Justice Bill: Further Consideration Stage

Executive Committee Business – in the Northern Ireland Assembly at 4:45 pm on 16 June 2015.

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Photo of John Dallat John Dallat Social Democratic and Labour Party 4:45, 16 June 2015

I call the Minister of Justice, Mr David Ford, to move the Bill.

Moved. — [Mr Ford (The Minister of Justice).]

Photo of John Dallat John Dallat Social Democratic and Labour Party

Members will have a copy of the Marshalled List of amendments detailing the order for consideration. The amendments have been grouped for debate in my provisional grouping of amendments selected list. There are three groups of amendments, and we will debate the amendments in each group in turn.

The first debate will be on amendment Nos 1 to 5, 8 to 10, 13, 14, 16, 18, 19 and 22, which are consequential and technical amendments relating to domestic violence and child protection, committal reform and the powers of the Department in respect of secondary legislation. The second debate will be on amendment Nos 6 and 7, which deal with early release conditions and sentencing proposals. The third debate will be on amendment Nos 11, 12, 15, 17, 20 and 21, which deal with firearms.

I remind Members intending to speak that, during the debates on the three groups of amendments, they should address all of the amendments in each group on which they wish to comment. Once the debate on each group is completed, any further amendments in the group will be moved formally as we go through the Bill, and the Question on each will be put without further debate. If that is clear, we shall proceed.

Clause 6 (Consequential amendments)

Photo of John Dallat John Dallat Social Democratic and Labour Party

We now come to the first group of amendments for debate. With amendment No 1, it will be convenient to debate amendment Nos 2 to 5, 8 to 10, 13, 14, 16, 18, 19 and 22. These amendments are consequential to the decisions made by the House at Consideration Stage. There is one non-departmental amendment in the group in relation to vulnerable witnesses in committal reform.

The rest of the group comprises departmental amendments to facilitate the inclusion in the Bill of amendments relating to domestic violence and child protection, committal reform and the powers of the Department in respect of secondary legislation. Amendment No 3 is mutually exclusive with amendment No 4. Amendment No 14 is consequential to amendment No 1. Amendment Nos 13, 16 and 19 are consequential to amendment No 9. Amendment No 22 is consequential to amendment No 2.

I call the Minister of Justice Mr David Ford to move amendment No 1 and to address the other amendments in the group.

Photo of David Ford David Ford Alliance

I beg to move amendment No 1:

In page 4, line 40, at end insert

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&quot;(2) The Department may by order make such supplementary, incidental or consequential provision as it considers appropriate in consequence of, or for giving full effect to, this Part.


 


(3) An order under subsection (2) may amend, repeal, revoke or otherwise modify any statutory provision.&quot;.

The following amendments stood on the Marshalled List:

No 2: In clause 7, page 5, leave out lines 7 to 12 and insert



&quot;7.—(1) The Magistrates’ Courts (Northern Ireland) Order 1981 is amended as set out in subsections (2) to (5).


 


(2) After Article 29 insert?—


 


‘Committal proceedings for indictable offences


 


29A.—(1) Committal proceedings in a magistrates’ court in relation to an indictable offence are to be conducted?—


 


a) in a case where the court directs under this Article that a preliminary investigation is to be held, by way of a preliminary investigation;


 


(b) in all other cases, by way of a preliminary inquiry.


 


(2) An accused may apply to the court for a direction that a preliminary investigation is to be held.


 


(3) Magistrates’ court rules may make provision in relation to an application under paragraph (2), including provision?—


 


(a) for an application to set out the grounds on which the application is made and contain such other information as may be prescribed;


 


(b) requiring an application to be made before a prescribed time;


 


(c) for the procedure to be followed in determining the application (including provision for representations to be made to the court by the prosecution or the accused).


 


(4) The court, after considering the application and any representations made to the court, may direct the holding of a preliminary investigation if (and only if) the court is satisfied that a preliminary investigation is required in the interests of justice.


 


(5) In determining an application under paragraph (2) the court shall in particular have regard to?—


 


(a) the nature of the offence or offences charged;


 


(b) the interests of the persons likely to be witnesses at a preliminary investigation.”.


 


(3) In Article 30 (preliminary investigation) for paragraph (1) substitute?—


 


“(1) This Article applies where committal proceedings are conducted by way of a preliminary investigation following a direction under Article 29A.”.


 


(4) Omit Article 31 (preliminary inquiry at request of prosecution).


 


(5) In Article 32 (preliminary inquiry: service of documents)?—


 


(a) in paragraph (1) for the words from the beginning to the end of sub-paragraph (a) substitute?—


 


“(1) A reasonable time before the day fixed for the conduct of committal proceedings, the prosecution shall?—


 


(a) provide the clerk of petty sessions with copies of the documents mentioned in sub-paragraph (b); and”;


 


(b) in paragraph (1)(b) omit?—


 


(i) the words “a copy of that notice together with”; and


 


(ii) the words “a reasonable time before the day fixed for the conduct of the preliminary inquiry”;


 


(c) omit paragraph (3).


 


(6) In section 4 of the Criminal Jurisdiction Act 1975 (trial of extra-territorial offences) for subsection (3) substitute?—


 


“(3) Where a person is charged with an extra-territorial offence so much of Article 29A of the Magistrates’ Courts (Northern Ireland) Order 1981 as affords to the accused a right to apply for a direction that a preliminary investigation is to be held shall not apply, and the procedure shall be by way of preliminary inquiry under that Order, and not by way of preliminary investigation.”.


 


(7) Section 3 of the Justice and Security (Northern Ireland) Act 2007 (committal proceedings for trial without a jury) is repealed.&quot;. — [Mr Ford (The Minister of Justice).]

No 3: In clause 8, page 5, leave out lines 14 to 16 and insert



&quot;8.—(1) Article 34 of the Magistrates’ Courts (Northern Ireland) Order 1981 (giving of evidence on oath at preliminary inquiry) is amended as follows.


 


(2) After paragraph (1) insert?—


 


“(1A) The prosecution or the accused may apply to the court for leave to require a person to attend and give evidence on oath in accordance with paragraph (2).


 


(1B) Magistrates’ court rules may make provision in relation to an application under paragraph (1A), including provision?—


 


(a) for an application to set out the grounds on which the application is made and contain such other information as may be prescribed;


 


(b) requiring an application to be made before a prescribed time;


 


(c) for the procedure to be followed in determining the application (including provision for representations to be made to the court by the prosecution or the accused).


 


(1C) The court, after considering the application and any representations made to the court, may give leave to the applicant if (and only if) the court is satisfied that the interests of justice require it.


 


(1D) In determining an application under paragraph (1A) the court shall in particular have regard to?—


 


(a) the nature of the offence or offences charged;


 


(b) the interests of the persons likely to be required to give evidence at the preliminary inquiry.


 


(1E) Where leave is granted to one party under paragraph (1C), the court may (without any application) grant leave to the other party to require a person to attend and give evidence on oath in accordance with paragraph (2).”.


 


(3) In paragraph (2) for the words from the beginning to “may each require” substitute “The court (of its own motion), the prosecution (if granted leave under paragraph (1C) or (1E)) and the accused (if granted such leave) may each require”.&quot;. — [Mr Ford (The Minister of Justice).]

No 4: In clause 8, page 5, line 16, after &quot;justice&quot; insert



&quot;, with the presumption of exemption from giving evidence on oath to a vulnerable witness; a victim of rape or a violent sexual assault unless deemed that exceptional circumstances exist&quot;. — [Mr McCartney.]

No 5: In clause 48, page 35, line 1, leave out subsections (2) to (4) and insert



&quot;(2) In Article 49 (1) (interpretation of Part 3)?—


 


(a) after the definition of “agencies” insert?—


 


“ “child” means a person under the age of 18;


 


“conviction” includes?—


 


(i) a conviction by or before a court outside Northern Ireland;


 


(ii) any finding (other than a finding linked with a finding of insanity) in any criminal proceedings that a person has committed an offence or done the act or made the omission charged;


 


(iii) a caution given to a person in respect of an offence which, at the time when the caution was given, the person has admitted;”;


 


(b) after the definition of “specified” insert?—


 


“ “relevant previous conviction”, in relation to a person, means a conviction for a sexual or violent offence by reason of which the person falls within a specified description of persons;”.


 


(3) In Article 50 (guidance to agencies on assessing and managing certain risks to the public) after paragraph (2) insert?—


 


“(2A) Guidance under this Article must contain provisions about arrangements for considering the disclosure, to any particular member of the public, of information concerning any relevant previous convictions of a person where it is necessary to protect a particular child or particular children from serious harm caused by that person; and the guidance may, in particular, contain provisions for the purpose of preventing a member of the public from disclosing that information to any other person.”.


 


(4) In Article 50(3) for “Paragraph (2) does” substitute “Paragraphs (2) and (2A) do”.&quot;. — [Mr Ford (The Minister of Justice).]

No 8: In clause 90, page 65, line 7, leave out from beginning to &quot;magistrates’ court&quot; on line 8 and insert



&quot;In relation to criminal proceedings in the Crown Court or a magistrates’ court, it is the duty of the court, the prosecution and the defence&quot;. — [Mr Ford (The Minister of Justice).]

No 9: After clause 95 insert



&quot;Domestic violence protection notices and orders


 


Domestic violence protection notices and orders


 


95A. Schedule 6A (which makes provision about domestic violence protection notices and orders) has effect.&quot; — [Mr Ford (The Minister of Justice).]

No 10: After clause 98 insert



&quot;Amendment to Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015


 


Amendment to Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015


 


98A.—(1) Section 21 of the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (independent guardian) is amended as follows.


 


(2) In subsection (4) for paragraph (a) (which requires arrangements to be made with a charity registered under the Charities Act (Northern Ireland) 2008) substitute?—


 


“(a) be made with a charity;”.


 


(3) In subsection (11) (definitions) after the definition of “administrative decision” insert?—


 


“ “charity” means an institution which is?—


 


(a) a charity within the meaning of section 1 of the Charities Act (Northern Ireland) 2008 or treated as such a charity by virtue of the Charities Act 2008 (Transitional Provision) Order (Northern Ireland) 2013;


 


(b) a charity within the meaning of section 1 of the Charities Act 2011; or


 


(c) a charity within the definition set out in section 106 of the Charities and Trustee Investment (Scotland) Act 2005;”.&quot;. — [Mr Ford (The Minister of Justice).]

No 13: In clause 99, page 70, line 17, leave out &quot;or 51(12)&quot; and insert



&quot;, 51(12) or paragraph 10 of Schedule 6A&quot;. — [Mr Ford (The Minister of Justice).]

No 14: In clause 99, page 70, line 18, after &quot;section&quot; insert &quot;6(2)&quot;. — [Mr Ford (The Minister of Justice).]

No 16: In clause 103, page 71, line 11, at end insert



&quot;( ) paragraph 10 of Schedule 6A and section 95A so far as relating to that paragraph;&quot;. — [Mr Ford (The Minister of Justice).]

No 18: In schedule 1, page 87, line 8, after &quot;preliminary inquiry&quot; insert &quot;or a preliminary investigation&quot;. — [Mr Ford (The Minister of Justice).]

No 19: After schedule 6 insert



&quot;SCHEDULE 6A


 


DOMESTIC VIOLENCE PROTECTION NOTICES AND ORDERS


 


Power to issue a domestic violence protection notice


 


1.—(1) A police officer not below the rank of superintendent (“the authorising officer”) may issue a domestic violence protection notice (“a DVPN”) under this paragraph.


 


(2) A DVPN may be issued to a person (“P”) aged 18 years or over if the authorising officer has reasonable grounds for believing that?—


 


(a) P has been violent towards, or has threatened violence towards, an associated person, and


 


(b) the issue of the DVPN is necessary to protect that person from violence or a threat of violence by P.


 


(3) Before issuing a DVPN, the authorising officer must, in particular, consider?—


 


(a) the welfare of any person under the age of 18 whose interests the officer considers relevant to the issuing of the DVPN (whether or not that person is an associated person),


 


(b) the opinion of the person for whose protection the DVPN would be issued as to the issuing of the DVPN,


 


(c) any representations made by P as to the issuing of the DVPN, and


 


(d) in the case of provision included by virtue of sub-paragraph (8), the opinion of any other associated person who lives in the premises to which the provision would relate.


 


(4) The authorising officer must take reasonable steps to discover the opinions mentioned in sub-paragraph (3).


 


(5) But the authorising officer may issue a DVPN in circumstances where the person for whose protection it is issued does not consent to the issuing of the DVPN.


 


(6) A DVPN must contain provision to prohibit P from molesting the person for whose protection it is issued.


 


(7) Provision required to be included by virtue of sub-paragraph (6) may be expressed so as to refer to molestation in general, to particular acts of molestation, or to both.


 


(8) If P lives in premises which are also lived in by a person for whose protection the DVPN is issued, the DVPN may also contain provision?—


 


(a) to prohibit P from evicting or excluding from the premises the person for whose protection the DVPN is issued,


 


(b) to prohibit P from entering the premises,


 


(c) to require P to leave the premises, or


 


(d) to prohibit P from coming within such distance of the premises as may be specified in the DVPN.


 


Contents and service of a domestic violence protection notice


 


2.—(1) A DVPN must state?—


 


(a) the grounds on which it has been issued,


 


(b) that a constable may arrest P without warrant if the constable has reasonable grounds for believing that P is in breach of the DVPN,


 


(c) that an application for a domestic violence protection order (“a DVPO”) under paragraph 4 will be heard within 48 hours of the time of service of the DVPN and a notice of the hearing will be given to P,


 


(d) that the DVPN continues in effect until that application has been determined, and


 


(e) the provision that a court of summary jurisdiction may include in a DVPO.


 


(2) A DVPN must be in writing and must be served on P personally by a constable.


 


(3) On serving P with a DVPN, the constable must ask P for an address for the purposes of being given the notice of the hearing of the application for the DVPO.


 


Breach of a domestic violence protection notice


 


3.—(1) A person arrested by virtue of paragraph 2(1)(b) for a breach of a DVPN must be held in custody and brought before the court of summary jurisdiction which will hear the application for the DVPO under paragraph 4?—


 


(a) before the end of the period of 24 hours beginning with the time of the arrest, or


 


(b) if earlier, at the hearing of that application.


 


(2) If the person is brought before the court by virtue of sub-paragraph (1)(a), the court may remand the person.


 


(3) If the court adjourns the hearing of the application by virtue of paragraph 4(7), the court may remand the person.


 


Application for a domestic violence protection order


 


4.—(1) If a DVPN has been issued, a constable must apply for a DVPO.


 


(2) The application must be made by complaint to a court of summary jurisdiction.


