Report on the Justice Bill (NIA 37/11-15)

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Executive Summary

1. This report sets out the Committee for Justice’s consideration of the Justice Bill.

2. The Justice Bill consists of 92 Clauses and 6 Schedules and proposes to improve the operation of the justice system by improving services provided to victims and witnesses of crime, speeding up the justice system and improving the efficiency and effectiveness of key aspects of the system. In addition to the main clauses of the Bill, the Committee considered a range of proposed amendments brought forward by the Department primarily to address issues raised by the Attorney General during the pre-introductory stage and to put forward new policy proposals related to the main aims of the Bill.

3. The Committee also considered a number of new provisions unrelated to the policy areas currently covered in the Justice Bill which were brought to its attention by the Department of Justice, the Attorney General for Northern Ireland and Mr Jim Wells MLA.

4. The Committee requested evidence from interested organisations and individuals as well as the Department of Justice, the Department of Health, Social Services and Public Safety and the Attorney General for Northern Ireland as part of its deliberations on the Bill and the proposed amendments. Prior to introduction of the Bill the Committee had considered a wide range of policy proposals relating to the Bill and the views of the Committee had been reflected in a number of the provisions contained within the Bill. The provisions relating to victims and witnesses were also designed to reflect a number of recommendations in the Committee Report on the Inquiry into the Criminal Justice Services available to Victims and Witnesses of Crime.

5. Fifty two written submissions were received together with a significant number of responses from individuals, a number of petitions and almost 22,500 postcards in support of the amendment proposed by Mr Jim Wells MLA. The Committee held 18 oral evidence sessions and also explored the issues raised in written and oral evidence with Department of Justice officials both in writing and in oral briefings.

Delegated Powers in the Bill

6. The Committee sought advice from the 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. The Examiner was of the opinion that most of the delegated powers were appropriate but drew attention to provisions in Clause 79(2) in relation to the general duty to progress criminal proceedings and Clause 80 in relation to case management regulations. The Examiner was of the opinion that if these significant regulation making powers were to be workable in any proper and meaningful way, they would need to have a major input from those involved and there should at least be a built in statutory requirement to consult the Lord Chief Justice, the Director of Public Prosecutions for Northern Ireland, the General Council of the Bar of Northern Ireland and the Law Society of Northern Ireland. The Committee referred the Examiner’s analysis to the Department of Justice and it confirmed that, in response to the concerns raised, it would bring forward appropriate amendments.

Key Issues relating to the Clauses and Schedules in the Bill

7. The Committee agreed the clauses in the Bill as drafted or as drafted with proposed departmental amendments at its meeting on 11 March 2015. Some Members expressed reservations regarding Clause 78 which places a duty on solicitors to advise a client about early guilty pleas. The Committee agreed to oppose the inclusion of Clause 86 which provides for supplementary, incidental, consequential and transitional provisions.

Part 1 and Schedule 1 – Single Jurisdiction for County Courts and Magistrates’ Courts

8. Part 1 and Schedule 1 of the Bill covers a single jurisdiction in Northern Ireland for the county courts and magistrates’ courts, replacing statutory county court divisions and petty sessions districts with administrative court divisions. The Department also advised of its intention to bring forward a series of further consequential amendments for inclusion in Schedule 1 primarily to remove references to ‘petty sessions district’ and ‘county court division’ in existing legislation and provided the text of the amendments.

9. Organisations that commented on this part of the Bill either welcomed the move to a single jurisdiction or indicated that they did not object in principle to the proposals. They did however raise some concerns regarding the possible impact on court users and wanted to see further information on the operational details of the proposals including the guiding principles for the transfer of business which the Lord Chief Justice has responsibility for developing and implementing.

10. The Committee recognised that a single jurisdiction for the county courts and magistrates’ courts will provide flexibility but it believes that a robust set of directions/guidelines is required to ensure that the assignment of business takes account of the needs of witnesses, victims and defendants to ensure a fair process and the provision of access to justice. The Committee has written to the Office of the Lord Chief Justice requesting information on the nature of the consultation that will be carried out on the Directions and who will be consulted.

11. The Committee agreed that it was content with Clauses 1 to 6 and Schedule 1 subject to the Department’s proposed amendments.

Part 2 and Schedules 2 and 3 – Committal for Trial

12. Part 2 and Schedules 2 and 3 of the Bill reforms the committal process to abolish the use of preliminary investigations and the use of oral evidence at preliminary inquiries; provide for the direct committal to the Crown Court of certain indictable cases where the defendant intends to plead guilty at arraignment; and provide for the direct committal to the Crown Court of certain specified offences.

13. There was a divergence of views in the evidence received on these proposals with the Public Prosecution Service and Victim Support NI supporting the changes but ultimately wanting to see committal proceedings abolished altogether and the Law Society believing the proposal to remove the use of Preliminary Investigations and the use of oral evidence at Preliminary Inquiries is flawed.

