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Northern Ireland (Criminal Justice)

Volume 984: debated on Wednesday 14 May 1980

The text on this page has been created from Hansard archive content, it may contain typographical errors.

1.44 am

I beg to move,

That the draft Criminal Justice (Northern Ireland) Order 1980, which was laid before this House on 28 March, be approved.
Before dealing with the content of the order I should like to explain that, following publication of the proposal, a few changes have been made to the order. One relates to the new procedure for pleas of guilty in the absence of the accused—schedule 1, paragraph 5.

The draft order, as originally published, provided that where this procedure is used a court shall not without adjournment order any disqualification. We have since added a requirement that in such circumstances a notice of adjournment shall be served on the accused to advise him of the reason for adjournment so that he will be aware of the gravity of his position and will have every opportunity to appear before the court and be heard.

In the same paragraph we have added a new section 37D to the Magistrates' Courts Act (Northern Ireland) 1964. Difficulties at present arise because a magistrates' court is unable to compel the attendance of an accused person at court if he repeatedly refuses to attend after conviction of an offence which is punishable with imprisonment. The new section 37D meets this deficiency by allowing the court to issue a warrant for his arrest in such circumstances.

The House may also wish to note that we have amended the changes to the Prosecution of Offences (Northern Ireland) Order 1972 which are now contained in paragraphs 65 to 68 of the order. The amendment narrows the effect of the changes to limit the power of the Director of Public Prosecutions for Northern Ireland to consent to prosecutions under United Kingdom Acts to those circumstances where the DPP for England and Wales can give consent to like offences here. Fears were expressed that to do otherwise would be ultra vires.

A few other minor changes have been added to pave the way for consolidation measures which will be laid before the House shortly or to clarify the provisions already contained in the order.

Two items have been omitted from the order because of reservations expressed during the consultation period. One was the proposed addition to the powers of the court to allow a close relative to appear on behalf of the accused and to enter a plea of " guilty ". This was included at paragraph 29 of the proposal. Some people were concerned that a relative might appear before the court without the authority or permission of the defendant and we decided that on balance it would be better to omit it.

The proposed amendment to the Children and Young Persons Act (Northern Ireland) 1968 referred to in paragraph 46 of the proposal has also been omitted. This amendment would have had the effect of removing the requirement that a magistrates' court refer a young person to a juvenile court to be dealt with after conviction. The report of the children and young persons review group—the Black committee—has now been published and we decided that in the light of that report such an amendment should be further considered in that context.

These changes in the content of the order since publication as a proposal, while perhaps minor when considered in the context of the order as a whole, nevertheless show the value of the consultative procedure for Orders in Council under the 1974 Act. Much useful and helpful comment was received on this order—particularly from the magistracy and the legal profession—and the final version of the order has been improved as a result.

The order encompasses a considerable range of items and I will mention now only a few of its more important provisions. Articles 3, 4 and 5 deal with compensation to victims of crime. The courts in Northern Ireland already have powers under various statutes to order compensation, and the order will replace these with a single comprehensive provision.

The principal changes from the existing law will be that application by the victim will no longer be required; that compensation may be ordered in respect of offences " taken into consideration " and that the financial limits will be increased from £200 to £1,000 in the case of magistrates' courts, and the existing limit of £400 for higher courts will be removed. It is hoped that this wider, single, comprehensive provision will have the effect of encouraging the courts to exercise their powers for awarding compensation to victims of crime more actively.

Article 6 will extend the powers of courts to make restitution orders where offences are taken into consideration and will remove the requirement of an application to the court by the victim of theft in certain circumstances.

Article 7 provides that the courts on convicting a person of an offence punishable on indictment with a sentence of two years or more may order the offender to be deprived of property which had been used or was intended for use for the purposes of crime. This would include such items as burglar's tools or even a vehicle used to dispose of stolen goods or used as a get-away car.

Article 11 provides for the return from the Lord Chancellor to the Secretary of State of responsibility for the State pathologist service, and will restore the position to what it was prior to the passing of the Judicature (Northern Ireland) Act 1978.

