Date: 13 December 2012
Reference: NIA 10/11-15
Mandate Number: 2011/15 Third Report
1. This report sets out the Committee for Justice’s consideration of the Criminal Justice Bill.
2. The Bill consists of 10 clauses and 4 schedules and proposes to change the law on sexoffender notification provisions; introduce new offences aimed at preventing and combatinghuman trafficking and protecting its victims; and establish a new legislative framework forfingerprints and DNA samples and profiles.
3. The Committee requested evidence from interested organisations and individuals as well asfrom the Department of Justice as part of its deliberations on the Bill. Written submissionswere received from 27 individuals and organisations, 21 of which provided substantivecommentary on the three policy areas covered in the Bill, and the Committee took oralevidence from 8 organisations.
4. The Committee also consulted the Attorney General for Northern Ireland on a proposedamendment the Committee was considering introducing at Consideration Stage to abolish theoffence of Scandalising the Court.
Delegated Powers in the Bill
5. The Committee sought advice from the Examiner of Statutory Rules in relation to the rangeof powers within the Bill to make subordinate legislation. The Examiner considered that mostof the delegated powers were appropriate but drew the attention of the Committee to theprovisions in Article 63D(5) of PACE as inserted by Schedule 2. The Examiner was of theopinion that the prescribed circumstances relating to the application for the Commissioner’sconsent to retain fingerprints and DNA profiles should be set out on the face of the Billwith power to amend by way of subordinate legislation subject to affirmative resolution ifnecessary, rather than leaving it to subordinate legislation subject to negative resolution ascurrently proposed. The Department subsequently provided an amendment to the Committeeaddressing this issue.
Key Issues relating to the Clauses and Schedules in the Bill
6. The Committee agreed the clauses in the Bill as drafted or as drafted with proposeddepartmental amendments at its meeting on 6 December 2012. However, a number ofCommittee Members indicated that they were unable to support Clause 7 and Schedules 2and 3 which insert into PACENI the new framework governing the retention and destruction offingerprints, DNA samples, etc. and makes consequential amendments and highlighted theirintention to bring forward amendments to this part of the Bill at Consideration Stage.
Sex Offender Provisions
7. Clauses 1 to 4 and Schedule 1 of the Criminal Justice Bill deal with sex offender provisions,specifically the review of indefinite offender notification requirements; ending of notificationrequirements for acts which are no longer offences; offences committed in a EuropeanEconomic Area State other than the United Kingdom; and sexual offences prevention orders.
8. The Committee agreed that it was content with these clauses and Schedule. The Committeewas supportive of the inclusion of the provision to place statutory notification requirementson offenders with convictions from another European Economic Area State who come toNorthern Ireland for a period of more than seven days and the provision amending the SexualOffences Act 2003 to place positive obligations on a person subject to a Sexual OffencesPrevention Order (SOPO) to undertake a particular action, viewing these as welcome additionsthat would improve public protection arrangements.
Human Trafficking Provisions
9. Clauses 5 and 6 of the Criminal Justice Bill create two new offences relating to traffickingpeople for sexual exploitation and trafficking people for other exploitation.
10. The Committee had previously stated that it wishes to see the strongest possible legislationintroduced in Northern Ireland in relation to human trafficking and therefore welcomes theintroduction of these new offences. The Committee did however express concerns regardingthe possibility that conviction of human trafficking offences would attract a sentence of lessthan six months or a fine and felt this did not reflect the gravity of the offences.
11. The Department subsequently indicated that, in response to the concerns raised by theCommittee, the Minister was considering whether there is a case to make these offencesindictable only, which would mean that offences would be heard in the Crown Court, wherethe maximum term of imprisonment is 14 years. The Department advised that further workon this needed to be completed and if the Minister decided that he wished to make humantrafficking offences indictable only he would table an amendment to the Bill at ConsiderationStage.
12. The Committee noted the Minister’s position and agreed that the issue of sentences forhuman trafficking is an area of concern. Given that, as yet, there have not been manyconvictions for this type of offence, the Committee agreed to review the position and considerthe matter further if it felt that sentencing did not reflect the seriousness of the crime.The Committee also agreed to consider the matter further when the Minister had clarifiedwhether he was going to table an amendment at Consideration Stage to make such offencesindictable only.