14. The Committee is fully aware of the concerns raised and the experiences of victims and witnesses in relation to having to give evidence twice from the Inquiry into the Criminal Justice Services available to Victims and Witnesses that it carried out in 2012. It also appreciates the length of time it takes for many cases to be completed and the need to take further measures to address avoidable delay in the system and noted the figures provided that indicated that very few defendants who were the subject of committal proceedings were not committed for trial.

15. While one Member indicated that they had some concerns regarding these provisions the Committee agreed to support Clauses 7 to 16 and Schedules 2 and 3 and the amendment proposed by the Department to allow for the direct committal of any co-defendants who are charged with an offence which is not a ‘specified offence’ so that, in the interests of justice, all defendants can be tried at the same time.

Part 3 – Prosecutorial Fines

16. Part 3 of the Bill creates new powers to enable public prosecutors to offer lower level offenders a financial penalty, up to a maximum of £200 (the equivalent of a level 1 court fine), as an alternative to prosecution of the case at court.

17. In the evidence received on this part of the Bill observations were made regarding the wider issue of fine collection and enforcement with comments relating specifically to prosecutorial fines focusing on how they will operate in practice.

18. The Committee agreed that it was content with Clauses 17 to 27 of the Bill but indicated that it will wish to see the draft guidance to be developed by the PPS to ensure that it adequately addresses the circumstances and frequency with which prosecutorial fines can be considered and offered to an offender. The Committee will also undertake the Committee Stage of the Fines and Enforcement Bill in due course which will provide an opportunity to consider and address the wider issues associated with the payment and enforcement of fines.

Part 4: Victims and Witnesses

19. Part 4 of the Bill improves services and facilities for victims and witnesses by providing for the establishment of statutory Victim and Witness Charters and providing a statutory entitlement to be afforded the opportunity to make a Victim Personal Statement.

20. Following the commencement of Committee Stage of the Bill the Department advised of its intention to bring forward an amendment to Part 4 of the Bill to introduce a new Clause 35A and a new Schedule 3A to create information sharing powers to provide for a more effective mechanism through which victims can automatically be provided with timely information about the services available to them in the form of Victim Support Services; witness services at court; and access to post-conviction information release schemes. The Department subsequently advised that it intended to bring forward a further amendment, to Clause 33, to allow a victim or a bereaved family member to include, in a Victim Statement, the impact a crime has had on other family members.

21. There was widespread support amongst respondents for the establishment of Statutory Victim and Witness Charters with organisations highlighting that it would ensure that victims and witnesses receive the appropriate support and services during the various stages of the criminal justice process. The placing of Victim Personal Statements on a statutory footing thus providing an opportunity for a victim to explain the impact of an offence or alleged offence was also broadly welcomed as was the proposed amendment to create information sharing powers to provide for a more effective mechanism through which victims can automatically be provided with timely information.

22. The provisions relating to victims and witnesses are a direct result of the findings and recommendations of the Report on the Committee’s Inquiry into the Criminal Justice Services Available to Victims and Witnesses of Crime which was published in June 2012. The evidence which the Committee received during the Inquiry clearly demonstrated that engaging with the criminal justice system as a victim and/or witness or as a bereaved family is a daunting experience which can entail encounters with a number of criminal justice agencies and voluntary sector organisations from the time the crime is reported, through the police investigation, prosecution decision making process, court process, sentencing and beyond.

23. The evidence also illustrated the significant difficulties victims and witnesses face with the criminal justice system and the criminal justice agencies and their experience of the process is often frustrating, demoralising and on occasions devastating. The co-operation of victims and witnesses in the criminal justice process is vital to achieving convictions and ensuring that justice is done and it was the Committee’s strong belief that much more could and needed to be done to redress the balance and ensure that an effective and appropriate service is provided for them. As part of the Inquiry it therefore recommended that a Victim and Witness Charter providing statutory entitlements for victims and witnesses in terms of information provision and treatment should be introduced in the next suitable Justice Bill. The Committee also recommended that a formal system for the completion and use of Victim Impact Statements should be introduced as a matter of urgency and that an “opt-out” system on being approached by Victim Support NI and the Probation Board should be developed to replace the current “opt-in” system.

24. The Committee therefore welcomed and agreed that it was content with Clauses 28 to 35 subject to the amendments proposed by the Department.

Part 5 and Schedule 4 - Criminal Records

25. Part 5 and Schedule 4 of the Bill modernises arrangements for the disclosure of criminal records by allowing for: electronic applications; portable disclosures; the issuing of single disclosures; an independent appeals mechanism; and a range of other improvements.

26. The Department also indicated its intention to bring forward a number of amendments to Part 5 of the Bill mainly at the suggestion of the Attorney General for Northern Ireland.

27. There was broad support amongst stakeholders for the measures being taken to modernise and streamline the disclosure of information and for the proposed amendment to create a review mechanism for the scheme to filter certain old and minor convictions and other disposals such as cautions from Standard and Enhanced criminal record certificates. Some children’s organisations however had concerns regarding the impact of disclosure of criminal records on young people and would like to see the removal from criminal records of old and minor convictions relating to offences committed under the age of 18.

