committal rate to prison as a result of the non-payment of fines.
22. While the Committee agreed that it was content with clauses 1 to 27 and Schedules 1 and 2 of the Bill and the proposed departmental amendments some Members expressed reservations about the wider impact of the means testing and deductions from benefits proposals, the proposed interim bank account orders and bank account orders and the vehicle seizure powers and indicated that they would be seeking further assurances and commitments from the Minister of Justice at Consideration Stage regarding safeguarding and protecting dependents and vulnerable people.
23. The Committee also considered extending the powers of the court to enable offenders to be required to satisfy a fine by undertaking appropriate courses to address offending behaviour such as drug or alcohol treatment as an alternative to Supervised Activity Orders. The Committee viewed the proposal, which represents the problem solving model of justice, as helpful to the Department's stated aim of addressing offending behaviour and preventing reoffending. Noting that the Department was willing to give an undertaking to do further work in relation to the proposal with a view to potentially enhancing the fine collection arrangements in the future, it agreed that it would take forward an amendment at Consideration Stage to include an enabling clause in the Bill that would allow the Department to provide such powers to the Court in due course when suitable arrangements are in place.
Part 2 and Schedule 3 – Prison Ombudsman
24. Part 2 and Schedule 3 of the Bill creates the Office of Prison Ombudsman for Northern Ireland and sets out the main functions of the office which are to deal with complaints, death in custody investigations and investigations requested by the Department. These functions are currently carried out by the Prisoner Ombudsman on a non-statutory basis. Detailed in the Bill are conditions for the eligibility of complaints, the circumstances in which an investigation may be initiated or deferred, reporting arrangements and provision for regulations to be made in relation to these matters.
25. While there was widespread support for placing the functions of the Prisoner Ombudsman on a statutory footing, there was a divergence of views on the key provisions relating to the creation of the Office of Prison Ombudsman with some respondents, including the current Prisoner Ombudsman for Northern Ireland supporting the proposals and other respondents, including the NI Ombudsman, raising issues regarding the proposed model, appointment arrangements and remit. Other issues raised also included the Ombudsman's proposed powers in relation to gathering information and calling witnesses.
26. The Committee, having considered the evidence received including the views of the current Prisoner Ombudsman on how the office operates in its current form, agreed that it was content with clauses 28 to 40 and Schedule 3 of the Bill.
27. Some Members however outlined reservations regarding Clause 38 and the guidance from the Secretary of State to the Prison Ombudsman in relation to matters connected with national security on the basis that the current Prisoner Ombudsman had stated that it has never been used and it is therefore unnecessary to legislate for it and indicated that they intended to oppose this clause at Consideration Stage of the Bill. They also outlined their support for the view expressed by NIACRO in its evidence that the criterion in Schedule 3 that states that the Ombudsman may be removed from Office if that person has been convicted of a criminal offence is illogical and incompatible with a desistance approach and should be removed from the Bill.
28. Some Members also highlighted their intention to bring forward, at Consideration Stage, an amendment to Clause 36 to provide the Ombudsman with the power to compel witnesses.
29. The Committee also discussed a proposal that the Ombudsman should have the power to initiate his own investigations and noted that under the current provisions the Prison Ombudsman has to receive a complaint or a request from the Minister of Justice before he can undertake an investigation. The Committee agreed that it was appropriate for the Prison Ombudsman to be able to initiate investigations of his own volition which would emphasise his independence and it would support an amendment to be brought forward by the Department to make this change.
30. The Committee also supported proposed departmental amendments to enhance the provisions and enable the Ombudsman to defer investigations where he/she considers it necessary to do so, standardise the requirement for the Ombudsman to inform police of a suspected criminal offence as part of any investigation he is conducting (rather than just as part of an investigation into a death in custody), place a duty on the Minister of Justice to request the Ombudsman to conduct an investigation in cases of near-death and add the Attorney General for Northern Ireland to the list of bodies to which protected information may be disclosed.
Part 3 – Miscellaneous
31. Part 3 of the Bill includes provisions relating to extending the scope of the statutory custody visitor scheme to include lay visitors to all police stations, an offence of possession of extreme pornographic images and a scheme for the early removal of prisoners liable to removal from the United Kingdom.