13. In the evidence received by the Committee on this part of the Bill a number of the voluntaryorganisations stated that there was an opportunity to put further measures in relation tohuman trafficking into legislation, particularly in relation to protection, assistance and supportfor victims, including children, and training and investigative tools, which the Department hadmissed. The organisations where of the view that the Department had adopted a minimalistapproach in implementing the EU Directive on Human Trafficking.
14. The Committee recognised the merit in making further legislative provision in additional areasand agreed that it would give further consideration to this in the context of Lord Morrow’sPrivate Members’ Bill on human trafficking which will come to the Committee for scrutinyfollowing its introduction into the Assembly.
15. The Committee also noted that the Interdepartmental Ministerial Group, together with theUK Human Trafficking Centre, fulfilled the UK obligations in relation to a National Rapporteurbut expressed some concerns that the process was not independent of Government. Giventhat those countries that had created an independent overseer had seen real success inthe quality of information available and the profile of trafficking in their parliaments, theCommittee agreed to raise the issue of an independent national rapporteur with the Minister.Depending on the Minister’s response the Committee agreed that it may wish to return to thismatter during its consideration of Lord Morrow’s Private Members’ Bill on human trafficking.
Retention of Fingerprints, DNA Profile etc. Provisions
16. Clause 7 of the Bill and Schedules 2 and 3 insert into PACENI the new framework governingthe retention and destruction of fingerprints, DNA samples, etc. and makes consequentialamendments. It also requires the Department to make an order containing transitional orsaving provisions associated with the coming into force of that Clause, and the repealsin Part 2 of Schedule 4. In particular, the Department must provide for the destruction orretention of biometric material already in existence at the point this legislation comes intooperation. This will enable the Department to ensure that the retention and destructionregime set out in the Bill is applied to existing material, while recognising that this exercisemay take some time to complete.
17. The retention framework provisions are being made in response to the 2008 judgement ofthe ECHR in the case of S and Marper v UK. The ECHR ruled that the provisions in the Policeand Criminal Evidence Act 1984 (PACE) for England and Wales permitting the indefiniteretention of DNA and fingerprints from unconvicted individuals violated Article 8 (right toprivacy) of the ECHR. Northern Ireland has similar provisions in PACENI.
18. The Committee agreed to support Clause 7 and Schedules 2 and 3 with some Memberscontent that changes to the Retention Framework in relation to the indefinite retention of DNAand fingerprints from unconvicted individuals were required and the proposals in the Bill wereproportionate and would continue to assist in the detection and prevention of crime whichwas in the interest of public protection.
19. Other Committee Members however expressed strong reservations regarding whether theproposals for the retention of material were proportionate and necessary particularly forthose arrested or charged but not convicted of a qualifying offence, in relation to the policyof indefinite retention in a substantial category of offences and in relation to children andyoung people. They were also concerned with the inclusion of cautions, penalty notices anddiversionary youth conferences within the retention framework. They indicated that they hadserious concerns regarding whether the framework as proposed is compatible with humanrights standards and were therefore not content with Clause 7 and Schedules 2 and 3. Theyindicated their intention to bring forward a number of amendments relating to this part of theBill at Consideration Stage.
Proposed new provisions for inclusion in the Bill
20. The Department informed the Committee of a number of new provisions it intends to bringforward at Consideration Stage. The new provisions relate to notification requirements forsex offenders who travel within the United Kingdom; the issue and withdrawal of notices inrelation to the examination of vulnerable defendants through a Registered Intermediary; andlicence arrangements relating to the release of young offenders convicted of certain seriouscrimes.
21. The Committee briefly considered the merits of each of them and agreed that it was contentto support their inclusion in the Bill at Consideration Stage.
22. In response to the Committee’s call for evidence Ian McCrea MLA wrote requesting that theCommittee include a miscellaneous provision in the Bill relating to statutory prohibitions onholding firearms.