28. The Committee agreed that it is content with Clauses 36 to 43 and Schedule 4 of the Bill subject to the amendments proposed by the Department.

Part 6 – Live Links

29. Part 6 expands provision for the use of live video link (‘live link’) facilities in courts to include committal proceedings, certain hearings at weekends and public holidays and proceedings relating to failure to comply with certain order or licence conditions. Live links will also be available for witnesses before magistrates’ courts from outside the United Kingdom and for patients detained in hospital under mental health legislation, and they will be the norm for evidence given by certain expert witnesses. The provisions do not change a patient’s or defendant’s entitlement to be present at a hearing nor do they alter the right to consult privately with their legal representative before, during or after a live link. As a package they are designed to increase the use of live links in courts, prisons and hospital psychiatric units providing a cost effective and secure means for patients/defendants to participate in hearings.

30. The Department also advised the Committee that it would bring forward an amendment to Clause 46 so that the same safeguard as provided for in Clauses 44 and 45 which places a responsibility on the court to adjourn proceedings where it appears to it that the accused is not able to see and hear the court and be seen and heard by it and this cannot be immediately corrected applies.

31. The comments received in relation to Part 6 of the Bill largely focused on wider issues relating to the use of live links generally, particularly with regard to children and young people, and the impact on their ability to understand and participate in proceedings and give informed consent and the ability of a defendant to access legal representation and communicate with their legal representative.

32. Having considered the issues raised in the evidence, the benefits of extending the use of live links and the Department of Justice’s assurances regarding the various legal requirements set out in statutory frameworks for the use of live links which operate under the authority and supervision of the courts and judiciary, the Committee agreed that it was content with Clauses 44 to 49 and the proposed amendment to Clause 46 to ensure a consistency of approach with respect to safeguarding arrangements.

Part 7 - Violent Offences Prevention Orders

33. Part 7 of the Bill creates a new tool – the Violent Offences Prevention Order (VOPO) – to assist relevant criminal justice agencies in the management of risk from violent offending. The VOPO, as a preventative measure, will benefit offenders in terms of helping to prevent the committal of further offences and will also benefit those affected by crime by reducing the risk of, and the fear of crime, which could lead to a potential decrease in the number of victims of crime and potential victims of crime.

34. The Department also outlined its intention to bring forward a number of amendments to the clauses relating to the verification of identity, retention of fingerprints and photographs and power of search of third party premises to reflect improvements suggested by the Attorney General and concerns he raised about ECHR compliance.

35. A number of issues were raised in the evidence on Part 7 including whether VOPOs should apply to offenders under the age of 18, the use of VOPOs in relation to domestic violence offences and whether there was also a need for specific Domestic Violence Protection Orders.

36. Having considered the issues raised in the evidence and the further information and clarification provided by the Department of Justice, the Committee agreed that it was content with Clauses 50 to 71 relating to VOPOs subject to the Department’s proposed amendments.

Part 8 - Miscellaneous

37. Part 8 contains miscellaneous provisions covering Jury Service; Early Guilty Pleas; Avoiding Delay in Criminal Proceedings; Public Prosecutor’s Summons; Defence access to premises; Court Security Officers and Youth Justice.

Jury Service – Clauses 72 to 76

38. Clauses 72 to 76 provide for the abolition of the upper age limit for jury service (currently age 70), to be replaced with an automatic right of excusal for those over 70 and an increase of the current age for automatic excusal from 65 to 70 and various tidy-up provisions.

39. Having sought further information regarding who is currently exempt from jury service the Committee agreed that it was content with Clauses 72 to 76.

Early Guilty Pleas – Clauses 77 and 78

40. Clauses 77 and 78 provide for statutory provisions to encourage the use of earlier guilty pleas. The provisions will provide legislative support to a (non-legislative) scheme being developed to provide a structured early guilty plea scheme in the magistrates’ courts and the Crown Court. The provisions will: (i) require a sentencing court to state the sentence that would have been imposed if a guilty plea had been entered at the earliest reasonable opportunity and; (ii) place a duty on a defence solicitor to advise a client about the benefits of an early guilty plea.

41. The Department also advised the Committee that, on the advice of the Attorney General for Northern Ireland, it intended to bring forward an amendment to remove a regulatory making power in sub-section 3 of Clause 78 which has been identified as being of no practical benefit.

42. The main issues raised in relation to Clauses 77 and 78 related to the purpose of the provisions and the likely impact. Several respondents also suggested that the proposed duty on solicitors should also apply to advocates.

43. Several Members outlined concerns and reservations regarding the duty to be placed on solicitors by Clause 78. Views were expressed that it was unnecessary as in practice a solicitor would inform a client of the position anyway, it could potentially create problems and conflicts between solicitors and clients and it would not deliver efficiencies. Other Members were content with the proposed statutory duty. The Committee agreed that it was content with Clause 77 and Clause 78 subject to the amendment proposed by the Department.