32. No particular issues were raised in relation to these provisions and the Committee agreed that it was content with clauses 41 to 44 of the Bill.
Part 4 - General
33. Part 4 of the Bill makes a number of general provisions dealing with regulation and order making, commencement and short title, and ancillary provision.
34. The main issues raised in the evidence on Part 4 of the Bill related to the breadth and scope of Clause 45 and, in relation to Clause 47, a request by firearms stakeholders that the proposed firearms amendments should commence immediately the Act receives Royal Assent.
35. The Committee, when scrutinising the previous Justice Bill, raised substantial concerns about a similar Clause (Clause 86) to Clause 45 and the wide ranging powers it provided. The Committee was of the view that powers should be provided for an exact purpose rather than be broad and general in nature and agreed to oppose the inclusion of the Clause in that Bill. During the passage of that Bill through the Assembly the Clause was removed and replaced with one providing much narrower and more specific powers.
36. In light of the Committee's position in relation to such clauses the departmental officials, when briefing the Committee on the principles of the Justice No.2 Bill in June 2015, advised that they intended to revisit Clause 45 with a view to bringing forward an amendment to reduce its scope.
37. The Department subsequently indicated that it intended to remove Clause 45 from the Bill in its entirety and replace it with a power to make ancillary provisions under more restricted circumstances limited to Part 1 of the Bill. This would replicate the model developed in the Justice Bill to address the Committee's concerns with this type of clause. The Department provided the text of an amendment to Clause 23 and several consequential amendments to Clauses 46 and 47.
38. Given its opposition to such clauses the Committee welcomed and supported the Department's intention to remove Clause 45 from the Bill and, having clarified the extent of the powers to be provided by the proposed amendment to Clause 23 and examples of when the Department was likely to need to use such powers, agreed that it was content with the proposed amendment.
39. The Committee also agreed that it was content with clauses 46 and 47 and a number of departmental consequential amendments and noted the confirmation provided by the Department that the proposed provisions relating to changes to firearms legislation provide for commencement the day following Royal Assent.
Consideration of other proposed provisions for inclusion in the Bill
40. Six proposals for new provisions unrelated to the areas currently covered in the Justice No.2 Bill were brought to the attention of the Committee during the Committee Stage of the Bill. Three were proposed by the Department of Justice, one was proposed by the Department of Agriculture and Rural Development, one was proposed by Lord Morrow MLA and one was proposed by Basil McCrea MLA.
41. The Committee also considered a proposal by the NI Human Rights Commission for a new offence relating to 'revenge porn' and possible legislative changes to improve online protection for children following its conference on 'Justice in a Digital Age' in October 2015.
New offence relating to 'Revenge Porn'
42. The NI Human Rights Commission, in its written submission to the Committee on the Justice No.2 Bill, highlighted that, while the Criminal Justice and Courts Act 2015 created the new offence of disclosing private sexual photographs and films with intent to cause distress (known as 'revenge porn') in England and Wales, no such offence existed in Northern Ireland. A person found guilty of such an offence is liable on conviction on indictment to a term not exceeding 2 years or a fine or both and on summary conviction to imprisonment for a term not exceeding 12 months, or a fine or both.The Commission recommended that consideration should be given to introducing an amendment to the Bill to provide for such an offence in Northern Ireland which would bring the law into line with England and Wales and give due regard to the Optional Protocol to the CRC and CEDAW.
43. In its written response to the proposal the Department of Justice indicated that, given time constraints and other pressing issues, it was not possible to give appropriate policy consideration to the matter in time to include it in the Justice No.2 Bill. The Department therefore intended to include the proposal in a policy consultation for future legislative change as part of a wider review into a number of related areas covering certain sexual offences and child protection.
44. At its meeting on 10 December 2015 the Committee discussed the proposal. The Committee is aware of the increasing incidence of this behaviour and the distress it can cause to individuals and is of the view that it is important to provide the same level of protection in Northern Ireland as that provided in England and Wales. It therefore agreed to take forward an amendment at Consideration Stage to create a new offence of disclosing private sexual photographs and films with intent to cause distress and subsequently agreed the text of the amendment.