Part I of schedule I includes a number of amendments to the Magistrates' Courts Act (Northern Ireland) 1964. While many of these are minor or technical, some deserve special mention. Paragraph 5 of the schedule sets out a new plea of guilty by post procedure similar to that already operating in England and Wales.

The introduction of the new procedure will, I am sure, result in a saving of time and expense not only for the courts but also for defendants and witnesses. The House should note that the new sections 37B, 37C and 37D—which relate to proof of previous convictions, restrictions on the courts' power to impose sentences of imprisonment, and the power to issue a warrant for a person convicted of an offence punishable with imprisonment— are general provisions and will not apply exclusively to cases tried under the new procedure set out in the new section 37A.

The order also increases maximum fines which may be imposed by magistrates' courts under the 1964 Act. Para- graph 8 increases the maximum fine for offences also triable on indictment from £200 to £1,000. Paragraph 13 increases the maximum fine from £100 to £200 for a summary offence under any enactment which provides only for a sentence of imprisonment; for example, offences under the Vagrancy Act 1824. These increases are in line with changes made in England and Wales by the Criminal Law Act 1977. The order will also increase the maximum fine which may be imposed on a witness for failure to attend in answer to a summons and the penalty for disorderly conduct in court. These increases are to be found at paragraphs 17 and 26 respectively.

Paragraph 31 of schedule I sets out a revised table of the maximum periods of imprisonment which may be imposed in default of payment of fines and other sums imposed by magistrates' courts. The new table is similar to that now applying in England and Wales by virtue of section 59 of the Criminal Law Act 1977, and will pave the way for the bringing into operation of section 40 of the Criminal Law Act 1977, which deals with the reciprocal enforcement of fines throughout the United Kingdom.

We have also taken the opportunity to extend and clarify section 101 of the 1964 Act, which deals with the powers of the court to allow time for payment of fines, or to allow payment by instalments, or to allow remission of fines. Part II of schedule I contains a number of amendments to other enactments.

Paragraph 36 amends the Coroners Act (Northern Ireland) 1959 to facilitate the holding of a single inquest where a number of deaths arise from a single accident or incident. Paragraph 40 relaxes the restrictions on coroners so as to enable them to have a post-mortem carried out in any case where he considers an inquest might be necessary or desirable. Paragraphs 76 and 77 amend the provisions of articles 8 and 10 of the Treatment of Offenders (Northern Ireland) Order 1976. Article 8 is amended to provide that a community service order shall remain in force unless revoked by the court. This is intended to obviate the need to seek a formal extension of a community service order beyond the maximum 12-month period where only a small number of hours remain to be worked.

Article 10 of the 1976 order is amended to give the court power to revoke a community service order and deal with the offender for the related offence where the person is convicted of a further offence during the period that the community service order is in force. Both these provisions are similar to changes made for England and Wales by the Criminal Law Act 1977.

I hope that the House will feel that I have said enough, at least at this late hour and at this stage, on what is a quite wide-ranging and in many ways technical order. Much of the content represents the result of a continuous process of reviewing the law in the absence of devolved government in Northern Ireland, while other aspects arise from experience in the operation of the existing provisions. Together they form a useful package which should prove a valuable contribution to the administration of justice in Northern Ireland, and I commend the order to the House.

1.55 am

It had been my intention to deal purely with the merits of the proposals presented to the House and to give a general welcome to what, as the Minister of State said, is a useful package of improvements to the law. However, I must turn aside from that intention and once again register a protest about the hour at which Northern Ireland debates take place. In the pantomime Cinderella, the heroine disappears at midnight. An unpleasant reverse Cinderella syndrome is developing in this House, whereby those wishing to debate Northern Ireland matters do not even appear until midnight.

It is not good enough that our representations, which the Minister of State was good enough to undertake to bring to the attention of those in the Government who manage our affairs, that Northern Ireland business should be taken at a reasonable hour have not been heeded, and that representations made today, I understand, were not heeded either. This is no criticism of the Minister of State. He has no hand in the management of the Government's business, but I ask him to bring to the attention of the Leader of the House and of the Chief Whip our strong feelings on this matter, because it makes a mockery of sensible debate on what the Minister has described as a highly technical order if I rise at five minutes to 2 a.m. to lead for the Opposition.