Avoiding Delay in Criminal Proceedings - Clauses 79 and 80

44. Clauses 79 and 80 introduce a statutory framework for the management of cases. Through regulation, the Department of Justice will be able to impose duties on the prosecution, defence, and the court, which set out what must be completed prior to the commencement of court stages. The regulations will also allow the Department to impose a general duty to reach a just outcome as swiftly as possible on anyone exercising a function in relation to criminal proceedings .

45. The Assembly Examiner of Statutory Rules drew the attention of the Committee to the regulation-making powers in Clauses 79(2) in relation to the general duty to progress criminal proceedings and Clause 80 – the case management regulations and suggested that if the Regulations are to be workable in any proper and meaningful way they would need to have a major input from those involved and there should therefore at least be a built-in statutory requirement to consult the Lord Chief Justice, the Director of Public Prosecutions, the Bar Council and the Law Society.

46. The Committee referred the Examiner’s analysis to the Department and it confirmed that, in response to the concerns raised by the Examiner and the Attorney General it would bring forward appropriate amendments to Clauses 79 and 80.

47. All the respondents to this part of the Bill recognised the serious problem of delay in criminal proceedings and the negative impact this has on victims, witnesses and defendants, especially children and young people. Support was therefore expressed for measures to address avoidable delay including statutory case management.

48. One of the issues consistently raised during the Committee’s Inquiry into the Criminal Justice Services available to Victims of Crime in Northern Ireland was the adverse impact the length of time it takes for cases to go through the criminal justice system has on victims and witnesses, many of whom are unable to move on while they wait for the process to be completed. Whilst recognising the complexity of the issue the Committee noted that avoidable delay in the criminal justice system was not new and in its view had been on-going for much too long. Given the detrimental effect it has on victims and witnesses, as clearly demonstrated in the evidence received in the Inquiry, the Committee believed that substantive action was required. While delay is a common complaint with regard to the entire criminal justice process one of the key frustrations for victims and witnesses is the length of time court cases take and the number of postponements/adjournments that frequently occur.

49. The Committee was of the view that a statutory case management scheme would be beneficial and have an overall positive effect in addressing delay and ultimately the experiences of victims and witnesses and therefore recommended that this should be taken forward in the next available justice Bill. The Committee therefore welcomed and supported Clauses 79 and 80 subject to the Department’s proposed amendments.

Public Prosecutor’s Summons - Clause 81

50. Clause 81 will allow a Public Prosecution Service prosecutor to issue a summons to a defendant without first having to get a Lay Magistrate to sign the summons, thereby streamlining procedures and helping to speed up the process in summons cases by reducing the time taken between the decision to prosecute and first appearance in court.

51. The Committee agreed that it was content with Clause 81 as drafted.

Defence Access to Premises - Clause 82

52. Clause 82 introduces a power to fill a gap which currently exists, so that, in cases where access to premises is not agreed, the defendant will have recourse to the court in order to properly prepare his defence (or appeal).

53. The Department advised the Committee of its intention to bring forward an amendment to improve Clause 82, at the suggestion of the Attorney General, to adjust the threshold for an order allowing access to property to ensure proportionality and greater clarity in the use of the power to balance the rights of the occupier of the premises.

54. The Committee agreed that it was content with Clause 82 subject to the Department’s proposed amendment.

Court Security Officers – Clause 83

55. Clause 83 closes a lacuna to enhance the security of court venues and court users by specifying that a Court Security Officer’s powers to search, exclude, remove or restrain an individual is extended to include the grounds on which court buildings sit.

56. The Committee agreed that it was content with Clause 83 as drafted.

Youth Justice System – Clauses 84 and 85

57. Clause 84 amends the Aims of the Youth Justice System in Northern Ireland, articulated in Section 53 of the Justice (NI) Act 2002, to reflect the best interests principle as set out in Article 3 of the UN Convention on the Rights of the Child (UNCRC). Clause 85 makes a technical adjustment to delete transitional arrangements relating to detention orders in sub-section 10.5 of the Criminal Justice Act (NI) 2013 that are no longer needed and which it was feared may not be ECHR-compliant.

58. Those respondents who commented on Clause 84 welcomed the fact that it amends section 53 of the 2002 Act to fully reflect the ‘best interests’ principle as contained in Article 3(1) of the UNCRC and recommended in the Youth Justice Review.

59. The Committee also welcomed the amendment of the existing aims of the youth justice system to include the ‘best interests’ principle and agreed that it was content with Clauses 84 and 85.

Part 9 – Supplementary Provisions

60. Part 9 of the Justice Bill contains the supplementary provisions including powers to make regulations.

61. During the oral evidence session with departmental officials on 18 February 2015 the Committee sought clarification of the exact purpose and effect of Clause 86 and the extent of the powers that it provides to the Department. The officials stated that it is a general construction that is used in lots of legislation to cover various eventualities, particularly in a Bill of this size where there is the potential for an issue to arise in a number of areas that might need some rectification and is intended to address any minor points that might arise rather than substantive policy.