 


(3) The application must be heard by the court not later than 48 hours after the DVPN was served pursuant to paragraph 2(2).


 


(4) A notice of the hearing of the application must be given to P.


 


(5) The notice is deemed given if it has been left at the address given by P under paragraph 2(3).


 


(6) But if the notice has not been given because no address was given by P under paragraph 2(3), the court may hear the application for the DVPO if the court is satisfied that the constable applying for the DVPO has made reasonable efforts to give P the notice.


 


(7) The court may adjourn the hearing of the application.


 


(8) If the court adjourns the hearing, the DVPN continues in effect until the application has been determined.


 


(9) On the hearing of an application for a DVPO, Article 118 of the Magistrates’ Courts (Northern Ireland) Order 1981 (summons to witness and warrant for arrest) does not apply in relation to a person for whose protection the DVPO would be made, except where the person has given oral or written evidence at the hearing.


 


Conditions for and contents of a DVPO


 


5.—(1) The court may make a DVPO if two conditions are met.


 


(2) The first condition is that the court is satisfied on the balance of probabilities that P has been violent towards, or has threatened violence towards, an associated person.


 


(3) The second condition is that the court thinks that making the DVPO is necessary to protect that person from violence or a threat of violence by P.


 


(4) Before making a DVPO, the court must, in particular, consider?—


 


(a) the welfare of any person under the age of 18 whose interests the court considers relevant to the making of the DVPO (whether or not that person is an associated person), and


 


(b) any opinion of which the court is made aware?—


 


(i) of the person for whose protection the DVPO would be made, and


 


(ii) in the case of provision included by virtue of sub-paragraph (8), of any other associated person who lives in the premises to which the provision would relate.


 


(5) But the court may make a DVPO in circumstances where the person for whose protection it is made does not consent to the making of the DVPO.


 


(6) A DVPO must contain provision to prohibit P from molesting the person for whose protection it is made.


 


(7) Provision required to be included by virtue of sub-paragraph (6) may be expressed so as to refer to molestation in general, to particular acts of molestation, or to both.


 


(8) If P lives in premises which are also lived in by a person for whose protection the DVPO is made, the DVPO may also contain provision?—


 


(a) to prohibit P from evicting or excluding from the premises the person for whose protection the DVPO is made,


 


(b) to prohibit P from entering the premises,


 


(c) to require P to leave the premises, or


 


(d) to prohibit P from coming within such distance of the premises as may be specified in the DVPO.


 


(9) A DVPO must state that a constable may arrest P without warrant if the constable has reasonable grounds for believing that P is in breach of the DVPO.


 


(10) A DVPO may be in force for?—


 


(a) no fewer than 14 days beginning with the day on which it is made, and


 


(b) no more than 28 days beginning with that day.


 


(11) A DVPO must state the period for which it is to be in force.


 


Breach of a DVPO


 


6.—(1) A person arrested by virtue of paragraph 5(9) for a breach of a DVPO must be held in custody and brought before a court of summary jurisdiction within the period of 24 hours beginning with the time of the arrest.


 


(2) If the court finds that the person has breached the DVPO, the court may?—


 


(a) order the person to pay a sum not exceeding £5000; or


 


(b) commit the person to prison for a fixed period not exceeding 2 months.


 


(3) Payment of any sum ordered to be paid under sub-paragraph (2)(a) is enforceable in the same manner as payment of a sum adjudged to be paid by a conviction.


 


(4) If the matter is not disposed of when the person is brought before the court under sub-paragraph (1), the court may remand the person.


 


(5) In section 44(5) of the Judicature (Northern Ireland) Act 1978 (appeals relating to punishment of contempt and other defaults) in paragraph (c) after “Article 112 of the Magistrates’ Courts (Northern Ireland) Order 1981” insert “or paragraph 6 of Schedule 6A to the Justice Act (Northern Ireland) 2015”.


 


Further provision about remand


 


7.—(1) This paragraph applies for the purposes of the remand of a person by a court under paragraph 3(2) or (3) or 6(4).


 


(2) The court may remand the person?—


 


(a) in custody, that is to say, commit the person to custody to be brought before the court at the end of the period of remand; or


 


(b) on bail, that is to say, take from the person a recognizance conditioned for subsequent appearance before the court.


 


(3) If the person is remanded in custody, the court may give its consent to the person being remanded on bail in accordance with sub-paragraph (2)(b) in which event the court must fix the amount of the recognizance with a view to its being taken subsequently.


 


(4) Subject to sub-paragraphs (8), (11) and (12), the period for which a person is remanded in custody must not exceed?—


 


(a) in case where the person is before the court and consents, 28 days;


 


(b) in any other case, 8 days.


 


(5) The period for which a person is remanded on bail must not exceed 28 days unless both the person and the relevant police officer consent.


 


(6) For the purposes of sub-paragraph (5) the relevant police officer is?—


 


(a) in the case of a remand prior to the hearing of an application for a DVPO, the authorising officer;


 


(b) in any other case, the constable who applied for the DVPO.


 


(7) In the case of a person over the age of 21, the power to remand in custody includes power, on an application made by a police officer not below the rank of inspector, to commit that person to?—


 


(a) detention at a police station; or


 


(b) the custody (otherwise than at a police station) of a constable.


 


(8) The period for which a person is remanded under sub-paragraph (7) must not exceed 3 days.


 


(9) A person shall not be committed to detention at a police station under sub-paragraph (7)(a) unless there is a need for the person to be so detained for the purposes of inquiries into a criminal offence; and, if a person is committed to such detention?—


 


(a) the person shall, as soon as that need ceases, be brought back before the court;


 


(b) the person shall be treated as a person in police detention to whom the duties under Article 40 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (responsibilities in relation to persons detained) relate; and


 


(c) the detention of the person shall be subject to periodic review at the times set out in Article 41 of that Order (review of police detention).


 


(10) A person shall not be committed to the custody (otherwise than at a police station) of a constable under sub-paragraph (7)(b) unless there is a need for the person to be kept in such custody for the purposes of inquiries into a criminal offence; and if a person is committed to such custody, the person shall, as soon as that need ceases, be brought back before the court.


 


(11) If the court has reason to suspect that a medical report will be required, the power to remand a person may be exercised for the purpose of enabling a medical examination to take place and a report to be made; and if the person is remanded in custody for that purpose, the remand may not be for more than 21 days.


 


(12) If the court has reason to suspect that the person is suffering from mental illness or severe mental impairment within the meaning of the Mental Health (Northern Ireland) Order 1986, the court has the same power to remand a person under Article 42 of that Order (remand to hospital for medical report) as it has under that Article in the case of an accused person (within the meaning of that Article).


 


(13) The court may order a person to be brought before it at any time before the expiration of the period for which the person has been remanded.


 


(14) The court may, when remanding the person on bail, require the person to comply, before release on bail or later, with such requirements as appear to the court to be necessary to secure that the person does not interfere with persons likely to give evidence at the hearing or otherwise obstruct the course of justice.


 


Guidance


 


8.—(1) The Department may issue guidance relating to the exercise by a constable of functions under this Schedule.


 


(2) A constable must have regard to any guidance issued under this paragraph when exercising a function to which the guidance relates.


 


(3) Before issuing guidance under this paragraph, the Department must consult?—


 


(a) the Chief Constable,


 


(b) the Policing Board, and


 


(c) such other persons as the Department thinks fit.


 


Interpretation


 


9.—(1) In this Schedule?—


 


“associated person” means a person who is associated with P within the meaning of Article 3 of the Family Homes and Domestic Violence (Northern Ireland) Order 1998;


 


“the authorising officer” has the meaning given by paragraph 1(1);


 


“a DVPN” has the meaning given by paragraph 1(1);


 


“a DVPO” has the meaning given by paragraph 2(1)(c);


 


“P” has the meaning given by paragraph 1(2).


 


(2) In calculating?—


 


(a) when the period of 24 hours mentioned in paragraph 3(1)(a) or 6(1) ends, or


 


(b) when the period of 48 hours mentioned in paragraph 4(3) ends,


 


Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in Northern Ireland under the Banking and Financial Dealings Act 1971 are to be disregarded.


 


(3) In calculating the length of any period of remand, the period is to be taken as beginning on the day after the person is remanded.


 


Pilot schemes


 


10.—(1) The Department may by order provide for any provision of paragraphs 1 to 9 to come into operation for a period of time to be specified in or under the order for the purpose of assessing the effectiveness of the provision.


 


(2) Such an order may make different provision for different areas.


 


(3) More than one order may be made under this paragraph.


 


(4) Provision included in an order under this paragraph does not affect the provision that may be included in relation to paragraphs 1 to 9 in an order under section 103.&quot;. — [Mr Ford (The Minister of Justice).]

No 19: After schedule 6 insert



&quot;SCHEDULE 6A


 


DOMESTIC VIOLENCE PROTECTION NOTICES AND ORDERS


 


Power to issue a domestic violence protection notice


 


1.—(1) A police officer not below the rank of superintendent (“the authorising officer”) may issue a domestic violence protection notice (“a DVPN”) under this paragraph.


 


(2) A DVPN may be issued to a person (“P”) aged 18 years or over if the authorising officer has reasonable grounds for believing that?—


 


(a) P has been violent towards, or has threatened violence towards, an associated person, and


 


(b) the issue of the DVPN is necessary to protect that person from violence or a threat of violence by P.


 


(3) Before issuing a DVPN, the authorising officer must, in particular, consider?—


 


(a) the welfare of any person under the age of 18 whose interests the officer considers relevant to the issuing of the DVPN (whether or not that person is an associated person),


 


(b) the opinion of the person for whose protection the DVPN would be issued as to the issuing of the DVPN,


 


(c) any representations made by P as to the issuing of the DVPN, and


 


(d) in the case of provision included by virtue of sub-paragraph (8), the opinion of any other associated person who lives in the premises to which the provision would relate.


 


(4) The authorising officer must take reasonable steps to discover the opinions mentioned in sub-paragraph (3).


 


(5) But the authorising officer may issue a DVPN in circumstances where the person for whose protection it is issued does not consent to the issuing of the DVPN.


 


(6) A DVPN must contain provision to prohibit P from molesting the person for whose protection it is issued.


 


(7) Provision required to be included by virtue of sub-paragraph (6) may be expressed so as to refer to molestation in general, to particular acts of molestation, or to both.


 


(8) If P lives in premises which are also lived in by a person for whose protection the DVPN is issued, the DVPN may also contain provision?—


 


(a) to prohibit P from evicting or excluding from the premises the person for whose protection the DVPN is issued,


 


(b) to prohibit P from entering the premises,


 


(c) to require P to leave the premises, or


 


(d) to prohibit P from coming within such distance of the premises as may be specified in the DVPN.


 


Contents and service of a domestic violence protection notice


 


2.—(1) A DVPN must state?—


 


(a) the grounds on which it has been issued,


 


(b) that a constable may arrest P without warrant if the constable has reasonable grounds for believing that P is in breach of the DVPN,


 


(c) that an application for a domestic violence protection order (“a DVPO”) under paragraph 4 will be heard within 48 hours of the time of service of the DVPN and a notice of the hearing will be given to P,


 


(d) that the DVPN continues in effect until that application has been determined, and


 


(e) the provision that a court of summary jurisdiction may include in a DVPO.


 


(2) A DVPN must be in writing and must be served on P personally by a constable.


 


(3) On serving P with a DVPN, the constable must ask P for an address for the purposes of being given the notice of the hearing of the application for the DVPO.


 


Breach of a domestic violence protection notice


 


3.—(1) A person arrested by virtue of paragraph 2(1)(b) for a breach of a DVPN must be held in custody and brought before the court of summary jurisdiction which will hear the application for the DVPO under paragraph 4?—


 


(a) before the end of the period of 24 hours beginning with the time of the arrest, or


 


(b) if earlier, at the hearing of that application.


 


(2) If the person is brought before the court by virtue of sub-paragraph (1)(a), the court may remand the person.


 


(3) If the court adjourns the hearing of the application by virtue of paragraph 4(7), the court may remand the person.


 


Application for a domestic violence protection order


 


4.—(1) If a DVPN has been issued, a constable must apply for a DVPO.


 


(2) The application must be made by complaint to a court of summary jurisdiction.


 


(3) The application must be heard by the court not later than 48 hours after the DVPN was served pursuant to paragraph 2(2).


 


(4) A notice of the hearing of the application must be given to P.


 


(5) The notice is deemed given if it has been left at the address given by P under paragraph 2(3).


 


(6) But if the notice has not been given because no address was given by P under paragraph 2(3), the court may hear the application for the DVPO if the court is satisfied that the constable applying for the DVPO has made reasonable efforts to give P the notice.


 


(7) The court may adjourn the hearing of the application.


 


(8) If the court adjourns the hearing, the DVPN continues in effect until the application has been determined.


 


(9) On the hearing of an application for a DVPO, Article 118 of the Magistrates’ Courts (Northern Ireland) Order 1981 (summons to witness and warrant for arrest) does not apply in relation to a person for whose protection the DVPO would be made, except where the person has given oral or written evidence at the hearing.


 


Conditions for and contents of a DVPO


 


5.—(1) The court may make a DVPO if two conditions are met.


 


(2) The first condition is that the court is satisfied on the balance of probabilities that P has been violent towards, or has threatened violence towards, an associated person.


 


(3) The second condition is that the court thinks that making the DVPO is necessary to protect that person from violence or a threat of violence by P.


 


(4) Before making a DVPO, the court must, in particular, consider?—


 


(a) the welfare of any person under the age of 18 whose interests the court considers relevant to the making of the DVPO (whether or not that person is an associated person), and


 


(b) any opinion of which the court is made aware?—


 


(i) of the person for whose protection the DVPO would be made, and


 


(ii) in the case of provision included by virtue of sub-paragraph (8), of any other associated person who lives in the premises to which the provision would relate.


 


(5) But the court may make a DVPO in circumstances where the person for whose protection it is made does not consent to the making of the DVPO.


 


(6) A DVPO must contain provision to prohibit P from molesting the person for whose protection it is made.


 


(7) Provision required to be included by virtue of sub-paragraph (6) may be expressed so as to refer to molestation in general, to particular acts of molestation, or to both.


 


(8) If P lives in premises which are also lived in by a person for whose protection the DVPO is made, the DVPO may also contain provision?—


 


(a) to prohibit P from evicting or excluding from the premises the person for whose protection the DVPO is made,


 


(b) to prohibit P from entering the premises,


 


(c) to require P to leave the premises, or


 


(d) to prohibit P from coming within such distance of the premises as may be specified in the DVPO.