One of the items to which I give a warm welcome is to be found in paragraph 5 of schedule I, namely, the ability of defendants to plead guilty by post. Under no circumstance can the Northern Ireland office be thought to have been over-hasty in bringing forward this proposal, since it has been enjoyed in England and Wales for many years. For the life of me I cannot understand why it has not been introduced before now into the criminal law in Northern Ireland, because not only does it save expense by not requiring the attendance of witnesses at court, but it saves the time of the court by its knowing that pleas of guilty will be tendered and read on written information rather than on representation. In addition, it will save the time and efforts of the police force, by not requiring police officers to be present in court, often on a fruitless two-minute case, for which they are out of the police station for a number of hours.

I welcome the gathering together in one enactment of all the powers that are available for the courts to order compensation and restitution. The Minister may not be able to respond tonight, and if so perhaps he will write to me, but I should like to know what use is made of these powers by courts in Northern Ireland. The Minister knows, as I do, that members of the public frequently complain that the courts do not use their powers sufficiently to order restitution and compensation.

When I was at the Home Office I looked into this matter and found that to be untrue, but there is, nevertheless, a strong impression among the public that that is so, and any figures that the Minister can give of the use by the courts of these powers will reassure those who believe that the deterrent lies in the power of the magistrates not only to punish but to order that the person to whom the wrong has been done is compensated.

I welcome the increase in the maximum fine that is able to be imposed by the courts. I could hardly do otherwise, since I was responsible for piloting the 1977 Criminal Law Bill through the House. It brings the fine more into line with what it should be and compensates somewhat for the loss in the value of money over the years. Unfortunately, the lapse of three years between the introduction of the £1,000 fine in England and Wales and its introduction now in Northern Ireland means that, in real terms, the value of the deterrent has suffered a little.

Why did the Minister and his advisers fail to take the opportunity to enact in this order section 61 (1) of the Criminal Law Act 1977? The Minister may not instantly recognise my reference to that, but it is the power given to the Home Secretary—which could be given to the Secretary of State for Northern Ireland under this order—to compensate for the loss in the value of money by order, subject to a negative resolution, without the undue necessity of frantic legislation after five or six years to provide for a huge jump in fines to restore the value of the deterrent in real terms. We thought it a good idea at the time.

The opportunties for legislation in the House are not frequent. Indeed, an opportunity at a decent time for legislation on Northern Ireland matters is almost impossible. I should have thought that the Minister would have availed himself of the opportunity to incorporate into the order a provision to enable the Secretary of State for Northern Ireland to raise the fines in line with the rate of inflation, so that the real value of the deterrent could be maintained.

We need a little more information about the payment of fines. Questions arise about the supervision of fines and the payment of them by instalments. Does the Minister recognise the extent of the problem? What special problems exist in Northern Ireland over the supervision of fines and the enforcement of penalties imposed by the courts?

I wish to devote the major part of my remarks to paragraphs 21 to 23 of the schedule, namely, those dealing with bail and bail default. We are talking about courts that do not come under the emergency powers Act. I understand that the Minister has grave reservations. Whenever we debate that Act he expresses reservations about the granting of bail in cases that come within the order. We are talking not about those cases, but about cases that are analogous to cases in England and Wales. That is why I am puzzled and wonder why, when we are sums up what the working party felt, states:
" We think it would be a more effective deterrent to absconding if it were a criminal offence for a person to fail to answer to his bail ".
It points out that when a man who is sentenced to imprisonment finally turns up or is arrested, it is unusual to forfeit the recognisance because he would be sentenced to custodial treatment anyway and there would be little chance of getting the money. Therefore, this is an strain on the budget of law and order, which could be better served in more constructive ways. If that is incredible, it is even more incredible that, in the order, we are to continue with the discredited system of taking recognisances either from the accused or from sureties for his surrender to his bail at due time.