62. When pressed by the Committee regarding what limitations there is to the powers provided by the clause and whether it enabled the Department not to enact parts of the legislation passed by the Assembly the officials undertook to provide further clarification in writing.

63. The Department subsequently indicated that a power to make supplementary, incidental, consequential and transitional provision is frequently included in a Bill which deals with complex changes in law in case difficulties which have not been identified in the legislative process may arise. The power to make supplementary or consequential provision is intended to pick up missed consequentials or issues which have not been anticipated and the power to make transitory or transitional provisions may be needed because of the sequence in which clauses are commenced or because commencement of particular provisions is unexpectedly delayed. The Department described Clause 86 as “something of a safety blanket” in case the operation of the legislative changes throw up some unexpected difficulty or to address necessary consequential changes that have inadvertently been overlooked during the drafting of the Bill. It accepted that the power provided is widely drawn to take account of the fact that the precise circumstances in which it may be called upon cannot be determined but stated that the purposes for which the power can be used are reasonably exact and drew attention to the fact that Clause 86(1) provides that the relevant orders must be used for the purposes of the Act or to make provision in consequence of, or for giving full effect to, the Act and Subsection (2) must be read in that light. It also indicated that Clause 87(6)(b) provides that any order made under section 86(1) which contains a provision which amends or repeals a provision of an Act of Parliament or Northern Ireland legislation will be subject to the draft affirmative procedure and cannot be made without Assembly approval. All orders made under Clause 86(1) will also be subject to the usual subordinate legislation procedures.

64. The Committee considered the additional information provided by the Department regarding the purpose of and powers provided by Clause 86. The Committee was of the view that, in essence, Clause 86 provides for the Minister of Justice to amend, appeal or revoke primary legislation agreed and passed by the Assembly by way of secondary legislation albeit some orders would be subject to the affirmative resolution procedure. While noting that this type of clause is a common occurrence in Bills the Committee was not content with the wide ranging powers it provides.

65. The Committee expressed the view that powers should be provided for an exact purpose rather than be broad in nature and, even though the affirmative resolution procedure would apply to some orders, as a consequence of Clause 86 parts of the Bill passed by the Assembly could be changed or potentially reversed by the Department without the level of scrutiny the Bill itself has received. The Committee therefore agreed that it will oppose the inclusion of Clause 86 in the Bill. The Committee believes that its intention to remove this type of clause will send a message to Departments to ensure that future legislation is well thought through beforehand rather than relying on extensive powers to fix things at a later stage. The Committee also noted that the Department can bring forward further primary legislation, if necessary, to deal with any unexpected consequences.

Consideration of other proposed provisions for inclusion in the Bill

66. Seven proposals for new provisions unrelated to the policy areas currently covered in the Justice Bill were brought to the attention of the Committee during the Committee Stage of the Bill. Four were proposed by the Department of Justice, two were proposed by the Attorney General for Northern Ireland and one was proposed by Mr Jim Wells MLA.

Sexual offences against children

67. In January 2015 the Minister of Justice sought the views of the Committee on his intention to provide for a new offence of communicating with a child for sexual purposes and make a change to the existing offence of meeting a child following sexual grooming by way of amendments to the Justice Bill. The new offence of communicating with a child for sexual purposes arises from a national NSPCC lobby campaign to close what is considered a gap in the law relating to ‘sexting’. There is already law covering this behaviour in Scotland and the new offence will be introduced in England and Wales by the Serious Crime Bill. The Department subsequently provided the text of the proposed amendment which will include the new offence in the Sexual Offences (NI) Order 2008.

68. The Committee discussed the proposed amendment at its meeting on 14 January 2015 and agreed that it was very important to provide the same level of protection to children in Northern Ireland. The Committee therefore agreed to support the proposed amendment to the Justice Bill noting that it will allow the provision to commence in Northern Ireland within a few months of England and Wales.

69. The amendment to the existing offence in the Sexual Offences (NI) Order 2008 of meeting a child following sexual grooming would make a small, but significant, change to reduce the evidence threshold for the offence to be engaged. Currently an adult must have communicated with a child on two occasions before meeting them, or travelling to meet them, before the offence is committed. The amendment would reduce that requirement from two occasions to one allowing the police to take action after only one contact and reducing the police burden of the collection of communications evidence even where there has been multiple contacts.

70. The Committee noted that a report by Barnardos showed how quickly contact offending can occur following just one communication or meeting and that, if amended as proposed, the grooming offence could play a much more important role in preventing such contact offending ever taking place. The Committee therefore welcomed the proposed amendment which will improve protection for children in Northern Ireland and subsequently noted the text of the amendment provided by the Department of Justice at its meeting on 18 February 2015.