Possible Legislative Changes to Improve Online Protection for Children
45. On 15 October 2015 the Committee for Justice held a conference on 'Justice in a Digital Age' during which Jim Gamble, Chief Executive of INEQE, gave a presentation on social media and internet protection and highlighted a number of areas where he believed the legislation could be changed to improve on-line protection for children.
46. The Committee subsequently invited Mr Gamble to give oral evidence on his proposed legislative changes at its meeting on 5 November 2015 after which it intended to consider whether to take them forward as amendments to the Justice No.2 Bill. The proposals cover the following:
- An amendment to the current law so that a child or young person under the age of 18 who takes, makes, distributes or possesses an image of themselves will commit no criminal offence unless it is done with malicious intent.
- The Protection of Children (Northern Ireland Order) 1978 as amended by the Sexual Offences (Northern Ireland) Order 2008 currently makes it an offence for a person below the age of 18 to take, make, show, distribute or possess an image of themselves. The proposed amendments would result in:
- A child or young person under the age of 18 who takes, makes, shows, distributes or possesses an image of themselves will commit no criminal offence.A child or young person under the age of 18 who takes, makes, shows, distributes or possesses an image of another child under the age of 18 with malicious intent does however commit a criminal offence.
- An amendment to existing law or the creation of a new law to deal with harassment and the anonymity provided by the internet.
- The proposal is to amend the Protection from Harassment (Northern Ireland) Order 1997 or create a new law to deal with the aggravated impact when an individual or individuals use the anonymity provided by the Internet and/ or the ability to create multiple online accounts to harass another person.
- The creation of a new law relating to circumstances where a person of 18 or above, masquerades as a person below that age.
- The proposal is to create a new law to prohibit an individual 18 or above, who masquerades as someone below that age and engages online with an individual they know or believe to be, under the age of 18. An individual who did so would commit a criminal offence unless they can prove that they did so with reasonable cause or lawful authority. In reasonable cause defenses, the burden of proof will shift to the alleged offender.
47. Following the evidence session the Committee agreed to seek the written views of the Department of Justice, the PSNI, the Public Prosecution Service and the NI Human Rights Commission to assist its consideration of the proposals.
48. The Committee considered the proposed legislative changes and the responses from the organisations, which highlighted a range of issues that would need to be taken account of if any legislative changes were being considered, at its meeting on 7 January 2016.
49. The Committee is very aware that the development of the internet has created challenges for the law and believes that it is essential that the law responds and adapts to these challenges and provides the law enforcement agencies with sufficient and proper tools to tackle new and emerging types of criminal behaviour. The Committee Conference on 'Justice in a Digital Age' very successfully provided a forum to discuss these issues and identify possible solutions.
50. The Committee is supportive of the proposals but recognises that this is a complex area of law and any changes will require careful consideration to ensure that there are no unintended consequences.
51. The Committee noted that the Minister of Justice was concerned that bringing forward amendments at this stage would result in changes being made to this important area of the law without the benefit of proper policy consideration and consultation and had asked it to support the inclusion of the proposals in a policy consultation for future legislative change, as part of a wider review into a number of related areas covering certain sexual offences and child protection, rather than pursuing them as part of the Justice No.2 Bill.
52. The Committee agreed that it is content for the proposals to be included in the proposed policy consultation but indicated that it wishes to see them progressed as soon as possible and therefore wants to receive a briefing on the proposed consultation at the earliest opportunity.
Court Funds Office
53. In December 2015 departmental officials attended the Committee to outline the results of a consultation on fee options to enable the Northern Ireland Courts and Tribunals Service to introduce a new full cost recovery charging model in 2016 to ensure the cost of administering the Court Funds Office is met by fees charged to service users rather than the general taxpayer. The officials also outlined that recent legal advice had raised doubts regarding whether there was sufficient authority to apply the proposed charges under the provision of Section 116 of the Judicature (NI) Act 1978. The Department was therefore proposing to introduce the required authority by changing the necessary legislation by way of an amendment to the Justice No.2 Bill and provided the text of the proposed amendment.
54. The Committee noted the results of the consultation and the proposed fee structure for the Court Funds Office and agreed that it was content with the proposed amendment.