 


(9) A DVPO must state that a constable may arrest P without warrant if the constable has reasonable grounds for believing that P is in breach of the DVPO.


 


(10) A DVPO may be in force for?—


 


(a) no fewer than 14 days beginning with the day on which it is made, and


 


(b) no more than 28 days beginning with that day.


 


(11) A DVPO must state the period for which it is to be in force.


 


Breach of a DVPO


 


6.—(1) A person arrested by virtue of paragraph 5(9) for a breach of a DVPO must be held in custody and brought before a court of summary jurisdiction within the period of 24 hours beginning with the time of the arrest.


 


(2) If the court finds that the person has breached the DVPO, the court may?—


 


(a) order the person to pay a sum not exceeding £5000; or


 


(b) commit the person to prison for a fixed period not exceeding 2 months.


 


(3) Payment of any sum ordered to be paid under sub-paragraph (2)(a) is enforceable in the same manner as payment of a sum adjudged to be paid by a conviction.


 


(4) If the matter is not disposed of when the person is brought before the court under sub-paragraph (1), the court may remand the person.


 


(5) In section 44(5) of the Judicature (Northern Ireland) Act 1978 (appeals relating to punishment of contempt and other defaults) in paragraph (c) after “Article 112 of the Magistrates’ Courts (Northern Ireland) Order 1981” insert “or paragraph 6 of Schedule 6A to the Justice Act (Northern Ireland) 2015”.


 


Further provision about remand


 


7.—(1) This paragraph applies for the purposes of the remand of a person by a court under paragraph 3(2) or (3) or 6(4).


 


(2) The court may remand the person?—


 


(a) in custody, that is to say, commit the person to custody to be brought before the court at the end of the period of remand; or


 


(b) on bail, that is to say, take from the person a recognizance conditioned for subsequent appearance before the court.


 


(3) If the person is remanded in custody, the court may give its consent to the person being remanded on bail in accordance with sub-paragraph (2)(b) in which event the court must fix the amount of the recognizance with a view to its being taken subsequently.


 


(4) Subject to sub-paragraphs (8), (11) and (12), the period for which a person is remanded in custody must not exceed?—


 


(a) in case where the person is before the court and consents, 28 days;


 


(b) in any other case, 8 days.


 


(5) The period for which a person is remanded on bail must not exceed 28 days unless both the person and the relevant police officer consent.


 


(6) For the purposes of sub-paragraph (5) the relevant police officer is?—


 


(a) in the case of a remand prior to the hearing of an application for a DVPO, the authorising officer;


 


(b) in any other case, the constable who applied for the DVPO.


 


(7) In the case of a person over the age of 21, the power to remand in custody includes power, on an application made by a police officer not below the rank of inspector, to commit that person to?—


 


(a) detention at a police station; or


 


(b) the custody (otherwise than at a police station) of a constable.


 


(8) The period for which a person is remanded under sub-paragraph (7) must not exceed 3 days.


 


(9) A person shall not be committed to detention at a police station under sub-paragraph (7)(a) unless there is a need for the person to be so detained for the purposes of inquiries into a criminal offence; and, if a person is committed to such detention?—


 


(a) the person shall, as soon as that need ceases, be brought back before the court;


 


(b) the person shall be treated as a person in police detention to whom the duties under Article 40 of the Police and Criminal Evidence (Northern Ireland) Order 1989 (responsibilities in relation to persons detained) relate; and


 


(c) the detention of the person shall be subject to periodic review at the times set out in Article 41 of that Order (review of police detention).


 


(10) A person shall not be committed to the custody (otherwise than at a police station) of a constable under sub-paragraph (7)(b) unless there is a need for the person to be kept in such custody for the purposes of inquiries into a criminal offence; and if a person is committed to such custody, the person shall, as soon as that need ceases, be brought back before the court.


 


(11) If the court has reason to suspect that a medical report will be required, the power to remand a person may be exercised for the purpose of enabling a medical examination to take place and a report to be made; and if the person is remanded in custody for that purpose, the remand may not be for more than 21 days.


 


(12) If the court has reason to suspect that the person is suffering from mental illness or severe mental impairment within the meaning of the Mental Health (Northern Ireland) Order 1986, the court has the same power to remand a person under Article 42 of that Order (remand to hospital for medical report) as it has under that Article in the case of an accused person (within the meaning of that Article).


 


(13) The court may order a person to be brought before it at any time before the expiration of the period for which the person has been remanded.


 


(14) The court may, when remanding the person on bail, require the person to comply, before release on bail or later, with such requirements as appear to the court to be necessary to secure that the person does not interfere with persons likely to give evidence at the hearing or otherwise obstruct the course of justice.


 


Guidance


 


8.—(1) The Department may issue guidance relating to the exercise by a constable of functions under this Schedule.


 


(2) A constable must have regard to any guidance issued under this paragraph when exercising a function to which the guidance relates.


 


(3) Before issuing guidance under this paragraph, the Department must consult?—


 


(a) the Chief Constable,


 


(b) the Policing Board, and


 


(c) such other persons as the Department thinks fit.


 


Interpretation


 


9.—(1) In this Schedule?—


 


“associated person” means a person who is associated with P within the meaning of Article 3 of the Family Homes and Domestic Violence (Northern Ireland) Order 1998;


 


“the authorising officer” has the meaning given by paragraph 1(1);


 


“a DVPN” has the meaning given by paragraph 1(1);


 


“a DVPO” has the meaning given by paragraph 2(1)(c);


 


“P” has the meaning given by paragraph 1(2).


 


(2) In calculating?—


 


(a) when the period of 24 hours mentioned in paragraph 3(1)(a) or 6(1) ends, or


 


(b) when the period of 48 hours mentioned in paragraph 4(3) ends,


 


Christmas Day, Good Friday, any Sunday and any day which is a bank holiday in Northern Ireland under the Banking and Financial Dealings Act 1971 are to be disregarded.


 


(3) In calculating the length of any period of remand, the period is to be taken as beginning on the day after the person is remanded.


 


Pilot schemes


 


10.—(1) The Department may by order provide for any provision of paragraphs 1 to 9 to come into operation for a period of time to be specified in or under the order for the purpose of assessing the effectiveness of the provision.


 


(2) Such an order may make different provision for different areas.


 


(3) More than one order may be made under this paragraph.


 


(4) Provision included in an order under this paragraph does not affect the provision that may be included in relation to paragraphs 1 to 9 in an order under section 103.&quot;. — [Mr Ford (The Minister of Justice).]

No 22: In schedule 8, page 140, line 12, leave out from beginning to end of line 13 on page 142 and insert



&quot;
























The Magistrates’ Courts (Northern Ireland) Order 1981 (NI 26)


 



Article 31.



 



In Article 32?—


 



 



(a) in paragraph (1)(b) the words “a copy of that notice together with” and the words “a reasonable time before the day fixed for the conduct of the preliminary inquiry”;


 



 


 



(b) paragraph (3).



The Justice and Security (Northern Ireland) Act 2007 (c. 6)



Section 3.


 



 


&quot; — [Mr Ford (The Minister of Justice).]

Photo of David Ford David Ford Alliance

As you indicated, Mr Deputy Speaker, amendment No 1 stands in my name. As you also indicated, there are a considerable number of amendments in the group covering a number of issues, all of which are designed to deal with matters raised at Consideration Stage. I will outline the different areas in turn and trust that I have the support of the House for them.

Amendment No 1 creates a narrower, more focused alternative arrangement for supplementary, incidental or consequential provisions following the removal of clause 86 from the Bill at Consideration Stage. Amendment No 14 is a direct consequential amendment flowing from amendment No 1. I am sure that I do not need to set out again how and why I felt the need to include clause 86 in the original Bill, but the issue now is how we move on from here. I remain of the view that the Bill is complex and we need to mitigate the risk that we have missed something crucial to the policy intentions. Clause 86 has, however, gone, and the question is how to mitigate the risk that remains.

(Mr Deputy Speaker [Mr Beggs] in the Chair)

I am grateful to the Office of the Legislative Counsel (OLC) and to the Committee for their efforts and support in bringing forward this alternative approach, including the fact that the Committee held a special meeting to consider the issue last week. The amendment that I propose contains two specific changes from clause 86 as it was. First, it is limited to Part 1. I want to recognise that that was a suggestion made by Paul Frew. He asked about the possibility of doing that, and the amendment recognises that suggestion. Part 1, which relates to the single jurisdiction provisions, is where the risk is most likely to arise. Secondly, the amendment is limited in scope compared with clause 86 in order to take account of the Committee's concerns. With the Committee's support, I was pleased to table the amendment before the House today. I hope that it addresses its concerns while allowing me some much-needed flexibility to give effect to the provisions in Part 1.

Let me now consider the amendments relating to committal reform, which are amendment Nos 2, 3, 18 and 22. They make specific amendments relating to preliminary investigations and mixed committals and consequential amendments to schedules 1 and 8. In the context of addressing my amendments, I will also address amendment No 4 in the name of Mr McCartney and colleagues.

On the amendments made at Consideration Stage to clauses 7 and 8, I have to say again that I was surprised that they were supported by the House, given the Committee's previous consideration. I have given thought to the impact, and I remain concerned about the situation that we are now in. I am grateful again for the consideration given by OLC to the issue over the past few days. I believe that the clauses in the Bill as it now stands require significant amendment. That is, in part, because they take no account of how the revised process will work in practice.

Clauses 7 and 8, as amended at Consideration Stage, are oversimplistic and simply impose a new statement of law on top of an existing body of law without any attempt to reconcile the two. The conventional approach to amending an existing body of law is to do so by way of textual amendment to the parent legislation. That enables a complete, coherent and consistent statement of the law to be found in one place. More fundamentally, the clauses ignore the position of victims. I spoke about that at Consideration Stage, and other Members, most notably Mr McCartney and Mr Elliott, also questioned the position of vulnerable victims and witnesses. Indeed, I briefed the Justice Committee last week on the work needed to resolve the issue.

My amendments are intended to operate within the framework of the interests of justice test. That was the will of the Assembly at Consideration Stage. I am seeking to amend the Magistrates’ Courts (Northern Ireland) Order 1981 to provide that a preliminary investigation will be held only in the interests of justice. All other cases will be dealt with by way of a preliminary inquiry. An accused may apply to the court for direction on whether a preliminary investigation is to be held or whether oral evidence at a preliminary inquiry is necessary in the interests of justice. Court rules will set out the application procedure. An application will have to set out the grounds on which the application is made. The rules will also set out the procedure to be followed in determining the application. The prosecution and the accused will be able to make representations to the court. The court, after considering the application and any representations made to it, may grant the application only if it is satisfied that that is necessary in the interests of justice. In reaching that decision, the court must give regard to the nature of the offence or offences charged and the interests of the persons likely to be witnesses. The amendments will help to protect the needs of vulnerable victims and witnesses, and I commend them to the House.

I will speak briefly to amendment No 4, which is in the name of Mr McCartney and those of his colleagues and proposes an alternative amendment to clause 8. I entirely understand the sentiment behind it and accept that it is a well-intentioned alternative to my proposals. I remind the House that we are in this territory only as result of the amendments that were made to the Department’s proposals at Consideration Stage, when the matter of committal was discussed. However, amendment No 4 does not achieve what the Members who tabled it want to achieve, and a number of issues would need to be addressed if it were to work properly. The amendment applies only to the giving of evidence on oath at mixed committals, not to preliminary investigations. It also includes the word "vulnerable", which is problematic. Although "vulnerable" has an ordinary meaning, it would need to be specifically defined in the context of this legislation. Also, the amendment is limited to victims of rape and sexual assault. I have to ask why the line has been drawn there. What about other crimes, such as domestic violence, other crimes of personal violence and other matters that would put individuals at specific risk and specific fear?

It is not clear what account is to be taken of the use of special measures under the Criminal Evidence (Northern Ireland) Order 1999 in relation to the giving of evidence by witnesses, which allow a witness to give evidence and prevents certain witnesses being cross-examined in person by the defence in sexual offence cases and cases involving children. I also believe that "Violent sexual assault" would also have to be defined. Thought would have to be given to that and care taken that the definition did not inadvertently impact on any existing legislation that deals with sexual assault. In addition, as I explained to the House, clauses 7 and 8 need to be significantly amended to ensure that the provisions can work within the existing framework of the Magistrates’ Courts (Northern Ireland) Order 1981. The Member's amendment would not resolve that problem; indeed, it might compound it.

My amendments provide that, when the defence makes an application that oral evidence is needed in the interests of justice, the court must consider the matter with regard to the nature of the offence and the interests of the witnesses likely to give evidence. That will apply to every offence and every potential witness, and it provides greater protection than is proposed in the amendment tabled by Mr McCartney. Therefore, I cannot support amendment No 4. I believe that my amendment is a better way of resolving the issue and covering a wider range of crimes.

Amendment No 5 will make some minor amendments to clause 48, which was inserted into the Bill at Consideration Stage on the proposal of Mr Frew and Lord Morrow. It allows for arrangements to disclose conviction information in respect of those who pose a risk of harm to children. I emphasise that there is no change of substance to the objective of the provision. The amendments are largely of a technical nature and are designed to allow for the provision to sit more easily within the current legislative framework for multi-agency risk assessment and management, as set out in Part 3 of the Criminal Justice (Northern Ireland) Order 2008.

The first amendments to the clause will insert a number of definitions into article 49 of the 2008 Order to provide legislative clarity. They include the following definitions of "child" as a person under 18; "conviction" as including both findings of the court and police cautions; and "relevant previous conviction" as a conviction for either a sexual or violent offence as specified in the guidance to agencies that was issued by the Department under article 50 of the 2008 Order. The remainder of clause 48, which amends article 50 of the Order, has been reworded to take account of the definitions and to remove reference to the information being:

"in the possession of the agencies".

That phrase was considered unnecessary, given that you cannot disclose information that you do not possess. It was also potentially misleading by suggesting that all agencies specified in article 49 have information to disclose. I understand that the Members who tabled the clause at Consideration Stage are content with those minor changes — for the sake of Hansard, I am looking across the Chamber at Mr Frew, who is nodding at me, so I will take that as assent. I believe that, when my officials briefed the Justice Committee on this last week, the amendments that I was proposing were acceptable to the Committee, and I hope that the House can agree today to make them.

Clause 90, as amended at Consideration Stage, creates a general duty to progress criminal proceedings in an effort to avoid delay. Mr Jim Allister spoke to the clause at Consideration Stage and suggested that juries could be captured by the current wording of the clause and potentially feel under pressure:

"to reach a just outcome as swiftly as possible". — [Official Report, Vol 105, No 3, p10, col 2].