New offence of causing or allowing serious physical harm to a child or vulnerable adult

71. Existing legislation in place in England, Wales and Northern Ireland under section 5 of the Domestic Violence, Crime and Victims Act (2004) allows for the joint conviction of members of a household who have frequent contact with a child or vulnerable adult, where they caused the death of that child or vulnerable adult, or:

• They were aware or ought to have been aware that the victim was at significant risk of serious physical harm from a member of the household.
• They failed to take such steps as they could reasonably have been expected to take to protect them from the risk.
• The person subsequently died from the unlawful act of a member of the household in circumstances that the defendant foresaw or ought to have foreseen.

72. The Domestic Violence, and Crime and Victims (Amendment) Act 2012 extended the above provision to enable the joint conviction of members of a household who cause or allow a child or vulnerable adult to suffer serious physical harm in the circumstances outlined above in England and Wales but not in Northern Ireland.

73. The Minister of Justice gave a commitment that he would consider extending this provision to Northern Ireland and the Department undertook a targeted consultation in September 2014. The consultation sought views on extending existing legislation and suggested sentence for the offence of causing or allowing serious physical harm to a child or vulnerable adult.

74. The offence would relate to circumstances whereby the injuries to the child or vulnerable adult must have been sustained at the hands of one of a limited number of members of the household, but there is insufficient evidence to point to the particular person responsible.

75. The Department provided the results of the consultation, which were supportive of the proposed amendment, to the Committee in January 2015.

76. The Committee, having considered the information provided and noting that it will provide additional protections to children and vulnerable adults, agreed that it was content with the Department’s proposal to include provision in the Justice Bill to extend the scope of the current offence of causing or allowing the death of a child or vulnerable adult under section 5 of the Domestic Violence, Crime and Victims Act 2004 to also include cases of “causing or allowing a child or vulnerable adult to suffer serious physical harm.” The Committee subsequently noted the text of the proposed provision provided by the Department.

Regulation of the Salary of the Lands Tribunal Members

77. The Department of Justice advised the Committee of a proposal for a new provision to the Justice Bill to deliver a change to the affirmative resolution procedure for the annual determination of Lands Tribunal members’ salaries.

78. The Lands Tribunal and Compensation Act (Northern Ireland) 1964 (“the 1964 Act”) provides that the Department may, by order, determine the salary of members of the Lands Tribunal. Such an order is subject to the affirmative resolution procedure. The Lands Tribunal consists of a President (who does not receive a salary under the 1964 Act as this post is held by a Lord Justice of Appeal) and one member. Therefore, only one individual is subject to this procedure. No other judicial salary is subject to Assembly approval.

79. During an Assembly debate in September 2013 on the Lands Tribunal (Salaries) Order (Northern Ireland) 2013, it was highlighted by the Chairman of the Committee for Justice that the use of the affirmative procedure for a 1% pay increase, which is set by the Review Body on Senior Salaries for one person appeared odd and was something the Department may wish to look at, particularly when legal aid statutory rules that relate to millions of pounds and affect the entire legal profession are largely subject to the negative resolution procedure. The Minister agreed to consider changing the procedure when a suitable legislative opportunity was identified.

80. The Committee welcomed the proposed new provision, noting that it would align the procedure for determining Lands Tribunal members’ salaries with the procedure used to determine other judicial salaries and noted the text of the amendment at the meeting on 18 February 2015.

Policy Amendments relating to the Police and Criminal Evidence (NI) Order 1989 – Fingerprint and DNA Retention

81. The Department advised the Committee that it intended to bring forward a number of new policy amendments to the biometric provisions in the Police and Criminal Evidence (NI) Order 1989 (PACE) as part of the Justice Bill.

82. Departmental officials attended the meeting on 18 February 2015 to outline the purpose of the proposed amendments and answer Members’ questions. The officials indicated that four of the five amendments are to address shortcomings identified through early experience of operating the corresponding provisions in England and Wales including:

• Amending PACE to allow police to retake fingerprints and a DNA sample in cases where an investigation has been discontinued and where the material originally taken has been destroyed in accordance with the new retention framework but the same investigation later recommences, perhaps because new evidence has emerged.
• Replacing existing article 63N of PACE which has been found not to achieve the intended policy outcome to make it clear that DNA and fingerprints taken from an individual may be retained on the basis of a conviction, irrespective of whether that conviction is linked to the offence for which the material was first obtained.
• Amending Article 63R to disapply the normal destruction rules for samples in cases where the sample is or may become disclosable under the 1996 Criminal Procedure and Investigations Act but makes clear that the material cannot be used for any purpose other than in proceedings for the offence for which the sample was taken and must be destroyed once the Act no longer applies.
• An amendment to correct a gap identified in new Article 63G of PACE to provide that a conviction in Great Britain for a recordable offence will be reckonable for the purposes of determining the period of retention of material taken in Northern Ireland.

83. The other amendment will add a new article to PACE to reflect the introduction in Northern Ireland of prosecutorial fines by Part 3 of the Justice Bill.