Direct Committal for Trial
55. The Department advised the Committee in written correspondence of a proposed amendment to close a lacuna in the direct committal for trial provisions in Section 9 of the Justice Act (Northern Ireland) 2015.
56. The Department outlined that Section 9(3)(b) of the 2015 Act provides that the direct committal arrangements do not apply where the court is to proceed summarily with an offence under Article 45 of the Magistrates' Courts (NI) Order 1981 or under Article 17 of the Criminal Justice (Children) (NI) Order 1998. It had received advice from the Departmental Solicitor's Office that suggested that section 9 of the Act may not be sufficiently explicit to enable offences which are caught by Article 45 of the 1981 Order and Article 17 of the 1998 Order to attract the direct committal arrangements where the prosecution decides to proceed on indictment.
57. The Department stated that the policy intention was that these cases should be capable of being directly transferred where it is decided to proceed on indictment and the Minister of Justice believes that there is merit in amending Section 9 of the Justice Act (Northern Ireland) 2015 to put this matter beyond doubt.
58. The Committee agreed that it was content with the proposed amendment.
Changes to Firearms Legislation
59. The Committee has been considering proposals by the Department of Justice to increase firearms licensing fees and make a range of other amendments to firearms legislation since May 2012.
60. In June 2015 amendments in relation to firearms fees, the age of young shooters and the banded system were tabled by several MLAs at Further Consideration Stage of the Justice Bill. Officials subsequently advised the Committee that, following further discussions, a level of agreement had been reached between the Department and the main firearms stakeholders on fees and bands which meant that the Department would bring forward legislation in its next Bill (the Justice No.2 Bill) depending on the outcome of the amendments tabled for the Justice Bill. As a result of the agreement reached the Members did not move the amendments at Further Consideration Stage of the Justice Bill to enable the Department to bring forward the legislative changes in the Justice No.2 Bill.
61. Following introduction of the Justice No.2 Bill, the Department advised the Committee of the Minister's intention to table amendments to the Firearms (NI) Order 2004 at Consideration Stage of the Bill. The amendments would:
- introduce a system to enable firearms dealers to exchange a firearm, for a licence holder, within a band as long as certain conditions are met. A licence holder would also be permitted to trade in a firearm without replacing it. Dealers would be authorised or conditioned to carry out such transactions.
- permit a person of 12 years of age or older to be in possession of a shotgun in a police approved clay target range while under the supervision of a person who has held a shotgun certificate for at least 5 years. The Minister also proposed to permit a person from the age of 16 to engage in all shotgun activities – sporting and vermin uses – under existing supervision requirements.
- Make changes to fee types – changes to current fees would be made by subordinate legislation.
62. The Committee sought written and oral evidence from key stakeholders on the proposals. When representatives from the British Association for Shooting and Conservation (BASC), Countryside Alliance Ireland (CAI) and Gun Trade Guild NI (GTGNI) attended the on 17 November 2015 they raised a number of issues regarding the proposals and lack of engagement by the Department on the amendments. They also indicated that they were suggesting a compromise proposal regarding the age of young shooters which they hoped the Minister and the Committee would support.
63. Departmental officials subsequently briefed the Committee on several occasions on the detail of the proposed amendments to the Firearms (NI) Order 2004 and provided the text of the amendments. They confirmed that the Minister remained of the view that the age reduction to 12 should be for clay target shooting only and not for shooting live quarry including vermin and he was not therefore willing to accept the compromise proposal put forward by BASC/CAI/GTGNI. He believed the amendments were appropriate to deliver his policy objective and highlighted that this is accepted by a number of other stakeholders.
64. The Committee has invested a lot of time and effort in scrutinising the proposals to amend the firearms legislation going back as far as 2012 and during that time has taken oral evidence from a wide range of key stakeholders and interested parties. From the outset the Committee encouraged the Department to engage with the key stakeholders and undertake dialogue with a view to presenting an agreed set of changes. While some organisations remain opposed to the proposals relating to young shooters the Committee is pleased that an accommodation appears to have been reached regarding the banded system and fees.
65. The Committee agreed that it is content with the proposed amendments to the Firearms (NI) Order 2004 but noted that the Department had undertaken to provide clarification that the wording of 50A(6) of the proposed new Schedule which refers to a firearms certificate will not exclude a person from outside Northern Ireland undertaking supervision if they hold a shotgun certificate. If the clarification indicates that this is not the case an amendment will be necessary at Consideration Stage.