As I indicated to the House at Consideration Stage, that was not the policy intent of the clause — that was most certainly not the intention. I also stated that the duty is appropriately framed to ensure that reaching a just outcome is patently the primary consideration. However, in the interests of legislative clarity, I have tabled amendment No 8 to make it absolutely and abundantly clear that only the court, the prosecution and the defence will be subject to the general duty. There will be no application of the general duty to juries. I trust that that reassures Mr Allister and any Members who had sympathy with the points that he put forward.

I turn to amendment No 9, which introduces new clause 95A and new schedule 6A to allow for the introduction of domestic violence protection notices and domestic violence protection orders in Northern Ireland. Amendment Nos 13 and 16 are consequential to amendment No 9. Members will be aware that, following an amendment tabled but not moved by Mrs Dolores Kelly at Consideration Stage, I committed to tabling alternative amendments at this stage. I am pleased now to speak to the detail of the powers that I have put forward. The provisions give the police the power to issue a domestic violence protection notice and to apply to the courts for a domestic violence protection order for the purposes of protecting a victim of domestic violence where it has been assessed that they may be at risk of immediate harm and danger. It also provides for the courts to grant a domestic violence protection order for a maximum period of 28 days, which will provide immediate emergency protection for the victim, allowing them protected space to explore the options available to them and to make informed decisions about their safety.

The amendment ensures proportionality, consistency and appropriate use of the processes. The police, when considering the need to issue a domestic violence protection notice, will use their professional judgement to determine whether the measures are required to protect a victim. Similarly, the court will assess the evidence provided to it to ensure that it is satisfied on the balance of probabilities that the perpetrator has been violent towards or has threatened violence towards an associated person. Additionally, the court must believe that making the domestic violence protection order is necessary to protect that person from violence or threat of violence by the perpetrator.

We have discussed domestic violence in the Chamber on many occasions. We all acknowledge that it is a dreadful crime and that, when it happens, victims need to be fully protected from any potential further violence. The legislation offers victims — women and men — the immediate protection that they need in circumstances where they are often very traumatised, vulnerable and need assurance that, for a time, the perpetrator will not be able to enter their home and violently abuse them again. At present, non-molestation orders and occupation orders offer protection for victims of domestic violence. However, it is up to the victim to apply for them. In the circumstances following domestic violence, a victim may be emotionally affected and, as a result, may not be capable of seeking the protection that is needed. Therefore, the measures under the proposed legislation will clearly demonstrate to the victim that the statutory agencies are initiating action on their behalf in order to protect them. I firmly believe that the measures will enhance our suite of public protection arrangements for victims.

Members will be aware that amendments tabled by the SDLP at Consideration Stage contained elements of a domestic violence disclosure scheme, but they were also not moved.

This aspect was not moved by agreement, on the understanding that I would consult on the introduction of a domestic violence disclosure scheme for Northern Ireland as soon as is practicable. Since Consideration Stage, the Justice Committee has received briefings from my officials and the PSNI on the matter. Legislation is not required to operate a domestic violence disclosure scheme, and the consultation will allow me to consider all relevant aspects of introducing such a scheme, including human rights issues. I am pleased to inform the House that my amendments and my approach of consulting on a domestic violence disclosure scheme have the support of Mrs Kelly and her colleagues. She is likewise nodding, and I trust that the House will also vote in favour of these changes.

Finally, I turn to the last amendment in this group, amendment No 10, which I have brought forward at the request of the Minister of Health, Social Services and Public Safety to correct an issue with the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015, otherwise known as Lord Morrow's Act. In seeking to implement the provisions of the Act for an independent guardian service, DHSSPS officials identified that, as section 21(4)(a) of the Act was drafted, only those charities registered under section 16 of the Charities Act (Northern Ireland) 2008 would be eligible to apply to provide those independent guardian services. I understood, from working with Lord Morrow to bring forward the Act, that he specifically sought to have the guardian service provided by a charity, principally to maintain a level of independence from the statutory sector. The definition of a charity is therefore very important.

To date, only 1,695 charities are currently registered under section 16 of the relevant 2008 Act. Most are not health and social care charities, and registration will not be completed for some time, potentially for another couple of years. A specific problem emerges in that some charities, which operate across all three jurisdictions of the United Kingdom, are not required to register in every part of the UK. Those already registered in England, for example, will not be required to register separately in Northern Ireland; but the wording of section 21(4)(a) of the Human Trafficking Act means that those charities that are registered elsewhere but which operate in Northern Ireland cannot provide guardian services here. I cannot believe that that was the intent of the House when the Human Trafficking Act was passed, and I certainly do not believe that it was the desire of Lord Morrow or of the Department.

To fix the problem, therefore, section 21(4)(a) of the Human Trafficking Act 2015 needs to be amended, and amendment No 10 does so by redefining the meaning of a registered charity to include charities that are registered in England and Wales and in Scotland. Clearly, some of the major children's charities are registered technically only in England, but operate here as well. As a result, the provision of an independent guardian service will be open to all relevant charities registered anywhere in the United Kingdom or on the deemed list in Northern Ireland. I am pleased to commend this amendment to the House with the support of Lord Morrow to ensure that his Act operates successfully.

That covers all the amendments in group 1, with the exception of Mr McCartney's amendment, which, as I have highlighted, I believe is not as effective as my amendment to the same clause. I commend the amendments to the House.

Photo of Alastair Ross Alastair Ross DUP 5:00, 16 June 2015

First, I will address amendment No 1. The whole House will be relieved to hear that I do not intend to rehearse the arguments that we had when we decided to remove what used to be called clause 86 from the Bill. Suffice it to say that the Committee’s rationale for its removal was accepted and supported by the entire House. I am sure that most Members will feel that it was a useful exercise of the Assembly's ability to question and scrutinise the power of the Executive.

Following Consideration Stage, the Minister requested a meeting with myself and the Deputy Chairman of the Committee to discuss the matter, at which he outlined his belief that some mechanism was required to deal with Part 1 of the Bill and mitigate the risk that losing clause 86 has created for the Department. Part 1, which deals with single jurisdiction for County Courts and Magistrates’ Courts, covers a large number of pieces of legislation, some of which date back to the 1840s and, as the Minister has outlined, is the part of the Bill that the Department is most concerned may need minor amendments later on if relevant pieces of primary legislation are identified that have not been covered in the Bill.

The Minister stated that the intention was for an amendment to provide narrowly defined powers linked only to Part 1, and we agreed that if the Minister provided further information on the proposed amendment the Committee would meet to consider it. The Minister subsequently provided the rationale for and the text of the proposed amendment, and he attended the Committee on 9 June with his officials to discuss it with members.

The wording of amendment No 1 is significantly limited in scope and effect compared to the original clause 86. It also only relates to Part 1 of the Bill. On that basis, the Committee agreed that it is content with the amendment. When we were considering clause 86, members recognised that Part 1 was the area of the Bill that might require some minor amendments once the legislation was passed, given the volume of other legislation that is affected by the introduction of the single jurisdiction. Indeed, when officials attended to discuss clause 86, the Committee suggested that the Department should narrow its scope to cover only those parts of the Bill that it believed were most necessary. That is now the approach that seems to have been adopted by the Minister and the Department.

While I am sure that the Minister will not agree with me, I believe that the scrutiny the Committee brought to clause 86 and the debate that we initiated has been useful and, hopefully, will serve to ensure that all Departments fully consider the scope of the powers that they require and the justification for their inclusion in primary legislation rather than including provisions that provide very wide-ranging powers. I have no doubt that other Assembly Committees will pay much more attention to what are often termed "technical provisions" in Bills in the future.

Moving on to amendment Nos 2 and 3, which have been brought forward by the Minister, and amendment No 4, which has been brought forward by Mr McCartney, these aim to provide additional protection to vulnerable victims and witnesses and avoid the necessity of them having to give evidence twice, following the Assembly's decision to retain of PIs. When the Committee considered the original proposals by the Department to abolish preliminary investigations and mixed committals, it noted that, while the proposals aimed to streamline the procedure for moving business from the Magistrates’ Court to the Crown Court and were expected to result in some improvement in efficiency, the Department’s stated primary driver was to reduce the impact on vulnerable victims and witnesses. From its inquiry into the criminal justice services available to victims and witnesses, the Committee is fully aware of the concerns raised and the difficulties experienced by victims and witnesses in relation to having to give evidence twice. Members are therefore supportive of the principle of those amendments. Given that they are mutually exclusive, I assume that agreement can be reached about which will be moved at the end of the debate.

Finally, turning briefly to amendment No 5, which relates to child protection disclosures and the amendments that introduce domestic violence protection orders and notices, the Committee recently received from departmental officials and the Police Service of Northern Ireland a very useful briefing on the purpose and intent of both schemes. Members explored how both schemes would operate in practice and play a part in protection. We were also reassured that account has been taken of lessons learnt from the operation of such schemes in other jurisdictions.

Amendment No 10 was not discussed at the Committee, although I am quite sure that Lord Morrow will say that it will make his great Bill even better by ensuring that charities that are registered in Great Britain will still be able to provide the services required. Perhaps it would be useful if the Minister would provide some clarity over whether that means that internationally based charities would also be able to provide similar services or whether it would be limited to those within the United Kingdom.

I will make no further comment and support the amendments in the group.

Photo of Raymond McCartney Raymond McCartney Sinn Féin 5:15, 16 June 2015

Go raibh maith agat, a LeasCheann Comhairle. I just want to speak to a number of the amendments. The Chair, on behalf of the Committee, provided the commentary on most of them. When the Minister was speaking about amendment No 1, I think there was an acceptance. The Chair laid out clearly, on behalf of the Committee, the reason why we had our reservations about clause 86. The Minister described the amendment as narrower and more focused, and I think we would agree with that. It allows us to say — I think it was Paul Frew who brought it up at the Committee — that Part 1 was perhaps the area that needed the latitude and flexibility, given the large number of Acts that the Bill would affect, stretching right back to 1840, as the Chair said. We will support amendment No 1.

In relation to amendment Nos 2, 3 and 4, I will just speak briefly on amendment No 4, which is tabled in my name, Sean Lynch's and Chris Hazzard's. The Minister described it as well-intentioned and then started to point out the deficiencies in it, which I think we would accept. We were trying to demonstrate with that amendment the Minister's concern, which he was right to mention, that sometimes when you are defining something, each party or person might have a concept of it but that when you are legislating, you have to have a clear definition. The term "interests of justice" was not clear. Taking note of concerns that were raised to the Committee during the inquiry on victims and witnesses, we were trying to be very clear about the idea of vulnerable witnesses unnecessarily having to give evidence twice, particularly in sexual violence or rape trials and, indeed, perhaps in other trials. I think that the amendments as laid out by the Minister provide the protection of what we believe is the necessary part of the PE, PI and mixed committals. We think that they serve a useful purpose and that they are now protected. However, protections are also built in to ensure that you do not have that two-stage approach to some witnesses. We are content to support amendment Nos 2 and 3. Obviously, we accept that, if they are carried, our amendment would fall. That is fine.

Some of the other amendments have been described as "technical" and, certainly, they add to the work from Consideration Stage and, indeed, to another Bill. An amendment was tabled to perhaps tighten up the intent of that tabled by Paul Frew at Consideration Stage. I think that it adds to the intention, which was well laid out and well discussed at Consideration Stage.

Similarly, with regard to the amendment dealing with the Human Trafficking Act, as it is now, given Lord Morrow's intent, I think that he is happy, as the idea of the charities was missing. This amendment will now, if you like, add to that Bill. We are certainly more than content to support that. Similarly, Dolores Kelly articulated what she was trying to do with amendments that she tabled at Consideration Stage. She accepted that the Minister and the Department could do more work on that. She obviously feels that the amendments that have been tabled today fulfil her intentions. We will therefore support them as well.

Photo of Roy Beggs Roy Beggs UUP

Order. I wish to advise the House of a development. I understand that a valid petition of concern has been received in relation to amendment No 7, which is in the second group of amendments. The debate shall therefore continue on group 1 and will then go on to group 2 in this Further Consideration Stage debate on the Justice Bill. Decisions will be taken up to and including the Question on amendment No 6. The vote on the Question on amendment No 7, if moved, will not take place today and will be on a cross-community basis. The scheduling of the rest of this Further Consideration Stage would then have to be notified to Members in due course.

Photo of Alban Maginness Alban Maginness Social Democratic and Labour Party

I suppose there is not an awful lot more to be added on this Bill. I congratulate the Minister on his acceptance of the substance of amendment No 1 and for bringing it to the Assembly. I think it is a good example of how a Committee can influence and reshape legislation and do so in a very constructive way with the Minister. I think that he quite properly acted on the advice and concerns that were expressed by the Committee. I think that congratulations are due to him for reacting in that constructive and very positive way.

Incidentally, it may also inform other pieces of legislation, because other Ministers will, of course, be bringing similar provisions in other Bills. This Bill could well act as a template for future legislation.

I move on to amendment Nos 2 and 3. The Minister has accepted the will of the House. I know that he does not agree with the position adopted by the House in relation to committal proceedings, but he has, quite properly, accepted that position and moved significant amendments, as he described them, in amendment Nos 2 and 3.

He quite rightly said that there was a requirement for textual amendments. I accept that, but I hope that in putting forward those amendments the Department and Minister are not attempting in some way to blunt the effect of the decision of the Assembly in relation to committal proceedings. The important issue is the interests of justice test. That is the abiding rule, or test, for the use of preliminary investigations. I hope that the amendments that the Minister brought forward will not undermine that in any way. I ask the Minister to reassure me on that at the conclusion of this part of the debate.

I accept that there is a necessity that the Magistrates' Courts rules be amended, consistent with the position that the Assembly has adopted. I accept that a written application and a representation should be made to the court where necessary and that a case is established, essentially, that this is in the interests of justice.

However, I would hate to think that in some way the intent of those amendments is to create a situation in which it would be more difficult for a defendant to bring an application in relation to the commencement of a preliminary investigation. I just seek reassurance from the Minister on that. That is a proper position for me, as an MLA and a legislator, to adopt.

I also ask the Minister to clarify the position in relation to amendment No 2, which introduces article 29A(5)(b), which states:

"the interests of the persons likely to be witnesses at a preliminary investigation.”."

I presume that the intent of that provision within the amendment is to provide protection for vulnerable witnesses. I ask the Minister to clarify that and indicate to the House that he has considered that that provides the protection that witnesses would require in circumstances where they may be faced with a preliminary investigation. I seek an assurance from the Minister on that.

The other aspect that I would like the Minister to clarify relates to amendment No 2 and clause 7(6), which states:

"Where a person is charged with an extra-territorial offence".