84. The Committee questioned officials further on the proposal to provide for the retention of fingerprints or DNA profiles in relation to persons given a prosecutorial fine as such fines should be for minor, lower-level offences, whether DNA retention forms part of a person’s records that could be accessed through an AccessNI records search, the number of DNA and fingerprint records that are retained and how this compares to other jurisdictions, and the current retention framework that is in place following which it agreed that it was content with the inclusion of the amendments in the Bill.

A proposal by the Attorney General for Northern Ireland for an amendment to the Coroners Act (Northern Ireland) 1959

85. During consideration of the Legal Aid and Coroners’ Courts Bill, the Committee considered a proposed amendment to the Coroners Act (NI) 1959 by the Attorney General. The Committee was of the view that the proposal raised a number of issues which required further scrutiny and consideration which could not be undertaken within the timescale for completion of the Committee Stage of the Legal Aid and Coroners’ Courts Bill. The Committee agreed that if an alternative Bill could be found within which the amendment could be taken forward and considered properly in the foreseeable future the Committee would support that approach. The Justice Bill allowed the Committee to consider in more detail the Attorney General’s proposal.

86. At its meeting on 2 July 2014, the Committee agreed to seek further written views on the Attorney General’s proposed amendment and subsequently took oral evidence from the Health and Social Care Board, the Department of Health, Social Services and Public Safety and the Attorney General.

87.To assist its consideration of the proposal the Committee also commissioned a research paper on the position in England and Wales, Scotland and the Republic of Ireland and also sought advice on including a review mechanism/sunset clause in the amendment to enable it to be reviewed on a regular basis such as every 12 months.

88. During the discussions on the Attorney General’s proposed amendment some Members indicated that they were inclined to support it while others indicated that they had some concerns. Key issues discussed included the need to ensure information is provided when it should be and whether the proposed amendment would assist/support this and provide a “second pair of eyes”, the process of change and new initiatives the Health Service is implementing, the fact that SAIs were introduced as a learning exercise and staff are encouraged to participate in them on that basis, the need for openness and transparency and whether the amendment would assist this or create a climate of fear/reluctance thus diminishing it and whether it would assist people in difficult circumstances to establish the truth about the death of a loved one.

89. A proposal to take forward the proposed amendment by the Attorney General to the Coroners Act (NI) 1959 with the addition of provision for a sunset clause/review mechanism as a Committee amendment was put at the meeting on 11 March 2015 but fell as it did not have the support of a majority of the Members present.

A proposal by the Attorney General to provide for Rights of Audience for Lawyers Working in his Office

90. The Attorney General asked the Committee to consider making legislative provision to confer rights of audience equivalent to those of barristers in private practice on any barrister or solicitor working in his office and designated by him. The Attorney General’s view was that the proposal should apply, at the outset, to the small number of lawyers working in his office and under his direct supervision.

91. The Department of Justice advised the Committee that, whilst acknowledging the potential benefits of making such legislative provision, initial soundings indicated there may be implications for the wider legal services landscape and its regulation. The Minister of Justice recognised the potential benefits of suitably skilled lawyers in the Attorney General’s office (and those in other offices) having the right to appear in the higher courts. However, he considered that this was achievable under the mechanisms already legislated for in the Justice (Northern Ireland) Act 2011.

92. When the Director of Public Prosecutions attended to give oral evidence on the Justice Bill he referred to the Attorney General’s request and indicated that similar provision would significantly benefit the Public Prosecution Service as well. He requested that the Committee also consider giving the same rights of audience provision for the lawyers working in the PPS higher court advocacy unit.

93. The Committee also wrote to the Departmental Solicitor’s Office to request its view on the level of staff the DSO would propose to have rights of audience for. In response, the Departmental Solicitor indicated that, if an exemption is granted to lawyers in the Attorney General’s Office he would want the same right extended, initially to the 12 staff on his judicial review team and in due course for the remaining 12 lawyers in the litigation division.

94. The Committee considered the Attorney General’s proposal for legislative provision for rights of audience for lawyers in his office and similar requests by the PPS and the DSO at the meeting on 25 February 2015 and agreed to request further information from the Department of Justice regarding whether it could be adapted to provide for a review mechanism after a period of time to assess the impact and a mechanism to provide rights to other organisations if considered appropriate. The Department responded indicating that it remained of the view that bespoke arrangements are unnecessary to achieve the desired outcome and would fragment the accreditation process, detracting from what should be the pre-eminent role of the Bar and Law Society, potentially to the detriment of consistency of training and standards of representation. If the proposed amendment was made the Department believed the operation of those arrangements would best be monitored on an administrative basis with further legislative provision taken as necessary.

95. When the Committee discussed the Attorney General’s proposal, some Members indicated that they were minded to support it on the grounds that it is a modest change that would provide rights of audience for a small, discrete number of lawyers in his office working in a fairly restrictive area of law, primarily judicial review, which would lead to a more cost-effective system. Other Members had concerns however regarding the implications in relation to creating a precedent or widening it to include rights of audience for lawyers in other offices as it could diminish the rights of counsel to act independently within the courts which the Bar Council would have serious objections to. As there was no consensus the Committee agreed that it would not take forward the proposal.