As a prelude to the Bail Act 1976 a working party on bail and bail procedures was established in the Home Office, and it reported in 1974. Chapter 4 of the report, beginning at paragraph 95, dealt with, and analysed in great detail, the system of recognisances, whether they were working and whether they were a deterrent. It came to the conclusion that the system was illogical and not a deterrent. That is why a special criminal offence of failure to surrender to bail was inserted in the Bail Act.

Paragraph 102 of the report, which incorporating a great deal of the 1977 and 1976 legislation into Northern Ireland law, the occortunity has not been taken to incorporate the provisions of the Bail Act 1976.

That Act has cardinal requirements. The accused is presumed to have a right to bail unless the contrary is proved. The courts have ample powers to deny bail where, for example, they believe that it is probable that the accused will not surrender to his bail or that he will interfere with the course of the investigations while he is on bail. If they refuse bail they must give written reasons for doing so. That is a great advantage, and an advance in criminal law. Again, for the life of me, I do not understand why it is not being extended to Northern Ireland by this legislation.

If remands in custody are excessive, it adds to the strain from which the prison service in Northern Ireland suffers. Unnecessary bail is an added antiquated method which has not proved effective in practice, as the Minister will know. I again wonder why the opportunity was not taken to do away with that antiquated system and replace it with a recommendation that absconding from bail should be a specific criminal charge.

I end on that note. However, at the risk of wearying the Minister with something about which I do not feel very weary, I repeat that unless these matters can be discussed sensibly we risk passing measures that are ill-considered because we are in no shape to carry out our proper legislative function. That cannot be good, either for this Parliament or for Northern Ireland.

2.7 am

Before dealing with the contents of the order I should like to underline much of what was said by the hon. Member for Pontypridd (Mr. John) and protest at the time at which this order is being debated.

The business of Tuesday 13 May finished at 7 o'clock yesterday morning, yet here we are this morning dealing with the business of Wednesday. We are expected to deal with a comprehensive legal document, which has wide ramifications, not just at the end of one all-night sitting, but at the end of virtually a second all-night sitting. For that reason two of my colleagues who are most assiduous in their attention to duty are not with us, and their contributions would have been invaluable.

It is appalling that the Government did not respond to the request made by the Leader of my party, my hon. Friend the Member for Antrim, South (Mr. Molyneaux), when he apprehended the Leader of the House earlier this evening. The right hon. Gentleman was dressed in a pink silk shirt, with a white silk collar and a darker pink silk tie. He cut a fine psychedelic figure—some would say, sycophantic—and was on his way to a ball which no doubt began before 12 o'clock.

The right hon. Gentleman soft-shoe shuffled out of the Chamber to wherever he was going and left us without any hope that he was any more sensitive than his predecessor was to our approach to have this kind of business dealt with at a reasonable hour. We must not be treated like some colony. I impress upon the Minister that he must sort out his management of Northern Ireland orders. We shall tolerate this no longer. It is up to Her Majesty's Government to effect a relationship with minority parties, such as my own, to ensure that the whole of the kingdom is legislated for in a manner that is credible and not incredible.

In anticipation of the debate we requested views from professional bodies whose task it is to involve themselves in this sort of legislation or who are interested in it. In considering the order we have had regard to the views of organisations such as the Incorporated Law Society. That body has offered three observations, and I am pleased to hear this morning that the Minister has anticipated one of them and removed from the order the paragraph that would have enabled an accused person to be represented by an untrained relative and to have a plea entered by that person. We do not need much elaboration at this hour of the morning. It does not require much imagination to visualise the great difficulty that that paragraph would have caused and to realise some of the awful problems that the court and the accused would have faced. We are pleased that the Minister has withdrawn that paragraph.

The order bears on the Coroners Act (Northern Ireland) 1959 and inquests. It is felt that, in determining where an inquest should be held, regard should be had to the inconvenience of witnesses and relatives that may arise if the victim dies in the jurisdiction of a coroner some distance away from the victim's home or from the scene of the accident. There appears to be an increasing tendency to take seriously injured persons to one of the few hospitals that are equipped to deal with specialist medical problems. Such a hospital could be miles from the scene of the accident, and if the injured person dies in there the witnesses and relatives may have to travel considerable distances to attend the inquest. It would appear desirable that in such circumstances the coroners in the various jurisdictions should be able to agree in whose jurisdiction the inquest should take place, taking into account the convenience of those required to give evidence.