Penalties for Animal Welfare Offences
66. In November 2015 the Committee for Agriculture and Rural Development wrote to the Committee advising of the intention of the Department of Agriculture and Rural Development (DARD) to increase the statutory maximum penalties in the Welfare of Animals Act (NI) 2011. The proposal arose out of a joint DARD and Department of Justice review into the implementation of the 2011 Act following an Assembly debate on animal cruelty. While DARD had policy responsibility for animal welfare it did not currently have a suitable legislative vehicle to bring forward the necessary amendments. Given the importance of this matter and to avoid unnecessary delay, the Agriculture Minister was therefore proposing to make the amendments in the Justice No.2 Bill.
67. The proposed amendments will increase the maximum prison term to five years in the case of indictable offences; amend certain offences so that they become hybrid offences; and increase the maximum penalty available on summary conviction for two of the more serious hybrid offences to twelve months imprisonment and a £20,000 fine. The aim of the amendments is to reflect the serious nature of such offences and to provide some of the toughest penalties for animal cruelty of any jurisdiction in these islands.
68. To assist its consideration of the proposals the Committee sought the views of the Department of Justice. The Minister of Justice responded outlining that he had considered the proposed amendments in the context of the wider sentencing framework and the penalties that are available in neighbouring jurisdictions for animal welfare offences and believes that, in light of some of the extreme cases of animal cruelty that have occurred since the introduction of the 2011 Act, increasing the maximum penalties in this way is appropriate and will send out the message that animal cruelty will not be tolerated. The Justice Minister indicated that he was therefore supportive of the proposed amendments and was content that they should be made in the Justice No.2 Bill. The Minister also advised that he had agreed in principle to add animal cruelty offences to the Unduly Lenient Sentencing Scheme to further strengthen the law around animal cruelty.
69. The Committee for Agriculture and Rural Development confirmed that Members welcomed the increase in penalties, but had ongoing concerns about enforcement, the possibility that some individuals – those disqualified from keeping animals and farmed animals in particular, may be circumventing the Act and the need to keep a register of those with disqualification or deprivation orders under the Act.
70. The Committee is very aware of public concern about some sentences handed down for convictions for animal welfare offences under the Welfare of Animals Act (Northern Ireland) 2011. It therefore welcomed the intention of the Department of Agriculture and Rural Development to bring forward amendments that will ensure tougher penalties for such offences and supported the proposed amendments.
Enhanced Protection for the Emergency Services
71. At the invitation of the Committee Lord Morrow MLA attended the meeting on 17 November 2015 to outline his proposed amendment to the Justice No.2 Bill. The proposal is to amend Section 66(1) of the Police (Northern Ireland) Act 1998 which currently relates to assaults on members of the Police Service so that it specifically covers assaults and/or attacks on all members of the emergency services i.e. police, fire and ambulance service staff thus ensuring wider protection for all members of the emergency services working in the community in order that they are protected by the law to the same extent as a police officer.
72. During his oral evidence Lord Morrow stated that emergency service personnel are often placed in a high risk and vulnerable position in carrying out their duties and that they should be afforded the same protection as police officers. He outlined that, while it is a stand-alone offence in its own right to assault a police officer, if the assault is on ambulance or fire crews it is simply recorded as assault although it is accepted that, depending on the nature of the incident and the injuries sustained, it is likely to be a higher end offence and in the consideration of sentencing attract aggravated factors.
73. During the oral evidence session discussions took place regarding the potential for the proposed amendment to also cover a range of other staff including front line medical staff in accident and emergency departments, nursing staff and social workers undertaking home visits and voluntary organisations such as Lagan Search and Rescue.
74. Subsequently, when officials briefly outlined the position of the Department of Justice on Lord Morrow's proposed amendment when they attended to give evidence on the Bill on 3 December 2015, Mr Edwin Poots MLA raised the issue of on-the-spot fines in hospitals for less violent, low level behaviour such as verbal abuse or a push and asked what potential there was through amendments to the Justice No.2 Bill to have a fixed-penalty notice imposed on people at the time of the incident and administered in hospitals or by the emergency services to support people providing front-line services from being abused by individuals who take them for granted. He also asked what the opportunities there are for elevating the more serious incidents/aggravated circumstances.