23. Mr McCrea outlined that there is currently an 8 year prohibition or a life prohibition on aperson from purchasing, acquiring or possessing a firearm and ammunition at any time if theyare sentenced or a suspended sentence is imposed. Both prohibition tariffs can be appealedunder Article 63 of the Firearms (Northern Ireland) Order 2004 but appeals prove extremelydifficult to achieve. Mr McCrea wished to see the introduction of a tariff that was varied toreflect more accurately the seriousness of the offence rather than those convicted of a nonviolentoffence receiving the same tariff as those convicted of violent/serious offences. In hisview this would provide for a fairer system.
24. The Committee sought the views of the Department on the proposal. The Departmentindicated that a difficulty in moving to an offence based approach, as proposed by Mr McCrea,was the problem of “ranking” offences and the development of such an approach would, in itsview, be likely to require significant work. It also pointed out that any changes would requirethe agreement of the Secretary of State for Northern Ireland as prohibitions for offencesrelating to national security are referred to her for consideration. The Department suggestedthat if the Committee concluded that Article 63 required reviewing then a consultation shouldbe conducted to allow the Minister and others to give serious consideration to the proposaland what could be very significant consequences.
25. The Committee noted the position of the Department on this matter and agreed to considerthe proposal further once the consultation being undertaken on a range of issues relatingto firearms, including fees, by the Department has been concluded in February/March 2013rather than in the context of this Bill.
26. The offence of scandalising the court, also known as scandalising judges or scandalising thejudiciary, is a form of contempt of court. The rationale for such an offence derives from theneed to uphold public confidence in the administration of justice.
27. In March 2012 the Attorney General for Northern Ireland brought a prosecution against PeterHain MP for the common law offence of scandalising the court for statements he made in hisbook ‘Outside In’ in which he criticised a judge. The prosecution attracted significant mediaand political interest at the time with questions being raised regarding the right to freedom ofexpression and such criticism being regarded as “political speech” and therefore, under theEuropean Convention on Human Rights, subject to the highest degree of protection, althoughnot absolute and whether the offence was obsolete. The Court was invited to make no orderafter Mr Hain clarified the intention behind his remarks.
28. The prosecution prompted an amendment to be laid in the House of Lords in relation tothe Crime and Courts Bill proposing the repeal, without replacement, of the offence ofscandalising the court for England, Wales and Northern Ireland. The amendment, broughtforward by Lord Pannick QC, was subsequently withdrawn at Committee Stage to allow theGovernment time to consider the matter.
29. The Minister of Justice wrote to the Committee in September 2012 informing it that theMinister of State, Lord McNally, had advised that, having considered and consulted on theissue the Government was minded to support the amendment and wished to know if NorthernIreland wanted to be included in it. The Minister reminded the Committee of his preferencefor local legislation and indicated that he considered that it would be more appropriate forthis matter to be looked at separately in a Northern Ireland context. He had therefore advisedLord McNally that Northern Ireland should not be included in the Crime and Courts Bill andhad asked his officials to take forward work to seek views on this in Northern Ireland. Whenasked by the Committee for the timescale for completion of this work the Minister indicatedthat, subject to any other competing priorities, he planned to take forward a consultation onthe issue in the New Year.
30. The Committee considered the matter and was of the view that the Criminal Justice Billcould provide an appropriate vehicle in which to take forward the repeal of this offence. TheCommittee agreed that an amendment should be drafted on this basis and advice soughton whether such an amendment would fall within the scope of the Bill. The Committee alsoagreed to seek the views of the Attorney General for Northern Ireland given his interest inthe matter and noted the results of the consultation undertaken by the Law Commission inEngland and Wales in which there was general support for abolition of the offence in thosejurisdictions.
31. While noting the response from the Attorney General in which he outlined that, in his view,the Criminal Justice Bill may provide an opportunity to recast scandalising contempt instatutory form rather than repealing the offence, the Committee agreed that it wished tosee the offence of scandalising the court abolished in Northern Ireland and was contentwith the amendment as drafted. Given that there may be an issue with the admissibility ofthe amendment in relation to this Bill the Committee agreed to write to the Speaker prior toConsideration Stage and seek his view before tabling it. If the amendment is deemed notto be admissible in this Bill the Committee will take the issue forward in the Faster, FairerJustice Bill which the Minister intends to introduce into the Assembly in 2013.
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