Does that mean that the law would not provide, in any circumstances, that a person charged with such an offence would be permitted access to a preliminary investigation? Will the Minister clarify that position in his summing up of this group of amendments?

I take it that the intent in amendment No 3, which will amend clause 8, is to address the situation in relation to mixed committals. I want reassurance in relation to that.

Amendment No 4 was tabled by Mr McCartney, Mr Lynch and Mr Hazzard. I am very sympathetic to that amendment, but I am not certain that it addresses the issue of vulnerable witnesses, in totality anyway. It certainly would seem to address the situation of a rape victim or the victim of violent sexual assault, but there is a problem with the definition of "violent sexual assault" and what it actually means. That might be a deficiency in that amendment.

I and my party would be very sympathetic to that amendment, but I am not certain that it provides the necessary cover or protection that the Committee wanted to be afforded to vulnerable witnesses. I know that Mr McCartney cannot answer those questions, but I make those points by way of constructive criticism. Having sympathy is insufficient; the Member obviously seeks support. However, given the fact that amendment Nos 2 and 3 address the protection of witnesses, in those circumstances, it may well be that amendment No 4 is not required in any event, even though, as I said, I am very sympathetic to it.

My colleague Dolores Kelly will address the other amendments in this group, particularly those that deal with domestic violence and protection notices and orders. We are obviously grateful to the Department and the Minister for tabling those amendments and reflecting the propositions and the needs of vulnerable people in those circumstances and delivering on the assurances that the Minister gave to the House and my party, the SDLP, on the last occasion. I end my contribution there.

Photo of Stewart Dickson Stewart Dickson Alliance 5:30, 16 June 2015

Like others, I welcome the opportunity to speak on the Further Consideration Stage of the Justice Bill as it moves through the Assembly. The reform of our justice system, which has developed, some might say haphazardly, over many centuries is, of course, not a straightforward task. We need to commend the Minister for the work that he and his Department have done in maintaining a very steady and clear pace of reform.

Most of the amendments in group 1 are departmental in origin with the exception of amendment No 4, which I will come back to later. It was mentioned previously that this is a complex piece of legislation and, therefore, it would create a considerable and undue difficulty at the implementation stage were we to tie the Department's hands completely with regard to making alterations to previous statute.

As we know, the Assembly chose to remove clause 86 from the Bill at Consideration Stage because of concerns that it gave too much power to the Department. I do not share those concerns, but that is where we are. It was clear that these changes in statute would have to come to the House anyway. However, to ensure that the Department still has sufficient flexibility, particularly in the area of single jurisdiction, the Minister has brought forward amendment No 1, which I hope has the broad agreement of the Committee for Justice and the House.

Respecting the concerns of the Committee and the Assembly, the Department has clearly restricted the scope of its powers in that area. In fact, only Part 1 would be affected by a power to make supplementary, incidental or consequential provisions and, of course, that would be with the consent of the Assembly. The Department and the Committee, of which I am a member, deserve credit for the work that has been done in reaching agreement on these contentious issues. Going forward, this means that the Department will be provided with at least some remedy in the unlikely event that something has been overlooked in the primary legislative process.

Moving to the proposed amendments with regard to preliminary investigations (PIs) and mixed committals, I am still convinced that preliminary investigations are, in fact, superfluous to a modern justice system. That has been clearly proven by their abolition in many common law jurisdictions, notably England and Wales. Evidence, in fact, suggests that these exercises are harmful for victims of crime, especially the most vulnerable people. For those recounting events it is traumatic and, further, it results in delays to our justice system in holding people to account. Nonetheless, by a majority, the Assembly has decided to retain preliminary investigations; where this is in the interests of justice it will, in itself, be a difficult term to define. The Minister's amendment will refine and support the retention of PIs in certain circumstances, including the crucial element of how it will operate in practice. Safeguards and a robust application procedure to ensure that PIs are only used in exceptional circumstances rather than continuing as the norm must be in place to protect the considered needs of vulnerable witnesses and victims.

I now turn to amendment No 4, which was put forward by Mr McCartney on behalf of Sinn Féin. The proposed amendment is clearly a compassionate attempt to ameliorate the impact of the retention of preliminary investigations and mixed committals on vulnerable witnesses and victims of crime. However, it is worth noting that the proposed amendment, as it is attached to clause 8, would only apply to mixed committals, meaning that preliminary investigations would not be affected by the amendment.

Furthermore, the amendment appears to exempt vulnerable witnesses from giving evidence under oath but sets a higher bar for victims, as they must be a victim of rape or sexual assault for the exemption to exist. I am quite sure that that was not the intention of the proposer; I am sure that he would consider victims of non-sexual violent crime such as intimidation, for example, as potentially vulnerable victims who would and should be generally exempt from recounting their experiences numerous times in front of a court. It is for that reason that I am not in a position to support amendment No 4.

Personally, I feel that the proper abolition of preliminary investigations and mixed committals is the best that we can do for victims of crime. Indeed, many of those victims have told us that directly.

The Assembly has decided against that, and I respect that decision. Nonetheless, to ensure that a robust system is in place, I call on all to support the Minister's amendments today.

Further proposed amendments are departmental. Again, they refine much of what was added at Consideration Stage. I commend the Department and MLAs, particularly Mr Frew and Mrs Kelly, for the work that has been done to bring about those developments, particularly on child protection disclosures and domestic violence protection orders. Those measures will further ensure that the reform of our justice system helps to deliver for everyday people and, crucially, that we have a robust system with preventative measures in place that are accessible to the public and help to keep people safe. That is what this is about.

I intend to support the amendments in group 1 from the Department. They refine and support amendments made at Consideration Stage. Centrally, they get on with the work of reforming our justice system to deliver one that is fit to meet the needs of all our citizens.

Photo of Tom Elliott Tom Elliott UUP

My apologies for being out for part of the Minister's opening remarks. I heard quite a bit of them, but I had to leave for some of them.

I will deal with amendment Nos 2 and 3 first, as well as amendment No 4 from Sinn Féin. Amendment No 4 is positive, in the sense that it is trying to deal with vulnerable witnesses. I just wonder whether its intention is for the provision to be used solely for those named in the amendment or whether it can be used on a much wider basis.

I am slightly concerned about amendment No 2. Mr Allister brought forward an amendment at Consideration Stage that received support from the House and was made. I am concerned that amendment No 2 would slightly weaken Mr Allister's amendment. I said at Consideration Stage that his amendment was a halfway house between what we had then and what the Minister was bringing forward at that stage. It appears now that the Minister is creating another halfway house between Mr Allister's amendment from Consideration Stage and what he was proposing in the original Bill. It is weakening the clause to some extent, but, by and large, it is still getting us to a similar position.

Amendment No 5, which concerns child protection, and amendment Nos 9 and 19 are follow-ups to amendments from Consideration Stage. Mr Frew's amendment at Consideration Stage was on child protection. I therefore consider this to be a tidying-up process. To be fair, amendment Nos 9 and 19, which concern domestic violence, originally came from the SDLP. The Minister has worked with that party, which I am pleased about, to bring forward positive and comprehensive amendments. I view that as only being good for the Bill and for society in Northern Ireland. Hopefully, the amendments will help people who are caught up in domestic violence. There are a lot of positive aspects to them, but I would like to hear the Minister, in his summing-up, talk about amendment Nos 2 and 3. I view amendment No 3 as being slightly more wide-ranging than amendment No 4 from Sinn Féin. Obviously, I have support for both, but I do not see the two being able to sit together. I am reasonably content with both amendments, but I do want to hear from the Minister when he is summing up.

I am also interested to hear what Mr Allister's thoughts are. I think that he was described as a traditional barrister or lawyer during the previous debate. Mr Maginness was lumped in there as well. I am interested to hear what the traditional lawyer's voice has to say about amendment No 2. Is it weakening his original idea or complementing it?

Photo of Paul Frew Paul Frew DUP 5:45, 16 June 2015

With amendment No 1, I can remember very clearly that, in the House that night, the Justice Minister was very aggrieved and annoyed at the petulance of the Justice Committee in having done this. I would hate for him to have the powers of Henry VIII because I do not know what would have happened to individual members of the Justice Committee. However, it goes to show that the Justice Committee takes its role in the scrutiny of legislation very seriously. There was a principle at stake that we managed to drive home. That led to the Minister taking it in good grace and then amending —

Photo of Paul Frew Paul Frew DUP

Sorry, Minister? OK. I thought that you wanted me to give way.

It is good that the Minister, the officials and the Justice Committee can work together in a good spirit to bring forward amendments that satisfy all of us and the House.

There has been much debate on amendment Nos 2 and 3 from the Justice Minister and the amendment from Sinn Féin's Raymond McCartney, which speaks to that. We understand the spirit of and the intention behind the amendment. We understand that the Minister's amendments would go much further and be tighter. We certainly welcome the spirit of and intention behind those amendments.

That leaves only amendment No 5, which is close and dear to my heart. I pay tribute to Lord Morrow — he has just stepped out of the Chamber — for his work on the issue to date. Before I even took the matter on, he had asked questions about it to build up a knowledge base to take it forward. I also commend the DOJ officials for working with me on getting an agreement and a form of words and the Minister for amending it here today to make it tighter and a much better fit in the Northern Ireland context. I also commend the staff in the Bill Office for their help throughout the process. They are a very able and worthy band of people who work quietly behind the scenes and do tremendous work for us all. We had a session on the subject with DOJ officials in Committee. They were able to reassure members on the procedural aspects and how it will work in practice, which is very important.

I commend the NSPCC for the work that it did with me. The NSPCC is part of PPANI. It is only well and good that the PPANI organisations are the administrators and managers. They are the experts and the people who manage and monitor. They are best placed to make decisions on disclosure. Of course, this was adding to that disclosure scheme. We already have disclosure in Northern Ireland whereby, if the PPANI organisations deem there to be a risk or threat to a person, they can disclose, so allowing a two-way process. Anyone who wishes to apply for disclosure will be able to do so. It is all based on and geared around the protection of a child. Members recognised that and saw that this could go some way to enhancing that protection. I pay tribute to the PPANI organisations. They are the people who do this daily to keep us all safe and reduce the risk to all of us, in particular our children. We must be cognisant of children. We must make sure that children, given that they are vulnerable, are placed in the safest place possible at any given stage of their lives.

I also pay tribute to Dolores Kelly and the SDLP for the amendments that they had brought forward but have withdrawn in the knowledge that they will come before us again.

I certainly will have no hesitation in supporting them. I recognise the spirit in which they were tabled and understand exactly what they would have done. They were also intended to enhance the protection of vulnerable people, which must be commended to the House.

I will end there, but, again, I thank everyone for supporting my amendment at Consideration Stage and, hopefully, supporting this amendment at Further Consideration Stage so that it can be enacted in law.

Photo of Dolores Kelly Dolores Kelly Social Democratic and Labour Party

I am delighted to be able to speak to the amendments to clause 19. As others have said, the Minister has delivered on his commitment to our party by tabling amendments on the domestic violence protection notices (DVPNs) and the domestic violence protection orders (DVPOs), which are, as other Members said, designed better to protect victims of domestic violence. I thank all Members for their support and comments. As Mr Frew said, the Minister acknowledged the disclosure scheme by giving a commitment for wider consultation later in the summer or in the autumn. I look forward to that. As a party, we will certainly respond to that consultation, and I urge all Members to have their say.

What has been particularly exciting about the Justice Bill is the first group of amendments because they are primarily designed to afford better protection to victims of crime and, indeed, witnesses of crime. I commend Members who tabled amendments with that spirit and intent, today and at Consideration Stage.

As an Assembly and Executive, we will need to work in a much more collaborative way on resourcing better counselling services and better investment in refuges etc for victims of domestic violence, but that is, perhaps, a debate for another day.

Having spoken to some of the organisations and victims of domestic violence, I know that they are heartened by the way in which parties have approached this most sensitive of matters and by the party support for the principles behind these amendments.

I will not delay the House as I know that there is, potentially, a long evening ahead of us. I place on record my thanks to my policy staff, colleagues, the staff in the Bill Office — primarily Aoibhinn, once again — and the Minister. I ask the Minister to convey my thanks to his colleagues in the Department of Justice for working so closely with us in ensuring that the amendments meet the principle and the spirit that I had hoped they would contain when I first tabled them. I thank you all for that.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

I apologise at the outset that I was not here during the Minister's speech. I had to attend another event within the precincts.

I want to speak primarily to amendment Nos 2 and 3. It is patently clear to me that the Minister has sought to dilute, as close to the limit that he can, the amendment on PIs and mixed committals that I tabled and the House accepted. The Minister and his Department, having concealed the actual wording from the Committee, and not delivering it, I understand, until after the deadline for amendments had passed, likewise concealed it from me in that sense. I would have thought it not unreasonable, in the period between Consideration Stage and the tabling of amendments, for the Minister's officials to have at least liaised with me and advised me of the intended road of travel. However, it is quite clear that they did not wish to do that and that they wished to spring upon the House, after the closure of Further Consideration Stage amendments, their amendment as the sole amendment that the House effectively could consider. I think that that is a message that speaks to the departmental intent in itself.

Coming to the content of the amendment, I say that it dilutes — it certainly does — but it does more than that. It seeks to raise hurdles and hoops to make it quite prohibitive to attain that which the House approved: the retention of a PI or a mixed committal if that was in the interests of justice. It does that in a number of ways. It does it first by the very wide ambit of requiring:

"an application to set out grounds", imposing a layer of bureaucracy that really is not necessary for these things, and to prescribe that the grounds — which this House has not seen and will not see at a point where it can change them — must:

"contain such other information as may be prescribed".

That is the import of paragraph 3(a). So, the Department is holding to itself the capacity in the magistrates' rules to set the bar as high as it can in order, in the rather telltale words of Mr Dickson of the Alliance Party, to ensure that a PI is only ever held in exceptional circumstances. The will of this House was that a PI would be held when it was necessary in the interests of justice. The purport of this amendment is to make sure that it can only ever be held in exceptional circumstances. And so the hurdles and hoops required to be passed through are made as wide as they can.

Then we come to some amazing language in paragraph 4:

"The court, after considering the application and any representations made to the court, may direct the holding of a preliminary investigation if (and only if) the court is satisfied that a preliminary investigation is required in the interests of justice."

This is meant to be a piece of legislation; it is not a speech. The language "if (and only if)" is totally foreign to a legislative format. It is the tautology and emphasis that you would expect in a speech, but it is not the language of legislation. This legislation would have the same legal effect if it said, "may direct the holding of a preliminary investigation if the court is satisfied that a PI is required in the interests of justice", but to use language like "if (and only if)", what does that mean? What is the relevance of that to a clause in legislation?