Proposed Amendment by Mr Jim Wells MLA

96. At its meeting on 2 July 2014, Mr Jim Wells MLA (then a Member of the Committee for Justice) advised the Committee that he intended to bring forward an amendment to the Justice Bill to restrict lawful abortions to National Health Service premises except in cases of urgency when access to National Health Service premises is not possible and where no fee is paid. He provided the wording of the amendment which also included an additional option to the existing legislation to provide for a period of 10 years imprisonment and a fine on conviction on indictment to be imposed and proposed that the Committee should seek views on his amendment when seeking evidence on the Bill.

97. The Committee discussed whether it was appropriate to seek views on individual Members’ proposed amendments when seeking views on the Bill and a range of views were expressed. At the meeting on 2 July 2014, the Committee agreed to seek views on the amendment proposed by Mr Jim Wells MLA when seeking evidence on the Justice Bill.

98. Following the Committee’s call for written evidence on the Bill, a total of 28 written responses on the proposed amendment were received from organisations. Copies of the responses are included at Appendix 3. A total of 20 were in favour of the amendment, 7 were not in favour and 1 made no comment on whether it was in favour. In addition to the written responses from organisations, the Committee also received a number of responses from individuals, a number of petitions and almost 22,500 postcards in favour of the amendment.

99. The Committee subsequently agreed to take oral evidence from Amnesty International, CARE NI, Christian Medical Fellowship, Evangelical Alliance, NI Human Rights Commission, Precious Life, the Regulation and Quality Improvement Authority (RQIA), Society for the Protection of Unborn Children and Women’s Network. The Minutes of Evidence are included at Appendix 2.

100. The views expressed in the written and oral evidence received on the proposed amendment by Mr Jim Wells MLA were divided with organisations and individuals either strongly supporting it or indicating strong opposition to it.

101. Those who strongly supported the proposed amendment included CARE, Christian Medical Fellowship, Evangelical Alliance, Precious Life, Society for the Protection of Unborn Children and Women’s Network. In their written and oral evidence they indicated:

• There are no credible or compelling needs for private companies to provide abortion services in Northern Ireland.
• There are issues of transparency where private clinics are concerned including a failure to provide information on the number of abortions undertaken on their premises.
• There is no evidence that private companies or charities are needed to meet existing levels of demand.
• Life begins at the moment of conception.
• Promotion of a more liberal approach on abortion is at odds with the law, culture and values of the people of Northern Ireland.
• There are concerns regarding whether the law, as it stands, is being upheld/adhered to as it is difficult to monitor lawful terminations outside of NHS premises due to a lack of information.
• There is a responsibility to protect the life of the mother and the unborn child and this responsibility is best held with the Health and Social Care Trusts and not those actively campaigning to change the law for financial gain.
• The European Court of Human Rights gives a broad margin of appreciation to States as there is no consensus on abortion across Europe.

102. Those who opposed the proposed amendment and/or raised issues concerning it included Amnesty International, the NI Human Rights Commission and the RQIA. In their written and oral evidence they indicated:

• The proposed amendment would constitute a further significant restriction on the right to privacy in Northern Ireland and adoption of it would be contrary to ECHR, Article 8, Article 17 and ICCPR.
• The amendment would further hinder the State’s ability to fulfil its positive obligation to “create a procedural framework enabling a pregnant woman to effectively exercise her right of access to a lawful abortion”.
• It is not clear how the word ‘urgent’ is interpreted and the circumstances by which someone will be able to terminate a pregnancy outside of NHS premises in an ‘urgent’ situation.
• People should be allowed to decide whether they use a private provider or not and there are no other circumstances where people are forced to use only a public health facility.
• The amendment may be so broad as to include certain forms of contraception, including the morning after pill, and further clarification is required as, if the amendment is passed, there could be legal challenges to the use of the morning after pill.
• There are a range of possible unintended consequences of the amendment that require further consideration.
• There are issues relating to enforcement of criminal law regulations and any potential role for RQIA as it does not sit within its present regulatory framework.
• Access to safe abortion is recognised as a human right under the international human rights framework and a total ban on abortion and other restrictions that do not, at a minimum, ensure access to abortion in cases where a woman’s life or physical or mental health is at risk, in cases of rape, sexual assault or incest and in cases of severe foetal impairment violate those rights.

103. At its meeting on 4 March 2015, the Committee agreed to include the evidence in relation to Mr Jim Wells’ amendment in the Committee’s Report on the Justice Bill.

104. The Committee discussed the proposed amendment at several meetings and opinion was divided with some Members indicating that they supported the amendment and others indicating that they were opposed to it.

105. A proposal to take forward the proposed amendment by Mr Jim Wells MLA as a Committee amendment was put at the meeting on 11 March 2015 and agreed by a majority of Members present.

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