Finally, I comment on the order and the Children and Young Persons Act (Northern Ireland) 1968. The removal of the requirement that magistrates must remit to a juvenile court a case in which they find a young person guilty is regarded by the Law Society as a retrograde step, and my colleagues and I agree with it. The society considers that the juvenile courts are more skilled in dealing with young offenders. It feels that the requirement should not be removed.

I do not think that anyone is more concerned than myself about the need to apply justice and the law ruthlessly in Northern Ireland, but it is important to recognise that there are extenuating circumstances in Northern Ireland which do not obtain in many other parts of the United Kingdom and which unfortunately result in a number of young persons being sucked into crime, perhaps under the guise of a political movement. Therefore, it is important that juvenile courts, which are skilled in dealing with particularly young offenders, should deal with these young people. I make the plea to the Minister that the magistrates' court should remit such cases to the juvenile court and that that provision should not be removed.

I end on a note of censure. Whilst we do not hold the Minister responsible for the late hour at which the debate is held, we ask him to understand the sense of frustration and anger that is felt on both sides of the House, by all Members from the Province, and to convey in the clearest terms to his right hon Friends that we shall not tolerate this kind of treatment in future.

2.16 am

I make a brief intervention to ask the Minister what is meant by the article in the order which states that there is power to deprive a convicted person of property which he used or intended to use in the commission of a crime. I am curious to know how widely the term " property " is to be interpreted. The Minister mentioned tools or implements which might be used for burglary or breaking and entering, but it would not take a great deal of imagination to see where that could lead.

As the House is being asked to approve this measure, it is right that we should know what is meant by " property ". If a house or other building were used to plan the commission of a crime, or if weapons, explosives or burglar's tools were stowed therein, would that building or house come within the term " property "? Could it be confiscated in the same way as much smaller implements can be confiscated?

2.17 am

As the responsible Minister, I hardly dare to associate myself fully and completely with the remarks made by the hon. Members for Pontypridd (Mr. John), for Belfast, South (Mr. Bradford) and for Londonderry (Mr. Ross) about the late hour of the debate. However, I assure them that I am conscious of the anger and distress that they feel at having to take the order so late.

I made representations to the appropriate quarters earlier in the evening and serious consideration was given to not moving the order. The point was that hon. Members had already been here for some considerable time. We found ourselves confronted with a dilemma. Having sat and waited for so long, was the dish that arrived so late, even at the last moment, to be dashed from the diner's plate? We thought that it was better to proceed to complete the business.

I hope that the hon. Members for Pontypridd and for Belfast, South will understand that there are certain problems of timing the start of debates. We had every expectation—and reason to believe that expectation would be fulfilled, as a result of communications through the usual channels—that the previous business would be completed at a reasonable hour. I do not attempt to disguise that we are as distressed and upset as are hon. Gentlemen at the lateness of the hour, and I shall do everything that I can to draw this complaint to the attention of the Leader of the House and of the Patronage Secretary.

I turn to points made by hon. Members in commenting on the order. I am grateful to them for the general welcome they have given it. The hon. Member for Pontypridd asked about the extent to which the courts in Northern Ireland were exercising their powers, particularly in the matter of compensation. Comprehensive figures showing the full extent to which these powers are used are not readily available, but I have made some attempt to discover the state of play. A sample survey of cases dealt with in the three months ending 31 March this year revealed that out of approximately 36,000 cases dealt with by the courts, 600 compensation orders were made. It is difficult to evaluate these figures, however, because many cases—for example, traffic offences, which comprise about 50 per cent. of the cases dealt with—would not have been cases in which compensation orders would have been appropriate. It still works out at a fairly small percentage.

We hope that the wider single comprehensive provision which we are now making in this order will encourage the courts to make more frequent use of powers to award compensation to victims of crime. I am glad that the hon. Gentleman has given us an opportunity to dwell on this matter, because I hope that there will be reverberations in court circles in the Province as a result of the step forward that we are taking here.