"If (and only if)" might be relevant, as I say, to a speech; it is certainly not relevant to legislation. It is a very poor reflection, I think, on whoever drafted it, to think for one minute that that was appropriate to put in legislation. Of course, what it is trying to do is set the barrier as high as it can to intimidate a magistrate with language like "if (and only if)" then can you allow a preliminary investigation.

It goes on, in paragraph 5, to say:

"In determining an application under paragraph (2) the court shall in particular have regard to— (a) the nature of the offence ... ; (b) the interests of the persons likely to be witnesses"

That is in the context in which the principle is that you have a PI if it is in the interests of justice.

Now we move to language that the court shall "in particular" have regard to these other matters. The import seems to be, "Let us deploy this as a mechanism to trump the interests of justice by emphasising that the court shall 'in particular' have regard to these matters". Where was the problem in saying, "the court shall have regard to" the nature of the offences or the interests of the persons likely to be witnesses? Again, there is this unnecessary gilding of the lily — "if (and only if)" and "in particular" — to drive home the point to a magistrate, "Well dare you give a preliminary investigation". Never mind that the proper test is in the interests of justice: this is the new test that the Minister wants to set.

The Minister has gone too far in his amendment in that regard, and he has gone too far in seeking to defy the considered wishes of the House at Consideration Stage. As I said at Consideration Stage, I have no difficulty with the amendment being tidied up, with it being amplified, or with making things clearer than in the few short clauses that were already there. I have no difficulty with that, but I take considerable exception to the concerted effort to dilute and change in this radical fashion that which the House had approved. The same applies in amendment No 3, because it too resorts to "if (and only if)" and "in particular" to do the same thing.

Turning to amendment No 4, tabled by Sinn Féin. I understand the thrust of it, but my difficulty with amendment No 4 is with the last clause where it talks about:

"a victim of rape or a violent sexual assault".

The problem there is that during the trial process — indeed, in the pre-trial process — you cannot assume, and therefore cannot talk about, "a victim". No crime has yet been proven in the process. Therefore, I would have thought that the amendment should have talked about "a complainant" in a rape case, or "a complainant" in a violent sexual assault. Those are the people that could be covered by this. There are some legal difficulties in shaping the amendment by expressly defining individuals as victims at a point before there has been a conviction of anyone. I understand what is intended, but it rather puts the cart before the horse. The language needs to refer to complainants.

Amendment No 18 purports to amend schedule 1 to change the fact that it says:

"A magistrates' court has jurisdiction ... to conduct a preliminary inquiry into any indictable offence", to say that a magistrates' court has jurisdiction to conduct a preliminary inquiry "or a preliminary investigation".

That is fine, but I am surprised that it does not go on to say, "or a mixed committal". We have three categories of disposal in the return for trial process. We have the preliminary investigation, a preliminary inquiry or a mixed committal. That is the infrastructure of the Magistrates' Courts Order and all things attendant upon it. I am surprised that, when it came to amending the schedule, it did not say, "PI, PE or mixed committal". I really think it needed to say that, but I will be interested to hear from the Minister why it does not. Maybe there is some reason for it that escapes me for now.

Photo of David Ford David Ford Alliance 6:00, 16 June 2015

Until the last contribution, I was beginning to think that there was going to be universal praise for everybody in sight. Before I criticise some aspects of what Members said, perhaps I should start off by praising the Committee and thanking its staff, my officials, legislative counsel, the Bill Office and the Members who have contributed and made specific comments. To disrupt that happy mood and given that there was such general agreement until the last contribution, I will go through some of the points that Members raised.

I have to disagree slightly with Mr Ross in the spirit of maintaining the fact that we do not entirely agree on the abolition of clause 86. He graciously acknowledged, as did others, the work that has been done to deal with that, but I think that there are real issues around legislation. The fact that similar provisions to those in the original clause 86 have been included in a significant number of Bills that have been before the House and have been mostly allowed through without any question suggests that there are reasons why that is done. They are not reasons of laziness. The fact that we now have 34 pages of legislation being amended in schedule 1 alone is an indication of the detail that has to be gone into.

It is also slightly ironic that, if we had not had the Bill before the House at this stage, it would have been necessary to amend the provisions of the human trafficking Act in respect of charities through a procedure in that Act that was passed by the House without any dissent or disagreement. That would have been necessary to make the provisions on charities, had we not had this Bill before the House at the appropriate time. There were reasons why it was done. It was not done out of laziness, and we need to be careful that we do not throw out proverbial babies with proverbial bathwater in that respect.

As I said, I recognise that we have had a constructive discussion, including direct engagement with the Committee on how we deal with that, with particular reference to Part 1 and the vast amount of legislation going back to 1842 that had to be amended because of the single jurisdiction issue. We have seen a lot of positive work done on that, so, whilst I will happily agree with the Chair that we perhaps need to look at the necessity of provisions like amendment No 1 and the previous clause 86, I do not think that we should automatically assume that we can do without it in all circumstances. I also thank the Chair for his recognition of the positive work that is being done on disclosure issues relating to adults and children, including the briefing that my officials and the police gave to the Committee last week. I think that it shows progress in that respect.

Mr Ross also asked about international charities and their potential role. The amendment on the specification of charities makes it clear that we are talking about charities that are registered under the laws of England and Wales, Scotland or Northern Ireland. I am not quite sure whether there are international charities operating in any part of the UK that are not registered in any part of the UK, but, as the law stands and as the amendment stands, they would not be permitted to carry out functions under the human trafficking legislation unless they are international charities that are registered in one or other of the UK jurisdictions.

Mr McCartney made similar points as vice-Chair — as he frequently does in backing up the Chair, especially when there is some modest criticism going on of the Minister — around clause 86, so I shall not repeat them. I liked his reference to his amendment around committals being "well intentioned but ill defined" and the grace with which he accepted that possibly my amendment was equally well intentioned but slightly better defined. It is an indication that we can do constructive work with many people in the House across a variety of issues. I trust that that has been recognised and that we are able to deal with the issue in a better way.

Alban Maginness again got in the point about amendment No 1 and congratulated the Minister for accepting the will of the House. I mouthed "as usual" across the Chamber to Paul Frew but did not make a formal intervention because I am well aware of the role of the Committee, which, I believe, still stands in the 1998 Act as being to advise and assist the Minister. Even if its advice is not always requested and its assistance is not always forthcoming, the general principle applies between the Justice Committee, departmental officials and, I trust, the Minister that there is still a fairly cooperative arrangement given the difficult issues we have to deal with. Even if we all have our tongue slightly in our cheek, I welcome the fact that it was a genuine comment from Mr Maginness about the work that was being done.

Mr Maginness hoped — his fellow member of "Traditional Lawyer's Voice" went a little further later on — that the intentions of the amendment were not to blunt the will of the House. That was absolutely not the intention of the amendments. However, a number of Members pointed out issues around the exact impact of the interests of justice on victims. Indeed, I could embarrass him by quoting what the vice-Chair of the Committee, Raymond McCartney, said at Consideration Stage:

"What we are looking to see ... is ... it being up to someone to convince the magistrate that it was in the interests of justice for" a witness

"to be called, rather than the reverse." [Official Report, Vol 105, No 3, p16, col 1].

That is an indication not of backpedalling on the concept of the interests of justice but of ensuring that, in taking account of the interests of justice, we take account of the interests of those who may be required to give evidence, particularly vulnerable victims and witnesses who might be required to give evidence twice if there were a preliminary investigation but who do not need to do so in the interests of justice. By the fact that we balance the nature of the charge and the interests of victims and witnesses, I believe that this is the right balance between the two, not in an attempt to blunt — I think I have a fairly clear record of accepting the will of the House, including, frequently, when I disagree with it slightly — but to ensure that we put matters into practical sense to ensure that we move things forward as to how things can go ahead. I think that we have shown that the amendment, which was very largely encouraged by a number of Members of the House who recognised the difficulties that there were, would be able to deal with this in a way that is realistic, proportionate and practical. I trust that this will show that we can move forward around this area in a way that protects the most vulnerable.

Mr Maginness asked specifically about the provisions for extraterritorial cases. It is my understanding that, at this stage, the defendant does not have the right to object to a preliminary inquiry in those cases and this is merely a replication because of slight changes in the wording of the already extant provision; it is not any change in it. He also asked about whether the references in clause 8 are to a mixed committal. They are, in fact, references to a mixed committal on the basis that they are matters where some people are required to give evidence at what is a preliminary inquiry. That is a mixed committal in practical terms, so it covers the particular issues raised there.

Mr Dickson, of course, joined in the usual roll call of those praising the Minister. I am grateful to him, and it would be slightly worrying if I did not have one person sitting behind me who was positive and constructive. He made the interesting point that preliminary investigations had been abolished elsewhere in other common-law jurisdictions. He highlighted England and Wales, and it is also the case that they have been abolished entirely in the Republic of Ireland. We are not seeking to abolish; we are seeking to ensure that they are used where appropriate in the interests of justice, and the interests of justice include the needs of victims.

So there are positive changes within that. We established that we have got that right by looking at the balance of the first round of speakers.

Mr Elliott referred, in the context of the committal proceedings, to having thought that Jim Allister's previous amendments were a kind of halfway house and that, to some extent, I was dragging matters halfway back again. I am sorry but I do not recognise that as being the position. Indeed, I know that there are those who are even better acquainted with the courts than me or, perhaps, Mr Maginness or Mr Elliott who believe that, as I said at Consideration Stage, the practical effects of the amendments put forward by Mr Allister would be virtually no change.

I think that the wish of the House to deal with the needs of victims has been fully covered by these amendments, and the comments around the House have largely reflected that. It is not a matter of taking a halfway house and pulling it back. The amendments tabled and passed at Consideration Stage would have meant virtually no difference in practice. In accordance with the remarks of many Members around the House, it is about the need to ensure that those vulnerable people who might be required to give evidence were suitably protected.

Photo of Tom Elliott Tom Elliott UUP 6:15, 16 June 2015

I thank the Minister for giving way. It is merely a query around amendment Nos 2 and 3. Is amendment No 2 necessary when you have amendment No 3, which deals with the evidence on oath, which is around vulnerable victims or vulnerable complainants, as Mr Allister highlighted? I just wonder whether it is necessary to have amendment No 2 if you have amendment No 3.

Photo of David Ford David Ford Alliance

The answer is straightforward and simple. We need amendment Nos 2 and 3 because we have clause 7 and clause 8 in the Bill, which deal with different issues and both are required to be covered in the amendments. They are similar issues but they are different issues. Therefore, we have to ensure that we get things covered carefully in that respect.

Mr Frew suggested that the Minister sounded a bit annoyed, and he somehow managed to equate me to Henry VIII, which is deeply worrying since, not that long ago, I was told that I was not as bad as Henry VIII. So, I will go with the remarks made about me at Consideration Stage and ignore Mr Frew in that respect. However, I think that it is an issue where we have shown that the Department and this Minister do not always agree with everything that comes from the Committee. I am entitled to disagree on the basis of information that I have before me, but I am also required to take account of the views of the House and to seek to work constructively with the Committee. So, if Mr Frew thought that I was about to behead him or throw him in the tower—

[Laughter.]

— I can assure him that I have no such powers, and, if I had them, I would not use them against him when he is working constructively with me. There are practical issues where, frankly, we disagree at times, even though a lot of what we do is positive, constructive and engaging.

Mr Frew then went on to praise everybody, including, most notably, Lord Morrow for his role as he worked on the disclosure issues. I will happily register a slight smile at Mr Frew's allegations about me and pass on and continue to be constructive. I noticed that he made one very significant point about the disclosure issues, which is that those are building on the existing PPANI arrangements. That is the key factor; not that we are upsetting the provisions that we have, not that we are dealing with major radical change, but that we are building on good work already being done by the police, probation and other agencies within PPANI and refining it that little bit to make it that little bit better. When we talk about promoting this, we should not suggest that there were not good arrangements in place previously, because I think that that would be doing a disservice to many dedicated public officials who have worked extremely hard over the years on the PPANI arrangements, and I appreciate the fact that Mr Frew is, again, nodding in response to something that I said, even if he laughs at Henry VIII references.

I am also grateful for the fact that Mrs Kelly commented that she believed that the Minister had delivered on his commitments in the Bill and in the forthcoming consultation. I think that recognises the practical reality of the cooperation. She and her colleagues bear a part of that practical cooperation for the work that they have done. It was also very significant when, in the penultimate contribution of the debate before my final winding-up speech, Mrs Kelly said that this group of amendments is about the protection of victims and witnesses. I believe that that is the case in every aspect of what we are looking at, whether we are looking at committal reform or the specific issues around disclosure. There is a lot in this that is about ensuring that people are better protected and better looked after across the justice system generally. We should be grateful for that, as we look at issues like domestic violence, protection orders and protection notices, as we look at disclosure and as we look at the way in which committal is run. It is about protecting victims and witnesses, which has been a key aim of the Committee since justice powers were devolved. On that issue, there has been good partnership, which is absolutely correct.

In the final contribution, Mr Allister ensured that all was not sweetness, light and harmony in the Chamber. First of all, he admitted that he was not here to hear my opening contribution. It is slightly difficult when you do not know exactly what was said in the opening remarks. When he said that it was clear to him that the Minister wished to dilute the will of the House, he contradicted every other Member of this House who has recognised that there has been good and close working partnership between Members of the House, particularly members of the Justice Committee, and the Department, whether it is the officials or the Minister. That was absolutely not the case. The case was to take account of what was said at Consideration Stage and ensure that we put things right.

I was accused of springing an amendment on the House by someone who produced an idea without any discussion with anybody that, on advice from legislative counsel, did not sit easily with existing legislation. He produced that without notice at Consideration Stage and then he accused me of, in my response, springing something on the House. It was absolutely clear, from the discussion at Consideration Stage and with the Committee afterwards, that there was a will to make amendments to the amendments that were provided on the issue of committal. If I am asked to choose between taking advice on what is proper drafting from legislative counsel or from Mr Allister, I will choose the advice of legislative counsel. If I am asked about what the effects will be on the court, I will take advice from those who have specific experience of how it runs.

What we have put forward in the first group of amendments is a reasonable and workable programme that will ensure that the changes that were made at Consideration Stage are made better, that we deal with the specific issue of the charity recognition to ensure that we can better protect the victims of human trafficking, and that everything else we are doing is designed to improve our overall commitment to improving services for victims and witnesses across the justice system. With the exception of Mr McCartney's gracious recognition of the difference between amendment No 3 and amendment No 4, I commend all the other amendments to the House.

Amendment No 1 agreed to.