75. Following the oral evidence sessions the Committee agreed to seek the written views of the Department of Justice and the Department of Health, Social Services and Public Safety on the proposed amendment by Lord Morrow and the proposal by Mr Poots and requested information from the Public Prosecution Service regarding the prosecution of offences against emergency services personnel.
76. In its response the Department of Justice highlighted that both Lord Morrow's proposed amendment and the proposal by Mr Poots engages interests beyond the Department of Justice and the issues may be complex. It advised that it had raised the matters with colleagues in the Department of Health, Social Services and Public Safety (DHSSPS) and intended to meet with them to discuss it in further detail once they had had an opportunity to consider the issues. While the Department appreciated the intention behind Lord Morrow's amendment it noted that assaults upon fire and rescue personnel are already covered by Article 57 of the Fire and Rescue Services (Northern Ireland) Order 2006 which provides that any person who assaults or obstructs a fire and rescue officer or a person assisting commits an offence and outlined that assaults upon other public servants, including paramedics, are capable of being prosecuted under existing legislation such as the Offences Against the Person Act 1861. Attacks on public servants or which damage emergency equipment also may already be treated as aggravating factors when sentencing. It highlighted that definitional problems may arise in terms of extending the proposed offence specifically to a range of other categories of profession.
77. In relation to legislating for on the spot fines for less violent behaviour on hospital premises the Department's initial view was that the use of fixed penalties in Northern Ireland is currently restricted to a range of low level, non-violent offences and fixed penalties are not appropriate in circumstances where the use or threat of violence is a factor.
78. The Public Prosecution Service response highlighted that legislative reform is a matter for the relevant Department and the Legislature and it had therefore focused on the practical implications of Lord Morrow's amendment. The PPS stated that the law around the existing offence in Section 66(1) of the Police (Northern Ireland) Act 1998 can be more complex than first appears and explained that the current provision includes the offences of resisting, obstructing or impeding a constable or a person assisting a constable as well as assaulting and that the constable must be acting in 'execution of his duty'. One issue around this existing offence has been what is meant by the execution of an officer's duty and if the provision was extended to other classes of victims it is likely that this same consideration could occur.
79. The PPS also outlined that where there is evidence of an assault on an emergency worker it can prosecute under existing assault offences without the need to prove the victim was acting in execution of their duty. Where the victim is someone who is serving the public, prosecutors are advised to consider this an aggravating factor and it would be a consideration when deciding whether, for example, an offender should be prosecuted in the Crown Court where greater sentencing is available to the Court. It was also aware that Judges will treat the fact that a victim is performing a public service as an aggravating factor when passing sentence in such cases.
80. The Minister of Health, Social Services and Public Safety also wrote to the Committee on both Lord Morrow's proposed amendment and the proposal by Mr Edwin Poots MLA. The Minister advised that previous consideration had been given to the introduction of legislation that would create a specific offence of assaulting or impeding a healthcare worker whilst that worker was carrying out their duties and which would provide that anyone found guilty would be liable to possible imprisonment or a fine. He indicated that those considerations had identified a number of practical problems with such legislation including the fact that it was already an offence to assault or abuse a health and social care worker; decisions on whether or how to prosecute any individual for a criminal offence are matters for the PPS; the individuals who would be protected by the legislation would have to be clearly identified and there would have to be decisions taken about who would be covered by the legislation; and clear decisions would be required on where, in terms of physical location, the protection afforded would have affect. He also stated that it was not apparent how an additional offence would increase the protection afforded to health staff and it was considered unlikely that an assailant would be deterred by a separate criminal offence related specifically to the assault or abuse of such staff. The Minister outlined that, in light of the practical difficulties with drafting specific legislation, a working group was set up to examine in further detail what measures could be undertaken to improve the effectiveness of existing legislation.
81. The Minister also indicated that any proposal to impose on the spot fines was unlikely to be welcomed by health staff who were likely to see that as possibly inflaming any situation rather than providing a solution and he outlined the Zero Tolerance policy that each Health and Social Care Trust has in place. In addition there is a joint Memorandum of Understanding between the PSNI, the PPS and the Department of Health aimed at promoting communication and establishing a framework for the exchange of information at local level and provide a clear statement on prosecution policy.