The hon. Gentleman made a reasonable point about section 61 of the Criminal Law Act, with its provision for inflation proofing the range of fines. We are carrying out a general review of fines and the powers of the Secretary of State in this context. I shall bear in mind the hon. Gentleman's constructive suggestion. We shall seek to weave in something along these lines as soon as we can. It was a fair and reasonable point, and I am grateful to the hon. Gentleman for making it.

Perhaps I may drop the hon. Gentleman a note about the problem with which we are faced in collection and enforcement, but I do not have any reason to believe that it is a severe problem.

The amendments to the law concerning bail in Northern Ireland, contained in paragraphs 21 to 23 of the schedule, are relatively minor. They are not the result of a detailed study of the whole law of bail and do not purport to bring Northern Ireland law into line with that for England and Wales. Paragraph 21 should result in fewer people being remanded in custody. Paragraph 22 will widen the circumstances in which a surety may be discharged from his obligation. Paragraph 23 merely removes a doubt as to whether a court may remit a recognisance in full.

I am interested in what the hon. Gentleman said about, for example, the reasonableness of introducing the criminal sanction in Great Britain in this context. I shall consider his point to see whether there should be a uniform provision. Not being a lawyer, having had to master the concept of this treatment of recognisance for the first time, I am inclined to do anything that will get us out of having to use that procedure.

The hon. Member for Belfast, South made a point on inquests, which I have noted. We are anxious to make the system as sensible, as flexible and as convenient as possible, but sometimes it is difficult to know to whom convenience should be directed in this context. Families and relatives are important, but they may find that they have to travel considerable distances. Witnesses and other people involved in the case are also important. We want to get the system, as we have tried to make it here, as flexible as possible to make for the greatest simplicity and convenience, but I take the hon. Gentleman's point.

On the part dealing with the Children and Young Person's Act, I think that we are pushing in the same direction. What we have done in the order since the proposals were published is exactly what the hon. Gentleman wanted. We are doing this because, apart from anything else, the Black committee, which the hon. Gentleman will know about, in an important and epoch-making document analysing the balance between justice and welfare in the Province, has come out with specific proposals and ideas about the need for an expert court to deal with juveniles. In this order we do not want to move at all until we have had a chance to digest the Black proposals.

I think that I have covered the points on which hon. Gentlemen have touched in going through this rather complex order. If there is anything which I have not picked up I shall look at Hansard and write to hon. Gentlemen about it.

I shall presently be conveying representations to my right hon. Friend the Leader of the House about the late hour at which this debate has been taken.

Question put:—

Division No. 307]


[2.26 am

Alison, Michael

Jopling, Rt Hon Michael

Stevens, Martin

Ancram, Michael

Lang, Ian

Stradling Thomas, J.

Best, Keith

Lloyd, Peter (Fareham)

Thompson, Donald

Blackburn, John

McNair-Wilson, Michael (Newbury)

Townend, John (Bridlington)

Boscawen, Hon Robert

McQuarrie, Albert

Viggers, Peter

Brown, Michael (Brigg & Sc'thorpe)

Marlow, Tony

Waddington, David

Cadbury, Jocelyn

Morris, Michael (Northampton, Sth)

Walker, Bill (Perth & E Perthshire)

Chapman, Sydney

Morrison, Hon Peter (City of Chester)

Waller, Gary

Cope, John

Neubert, Michael

Wheeler, John

Dorrell, Stephen

Newton, Tony

Wickenden, Keith

Douglas-Hamilton, Lord James

Parris, Matthew

Young, Sir George (Acton)

Freud, Clement

Penhaligon, David

Garel-Jones, Tristan

Pollock, Alexander


Gower, Sir Raymond

Shepherd, Colin (Hereford)

Mr. Peter Brooke and

Hawkins, Paul

Squire, Robin

Mr. John Wakeham.




Mr. Peter Robinson and

Mr. Robert J. Bradford.

Question accordingly agreed to.


That the draft Criminal Justice (Northern Ireland) Order 1980, which was laid before this House on 28 March, be approved.