Clause 7 (Preliminary investigations)

Amendment No 2 made:

In page 5, leave out lines 7 to 12 and insert

<BR/>

&quot;7.—(1) The Magistrates’ Courts (Northern Ireland) Order 1981 is amended as set out in subsections (2) to (5).


 


(2) After Article 29 insert?—


 


‘Committal proceedings for indictable offences


 


29A.—(1) Committal proceedings in a magistrates’ court in relation to an indictable offence are to be conducted?—


 


(a) in a case where the court directs under this Article that a preliminary investigation is to be held, by way of a preliminary investigation;


 


(b) in all other cases, by way of a preliminary inquiry.


 


(2) An accused may apply to the court for a direction that a preliminary investigation is to be held.


 


(3) Magistrates’ court rules may make provision in relation to an application under paragraph (2), including provision?—


 


(a) for an application to set out the grounds on which the application is made and contain such other information as may be prescribed;


 


(b) requiring an application to be made before a prescribed time;


 


(c) for the procedure to be followed in determining the application (including provision for representations to be made to the court by the prosecution or the accused).


 


(4) The court, after considering the application and any representations made to the court, may direct the holding of a preliminary investigation if (and only if) the court is satisfied that a preliminary investigation is required in the interests of justice.


 


(5) In determining an application under paragraph (2) the court shall in particular have regard to?—


 


(a) the nature of the offence or offences charged;


 


(b) the interests of the persons likely to be witnesses at a preliminary investigation.”.


 


(3) In Article 30 (preliminary investigation) for paragraph (1) substitute?—


 


“(1) This Article applies where committal proceedings are conducted by way of a preliminary investigation following a direction under Article 29A.”.


 


(4) Omit Article 31 (preliminary inquiry at request of prosecution).


 


(5) In Article 32 (preliminary inquiry: service of documents)?—


 


(a) in paragraph (1) for the words from the beginning to the end of sub-paragraph (a) substitute?—


 


“(1) A reasonable time before the day fixed for the conduct of committal proceedings, the prosecution shall?—


 


(a) provide the clerk of petty sessions with copies of the documents mentioned in sub-paragraph (b); and”;


 


(b) in paragraph (1)(b) omit?—


 


(i) the words “a copy of that notice together with”; and


 


(ii) the words “a reasonable time before the day fixed for the conduct of the preliminary inquiry”;


 


(c) omit paragraph (3).


 


(6) In section 4 of the Criminal Jurisdiction Act 1975 (trial of extra-territorial offences) for subsection (3) substitute?—


 


“(3) Where a person is charged with an extra-territorial offence so much of Article 29A of the Magistrates’ Courts (Northern Ireland) Order 1981 as affords to the accused a right to apply for a direction that a preliminary investigation is to be held shall not apply, and the procedure shall be by way of preliminary inquiry under that Order, and not by way of preliminary investigation.”.


 


(7) Section 3 of the Justice and Security (Northern Ireland) Act 2007 (committal proceedings for trial without a jury) is repealed.&quot;. — [Mr Ford (The Minister of Justice).]

Clause 8 (Mixed committals: evidence on oath at preliminary inquiry)

Amendment No 3 made:

In page 5, leave out lines 14 to 16 and insert



&quot;8.—(1) Article 34 of the Magistrates’ Courts (Northern Ireland) Order 1981 (giving of evidence on oath at preliminary inquiry) is amended as follows.


 


(2) After paragraph (1) insert?—


 


“(1A) The prosecution or the accused may apply to the court for leave to require a person to attend and give evidence on oath in accordance with paragraph (2).


 


(1B) Magistrates’ court rules may make provision in relation to an application under paragraph (1A), including provision?—


 


(a) for an application to set out the grounds on which the application is made and contain such other information as may be prescribed;


 


(b) requiring an application to be made before a prescribed time;


 


(c) for the procedure to be followed in determining the application (including provision for representations to be made to the court by the prosecution or the accused).


 


(1C) The court, after considering the application and any representations made to the court, may give leave to the applicant if (and only if) the court is satisfied that the interests of justice require it.


 


(1D) In determining an application under paragraph (1A) the court shall in particular have regard to?—


 


(a) the nature of the offence or offences charged;


 


(b) the interests of the persons likely to be required to give evidence at the preliminary inquiry.


 


(1E) Where leave is granted to one party under paragraph (1C), the court may (without any application) grant leave to the other party to require a person to attend and give evidence on oath in accordance with paragraph (2).”.


 


(3) In paragraph (2) for the words from the beginning to “may each require” substitute “The court (of its own motion), the prosecution (if granted leave under paragraph (1C) or (1E)) and the accused (if granted such leave) may each require”.&quot;. — [Mr Ford (The Minister of Justice).]

Photo of Roy Beggs Roy Beggs UUP

I will not call amendment No 4 as it is mutually exclusive with amendment No 3, which has been made.

Clause 48 (Child protection disclosures)

Amendment No 5 made:

In page 35, line 1, leave out subsections (2) to (4) and insert

<BR/>

&quot;(2) In Article 49 (1) (interpretation of Part 3)?—


 


(a) after the definition of “agencies” insert?—


 


“ “child” means a person under the age of 18;


 


“conviction” includes?—


 


(i) a conviction by or before a court outside Northern Ireland;


 


(ii) any finding (other than a finding linked with a finding of insanity) in any criminal proceedings that a person has committed an offence or done the act or made the omission charged;


 


(iii) a caution given to a person in respect of an offence which, at the time when the caution was given, the person has admitted;”;


 


(b) after the definition of “specified” insert?—


 


“ “relevant previous conviction”, in relation to a person, means a conviction for a sexual or violent offence by reason of which the person falls within a specified description of persons;”.


 


(3) In Article 50 (guidance to agencies on assessing and managing certain risks to the public) after paragraph (2) insert?—


 


“(2A) Guidance under this Article must contain provisions about arrangements for considering the disclosure, to any particular member of the public, of information concerning any relevant previous convictions of a person where it is necessary to protect a particular child or particular children from serious harm caused by that person; and the guidance may, in particular, contain provisions for the purpose of preventing a member of the public from disclosing that information to any other person.”.


 


(4) In Article 50(3) for “Paragraph (2) does” substitute “Paragraphs (2) and (2A) do”.&quot;. — [Mr Ford (The Minister of Justice).]

New Clause

Photo of Roy Beggs Roy Beggs UUP

We now come to the second group of amendments for debate. With amendment No 6, it will be convenient to debate amendment No 7. Members will also note that a valid petition of concern has been received this afternoon to amendment No 7, so the vote on that amendment will not be taken today and will require cross-community support.

We will continue with the Further Consideration Stage of the Justice Bill up to and including the Question on amendment No 6. I will then ask whether amendment No 7 is to be moved. If amendment No 7 is moved, we will be unable to proceed beyond that point today. If that is clear, we will proceed.

Photo of Alastair Ross Alastair Ross DUP

I beg to move amendment 6:

After clause 81 insert

<BR/>

&quot;Unpaid community service after early release


 


81A. In Article 19 of the Criminal Justice (Northern Ireland) Order 2008 after paragraph (1) insert —


 


“(1A) The Department may by regulations, having consulted the Probation Board, provide for a community service scheme, under which a person released under paragraph (1) may be required to engage in unpaid community service for the remaining period of the fixed term they would have served but for their early release.”.&quot;.

The following amendment stood on the Marshalled List:

No 7: After clause 89 insert



&quot;Sentencing for violent offences against older people


 


89A.—(1) This section applies where an individual is convicted of a violent offence and that individual was aged 18 or over when the offence was committed.


 


(2) The court shall impose a custodial sentence for a term of at least seven years (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.


 


(3) For the purposes of this section “violent offence” means an offence which leads or is intended or likely to lead to the death of a person aged 65 years or more or to physical injury to a person aged 65 years or more and includes an offence which is required to be charged as arson (whether or not it would otherwise fall within this definition).


 


(4) If there are exceptional circumstances which justify?—


 


(a) the imposition of a lesser sentence than that provided for under subsection (2), or


 


(b) the exercise by the court of its powers under section 18 of the Treatment of Offenders Act (Northern Ireland) 1968,


 


the court shall state in open court that it is of the opinion that such exceptional circumstances exist and the reasons for that opinion.


 


(5) Where subsection (4) applies the Chief Clerk shall record both the opinion of the court that exceptional circumstances exist and the reasons stated in open court which justify either the imposition of a lesser sentence or the exercise of its powers under section 18 of the Treatment of Offenders Act (Northern Ireland) 1968 as the case may be.


 


(6) For the purposes of subsection (2) “custodial sentence” shall not include a sentence in relation to which the court has made an order under section 18 of the Treatment of Offenders Act (Northern Ireland) 1968.


 


(7) For the avoidance of doubt, an offence falling within the definition of subsection (3) is a violent offence for the purposes of this section whether or not there is evidence that any individual who is convicted of such an offence knew or suspected that any person who dies or sustains physical injury, or any person who is intended or likely to die or sustain physical injury, is aged 65 years or more.


 


(8) In section 36 (reviews of sentencing) of the Criminal Justice Act 1988 in subsection (9)(d) after “2015” insert the words?—


 


“and a sentence required to be imposed by virtue of section 89A of the Justice Bill 2015”.&quot;. — [Mr Poots.]

Photo of Alastair Ross Alastair Ross DUP

I noticed that Mrs Kelly spoke about how excited she was about the first group of amendments. Given that she is not here now, perhaps she does not find the second group quite as exciting. Perhaps she will make an appearance later on.

I will speak to amendment No 6 in my name and make some general comments on amendment No 7, which stands in the name of my colleagues Mr Poots and Mr Givan. As the Committee will know, since taking up post, I have been keen to examine how we can take a more innovative approach to justice, making the criminal justice system in Northern Ireland quicker, fairer and more accessible and, ultimately, one that makes us safer by protecting the public and rehabilitating criminals.

As I have said many times before, just as the global downturn forced private-sector organisations to improve their levels of efficiency and look at doing things differently to ensure that outcomes improve, so too should government and the public sector use the environment of public-spending reductions as a springboard for reform and innovative approaches to policy. I am keen to look at how we can deliver better outcomes in justice through being more cost-effective, ensuring that rehabilitation reduces the chance of reoffending and ensuring that victims and the general public are content that offenders are punished appropriately for the crimes that they commit.

By way of background to my amendment, on 28 May, at my request, Department of Justice officials briefed the Committee on the commencement of articles 19, 20, 26 and 30 of the Criminal Justice (Northern Ireland) Order 2008. That followed similar briefings received by the Committee back in February and May of 2012, at which Committee members considered the consequences of commencing the named articles.

Article 19 provides the Department with a wide-ranging discretionary power to release prisoners early if it were so minded, without the need for any recourse to the Assembly or the Justice Committee. I think that it is prudent to establish that the bar is set very high for those prisoners who would meet the criteria and that any prisoner who is in any way a risk to society will not be eligible. That includes perpetrators of serious crimes such as violent or sexual offenders; those with terrorist convictions or who are in prison for an extended custodial sentence; a prisoner who is subject to a hospital order or a transfer direction under the Mental Health Order 1986; a prisoner who is liable for removal from the United Kingdom; or a prisoner who has been released on licence under the article and recalled subsequently during the currency of the sentence. However, if we are of the belief that prison serves the dual role of punishment and rehabilitation, we should recognise that, in limited circumstances, the Department may consider it appropriate to provide for a conditional early release of a prisoner. Whilst it is unlikely that the types of offences that we are envisaging under the scheme will have resulted in any direct victims as such, if the offender committed a crime in which there was an individual victim, that victim should be fully informed and, indeed, be part of the process.

Articles 26 and 30 of the order are commenced at the same time as article 19 and provide for individuals to be subject to a curfew and recall during the early release period. Although the current law allows for prisoners who are deemed to be low risk, with excellent behaviour while in prison, to apply for early release, the way in which the order is currently drafted means that, although attendance at AA or anger management meetings can be applied, the Prison Service, the Department of Justice or the Probation Board cannot, as part of the early release scheme, compel individuals to see out the remainder of their sentence in a community service scheme or unpaid work programme. Although I am personally open to the idea of looking at alternatives to custodial sentences for low-level first-time offenders, I also believe that, if individuals are sentenced to a particular length of time, they should serve out that period.

I therefore offer amendment No 6 to the House in the hope that it does two things. First, I hope that it will ensure that those who are sentenced to a period in which they lose their liberty see out that sentence but, secondly, that it will allow for the end of their sentence to be in the form of a community service, with a graduated return to normal life. That not only ensures that those successful in getting conditional early release must still pay back their debt to society in a more meaningful way but transitions them into normal life and work and, importantly, ensures that the taxpayer does not have to keep them in prison unnecessarily.

Conditional early release is not in itself a novel concept and is utilised in the rest of the United Kingdom and, indeed, in the Irish Republic. In fact, the model that I propose is similar to that operating in the Irish Republic. Officials here have already indicated that they and the Probation Board are keen to examine the possibility of introducing the scheme to Northern Ireland.

The Irish Republic's scheme came about following the report of the Thornton Hall project review group in July 2011. That report, amongst other things, noted the powers of the Irish Government to release a prisoner early to reintegrate that prisoner into society and suggested that, as a positive step, the Justice Minister should introduce a form of earned temporary release with a requirement for community service to prepare prisoners for release on completion of their sentences. The introduction of community service orders, therefore, required an offender to perform an activity in the community, such as unpaid work, which allows offenders to repay their debt to society and to pursue reform, rehabilitation or reparation in the community.

Evidence suggests that this is a successful programme that reduces reoffending rates and is a more cost-effective way to rehabilitate offenders. Whilst reducing the prison population should not be the primary motivation, there could be modest cost savings from the scheme. I appeal to the House to support amendment No 6 to ensure public confidence in the requirement for prisoners who are eligible for early release to see out their sentence in the form of community service and to help to transition low-risk offenders into the general population.

Photo of Tom Elliott Tom Elliott UUP 6:30, 16 June 2015

I thank the Member for giving way. I just have a query. He has put forward a very interesting amendment. Has he had any discussions with the Probation Board or any of the other criminal justice agencies about the proposal? It would be interesting to hear what they have to say.

Photo of Alastair Ross Alastair Ross DUP

There have been two levels of contact. First, in Committee, when officials briefed the Committee, and I raised the issue with them directly — they said that they were interested and were certainly supportive of a move towards a scheme similar to that in the Irish Republic — and, secondly, informally, through discussions that I have had with members of the Probation Board, who also support it. The Minister is also generally supportive, although it would take time to work out some of the detail. Those whom I have spoken to about this scheme have been very supportive.