82. The Committee considered the proposed amendment by Lord Morrow MLA and the proposal by Mr Edwin Poots MLA at its meeting on 7 January 2016. While Members recognised and were sympathetic to the intention of both proposals they acknowledged that these are difficult and complicated matters, as illustrated by the responses received and in particular the correspondence from the Minister of Health, Social Services and Public Safety, that raise a number of complex issues that would require further detailed consideration.
Regulation of the Flying of Flags on Lampposts
83. At the invitation of the Committee Basil McCrea MLA attended the meeting on 17 November 2015 to outline his proposed amendments to the Justice No.2 Bill to regulate the flying of flags on lampposts. He subsequently provided a written paper outlining the background to and main elements of the proposed amendments which include:
- To introduce regulations regarding the flying of flags on lampposts. It is deliberately narrow in scope.
- The amendments will create a licensing authority to regulate such matters. The Licensing Authority will establish a protocol on the flying of flags, promote and facilitate mediation as a means of resolving disputes and liaise with the PSNI and communities to remove unlicensed flags.
- The Licensing Authority will be independent of the enforcement body such as the PSNI.
- The legislation will draw from the erection of election posters in planning regulations.
- Police powers should be clarified and strengthened to ensure that any illegal flags i.e. flags of prescribed organisations are removed promptly.
84. Following the oral evidence session the Committee agreed to seek the written views of the Department of Justice and the PSNI on the proposals.
85. In its response the Department of Justice stated that it does not believe that the Justice No.2 Bill is an appropriate legislative framework to bring the measures forward and highlighted that the flying of flags is a cross-departmental issue with OFMDFM, DSD, DRD, DOE, local councils and other statutory authorities all playing a part. In its view the most suitable way forward is through a Commission on Flags, Identity, Culture and Tradition to be established by March 2016 to focus on flags and emblems and broader issues of identity, culture and tradition as set out in the Stormont House Agreement and reaffirmed in the Fresh Start document.
86. The PSNI acknowledged the need for a resolution to the flags issue and is supportive of any legislation that could provide a solution. It also recognised the dissatisfaction with the current arrangements and believes that the solution does not lie primarily with policing but predominantly within the political arena and a wider societal approach. It supports the position that the best way of resolving such issues is by looking at the context within which conflict arises and transforming that context. The PSNI indicated that it was difficult to comment in depth without seeing detailed amendments and suggested that it would be appropriate to wait for the publication of research on this issue by Dr Paul Nolan and Professor Dominic Bryan which is due in early 2016.
87. The Committee considered the proposals by Basil McCrea MLA at its meeting on 7 January 2016. While Members recognised and acknowledged the aim of the proposals and what Mr McCrea was trying to achieve through his proposed amendments, Members were not convinced that they would have the desired outcome.
88. The Committee agreed that the best approach to this issue is for the Commission on Flags, Identity, Culture and Tradition, to be established by March 2016 as set out in the Stormont House Agreement and reaffirmed in the Fresh Start document, to consider the matter.
89. At its meeting on 14 January 2016 the Committee agreed its report on the Justice No.2 Bill and ordered that it should be published.
Links to Appendices
Minutes of Proceedings can be viewed here
Minutes of Evidence can be viewed here
Written Submissions can be viewed here
Memoranda and Correspondence from the Department of Justice on the Provisions of the Bill and its Proposed Amendments can be viewed here
Correspondence relating to the Proposed Amendments by the Department of Justice to Firearms Legislation can be viewed here
Correspondence relating to the Proposed Amendments by the Department of Agriculture and Rural Development to the Welfare of Animals Act (NI) 2011 can be viewed here
Correspondence relating to a Proposed Amendment by Lord Morrow MLA can be viewed here
Correspondence relating to the Proposed Amendment by Basil McCrea MLA can be viewed here
Correspondence relating to Possible Legislative Changes to Improve On-Line Protection for Children can be viewed here
Northern Ireland Assembly Research Papers can be viewed here
List of Witnesses can be viewed here