I turn to amendment No 7, in the names of my colleagues, which deals with violent offences against older people. I am aware that a petition of concern has been lodged against this. I am sure that all of us, at some stage in our work, have had to visit elderly constituents who have been attacked in their home or robbed on the street close to their home. Indeed, I recall visiting one elderly woman in Monkstown who had been mugged for only a few pounds and a gold necklace and was terrified to leave her home in case she was attacked again. The public are quite rightly outraged at this type of attack against vulnerable members of our community and want action taken against those who perpetrate such despicable acts. This undoubtedly motivated the two Members to bring forward their amendment.

I believe that violent offences should carry a heavy sentence, and anyone who attacks people incapable of defending themselves deserves to be put behind bars for a significant period. It is clear that, as public representatives, we have a responsibility to act on behalf of the wider community, and I have no doubt that most members of the public will support the motivation behind this amendment. However, I also respect the separation of powers, which respects the independence of the judiciary when determining appropriate sentences, and, for that reason, I am always cautious of the imposition of mandatory minimum sentences by a legislature.

This amendment, however, in many ways, seeks to find a middle ground between the expectations of the public and the independence of the judiciary. Most Members should at least acknowledge that this evening. Clause 89A(2) provides the discretion for the courts that I believe is fundamental to ensuring that justice is served. It states:

"The court shall impose a custodial sentence for a term of at least seven years ... unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so."

That discretion means that a judge can take into consideration the personal circumstances of the alleged offender when handing down a sentence. In circumstances in which a person was abused by someone now over the age of 65, whom he confronts, leading to a physical alteration, the context of the altercation is fully taken into consideration.

I know that Members who tabled a petition of concern this evening will argue either that they are opposed to mandatory minimum sentences in principle or that they believe that seven years is too high, but I would have thought that they would at least acknowledge that Mr Poots and Mr Givan, in the wording of their amendment, have addressed the unintended consequences that could flow from the —

Photo of Basil McCrea Basil McCrea NI21

Will the Member give way?

Photo of Basil McCrea Basil McCrea NI21

I am interested in the argument that the Member has put forward, but the amendment, with so many caveats in it, seems to be meaningless, in that there are so many exceptions. If he supports the amendment, can he tell us why and what difference it will actually make?

Photo of Alastair Ross Alastair Ross DUP

What is clear from the amendment is that it is almost like a starting point. The legislation on minimum sentences, including that in Great Britain, has a starting point. It is the legislature saying that, because of the type of offence that we are talking about, there is a public concern, and this is a sentence that the legislature thinks appropriate. However, I also firmly believe that there needs to be discretion for the judiciary to allow for certain circumstances, and that is the point that I made. For Members concerned about a minimum sentence, I think that the inclusion in the amendment of discretion for the courts is a responsible one that should ease concerns that there would not be such discretion.

A clear message is being sent out that we take attacks against the elderly very seriously. It makes sure that there is some comfort for elderly members of the community who are very nervous about being attacked in their own home, and it sends out a strong message to those who would target the vulnerable that those issues are taken very seriously. It provides a framework for the judiciary as well. However, as I said, there is a petition of concern on it. That is unfortunate, but we will listen with interest to the contributions from Members explaining why they are opposed to it.

Photo of Alastair Ross Alastair Ross DUP

I will give way. I was just about to sit down.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

The amendment is not clear on whether it is supposed to apply to all courts, whether it is just the Crown Court or whether it is also the district courts. Could that be clarified?

Photo of Alastair Ross Alastair Ross DUP

It is my understanding that the district court would not be able to deal with these issues, so that would not be appropriate, but, as I said, the amendment is not in my name. Perhaps the individuals who tabled the amendment will wish to elaborate on that for Mr Allister. I have made general comments on it from my point of view, but I suspect that Mr Poots will address that in more detail when he moves the amendment in his name.

Photo of Raymond McCartney Raymond McCartney Sinn Féin

Go raibh maith agat, a LeasCheann Comhairle. I will speak first on amendment No 6, which is tabled in the name of Alastair Ross, and we will support it. I think that, in outlining the reasons why he brought the amendment to the debate today, he put it in context. The Department briefed the Committee on a number of occasions about a procedure that it will use to release prisoners early from their sentence. The Chair, Alastair Ross, spoke about the bar being set and how it will be done to ensure that the people who are released early pose absolutely no risk to the public. Rightly, he identified a gap: whereas other stipulations can be put on a prisoner on release, there was a gap in relation to community service. I think that this was an appropriate mechanism to address that.

The wording of the amendment allows a degree of latitude for the Prison Service and the Probation Board so that it does not become a stipulation. That is in case there are other things that prisoners might do on release. They might take up full-time employment, and community service, if not a hindrance, might certainly reduce their prospects of that. What it is designed to do, in much the same way as if someone was given a sentence that included a probation order, is give rise to conditions that will assist that. In that context, we will support it.

We will oppose amendment No 7, tabled in the name of Paul Givan and Edwin Poots.

Further Consideration Stage is not the appropriate time to bring this type of new clause in front of the Assembly, given the breadth and depth of it and perhaps the discussion that is needed on it. Attacks on older people and how they are treated by the justice system are something worth discussing, certainly worth highlighting and therefore definitely worth campaigning for. However, my party's opinion is that the remit and intent of the clause is such that it would require the full scrutiny process of the Assembly to ensure that we do the right thing with regard to any legislative process.

Photo of Paul Givan Paul Givan DUP

Will the Member give way?

Photo of Raymond McCartney Raymond McCartney Sinn Féin

I will indeed, yes.

Photo of Paul Givan Paul Givan DUP

Will the Member concede that this is the very same point that he made about an amendment on the regulation of private abortion clinics and that when we did that, the Members opposite issued a petition of concern? Sometimes, it does not really matter what we are going to do: if you are opposed in principle, you will use these arguments, but they are not actually substantive.

Photo of Raymond McCartney Raymond McCartney Sinn Féin

During the recent debate, we said that the approach taken was the principle of full scrutiny, but we also outlined reasons why we opposed the intention of that amendment at that time, so it was a two-pronged approach. This is a two-pronged approach as well. Who knows what our approach would be if this were brought through full scrutiny. We have reservations about minimum sentencing. I will go into that shortly. The reason why I said it was that, this afternoon, the Health Minister moved the Second Stage of the Mental Capacity Bill in the House. He talked about the long process of framing that Bill. He talked about the long process of scrutiny that the Ad Hoc Committee, of which I am a member, will give to the Bill. He cautioned the Committee about amendments — I suppose, from his point of view, correctly — and that sometimes, even after full scrutiny, the intention of an amendment can take a Bill in the opposite direction. He said that when you legislate in haste, you sometimes have to repent at leisure. That is an appropriate observation, if you like, for this amendment.

A number of people pointed out the deficiencies, from their point of view, in the way in which this has been proposed. Only two Members have spoken, so I assume that others, when they speak, will look at it in a number of ways. We believe that to come at this stage of a legislative programme with a proposal like this, with no scrutiny process, does not allow the issues to be considered by the stakeholders involved: the justice agencies, the PSNI and, I suppose, even the Sentencing Council. Their views would, in my opinion, allow us to inform ourselves better of how we should take this forward and, in particular, how we deal with the issue.

I have elderly parents. I accept that the vulnerability of older people is something worth discussing. It is worth reminding ourselves that perhaps they do not feel as protected as they should. The process to take us to the conclusion is not to come in at Further Consideration Stage. I think that we all accept that Further Consideration Stage is the part of the process where you tighten up deficiencies after all the scrutiny. While the proposers may be well intentioned, I think that, in many ways, this is a process of circumventing the system. The point can be made — I will make it here, too, to the Justice Minister and, indeed, to any other Minister — that sometimes when a Bill is so broad, and we had a discussion about this previously, it nearly becomes a miscellaneous Bill. When it becomes a miscellaneous Bill, you lay the ground for this type of clause or amendment to be brought in at the last stage. It is totally legitimate with regard to the process, but with regard to the outcome, it is far from that.

If this ever resurrects itself in another guise, and so that I am not accused of saying that we should have full scrutiny but that we still POC'd it at the end, I want to say that there are issues around minimum sentences. We have discussed this before. There have been other motions in the House and indeed circumstances when legislation was seeking minimum sentences and we spoke against them. I well remember a private Member's motion dealing with this issue. A number of Members said that a minimum sentence did not allow for judicial discretion or the circumstances to be taken into account.

There is even the framing of this amendment. Many would ask, "Why 65? Should the same protections not be offered to 64-year-olds?" The amendment may be well-intentioned to try to deal with an issue that we need to deal with, but, in our opinion, this is not the way to do it. With that in mind, particularly around the principle of no scrutiny, we were certainly willing to sign a petition of concern.

If it is brought back to a Committee, we will certainly raise the other points around clarity, minimum sentences and even whether it is an idea to pick an arbitrary figure and say that some will be protected at that age and others will not. That is something that we will discuss at that stage, but for the purpose of tonight's debate, we are supportive of the concept and use of the petition of concern. Go raibh mile maith agat.

Photo of Alban Maginness Alban Maginness Social Democratic and Labour Party 6:45, 16 June 2015

The SDLP is supportive of amendment No 6, and we commend Mr Alastair Ross for bringing it to the Committee and the House. The amendment will fill a gap that he spotted. It does not exclude the possibility of a prisoner who is released early from, if it is appropriate, getting gainful employment. In any circumstance, one would desire that to happen, and it is important that this is permissive rather than mandatory.

In a way, that helpfully leads into amendment No 7, on sentencing for violent offences against older people.

Photo of Basil McCrea Basil McCrea NI21

Will the Member give way?

Photo of Basil McCrea Basil McCrea NI21

Just before you move on to amendment No 7, I am interested in your thought processes regarding the permissive nature of amendment No 6. It seems that these terms are quite loose: that people "may be required". If it is such a good idea, should we not be a wee bit more exacting in the matter? Why does the Member favour that form of the amendment?

Photo of Alban Maginness Alban Maginness Social Democratic and Labour Party

First, it fills a gap, and, secondly, it provides a flexibility that is helpful in dealing with the early release of prisoners. In circumstances where a prisoner has gained early release, we have to provide, in my view, an environment in which that person can constructively live in the community and, to some extent, pay for the harm that he did to the community.

I believe that Mr Ross and his colleagues intend for this provision to do that, and that is a worthwhile objective. It remains to be seen how it would work in practice. Nonetheless, it is better that a person who is released from prison early, who is carrying out work in the community gratis, without being paid for that, is provided with discipline and a structure to their lives that might otherwise be absent. It does not exclude a person, where an opportunity arises, from taking up gainful employment. I will give way to Mr Ross.

Photo of Alastair Ross Alastair Ross DUP

I thank the Member. He is explaining very well the rationale behind the amendment and its importance to someone who has been released from prison. We are talking about very low-level people who have had model behaviour in prison but who have the opportunity to turn their lives around and contribute to society. He is absolutely right on that point.

The other point is that the flexibility that the amendment offers is important. It allows the Probation Board, which is ultimately the organisation that is responsible for monitoring offenders, to work with the Department to ensure that the detail on this is adequate. I think that it is important that we allow the Probation Board, the Prison Service and the Department to work together to bring that forward. I am sure that the Minister would commit to consulting with the Committee as the detail of this is worked out. However, I think that the principle of this is something that everybody should be able to support.

Photo of Alban Maginness Alban Maginness Social Democratic and Labour Party

I am not sure whether our combined efforts satisfy Mr McCrea. As I said, the fact that it is not mandatory is a useful entrée into the next amendment, amendment No 7, which is mandatory and which we in the SDLP oppose.

People are quite rightly outraged by violent offences against older people. That goes without saying, and I think the whole House would defend older people against violent attacks. That is right and proper, and the SDLP, amongst other parties, supports that. However, I have to say that there are other violent crimes against other categories of individuals. Violent crime is something that is repulsive and something that all of us condemn, but there are other categories of people that we could select as being extremely vulnerable, such as vulnerable adults, those with learning difficulties, those with mental health difficulties —

Photo of Patsy McGlone Patsy McGlone Social Democratic and Labour Party

I thank the Member for giving way. I hear entirely what the general thrust of the amendment is about. I think that Members will recognise this, as they have sat through the evidence-taking sessions on the Mental Capacity Bill and heard of the frailties and vulnerabilities of people who find themselves in those situations. They could equally be regarded as vulnerable and as subject and more susceptible to violent acts, and, indeed, as people on whom others prey. While I hear the general thrust of what you are saying, and I agree with it up to a point, you have to say that there are others who would equally fit the bill of being prone, vulnerable and susceptible to violent acts.

Photo of Alban Maginness Alban Maginness Social Democratic and Labour Party

I could not have put it better myself. The point that has to be made is that the authors of the amendment — I do not, in any way, impugn their motives — have selected the category of older persons. That is a category that is deserving of protection and support, but as Mr McGlone said, there are other categories. Children are, of course, one such category. We have talked about older people, and we could talk about children, who particularly require protection, help and support.

There is no opposition to the general thrust of amendment No 7, but it is focused on one particular group. Our objections to amendment No 7 are much wider than its selective nature, no matter how deserving that category. Our objections are, in essence, to the mandatory nature of the amendment. It means that a mandatory minimum sentence of seven years will be imposed on somebody who is convicted.

As a party, we take the view that mandatory minimum sentencing is not in itself a good thing. There are certain exceptions where it, in fact, is done. In excess alcohol cases, for example, you will lose your licence for six months, a year or whatever. Those are mandatory minimum sentences, but they are the exceptions. Murder, of course, carries a mandatory life sentence, although that is an expansive term. A life sentence is an elastic term because it can mean a wide range of years of imprisonment. Mandatory minimum sentencing is a very limited thing, and we should proceed cautiously in creating a new mandatory minimum category that, effectively, ties the hands of the court in exercising its judicial discretion. I listened carefully to what the proposer said in relation to exceptional circumstances and understand that that, to some extent, qualifies the mandatory nature. Nonetheless, from our point of view, it is still not an acceptable proposition. We do not believe that you should constrain the discretion of the court to the extent that the amendment does.

The other point I want to make on this is that the tariff is seven years. I do not know how the supporters of the amendment arrived at seven years. You could easily have arrived at five years, four years, 10 years or whatever. There is no visible rationale for arriving at what I would suggest is an arbitrary figure of seven years. I recognise that it is a fairly substantial sentence, but where is the rationale for arriving at the specific figure of seven years? That has to be fully examined.

(Mr Speaker in the Chair)

Proposed new clause 89A(3) states:

"For the purposes of this section "violent offence" means an offence which leads or is intended or likely to lead to the death of a person aged 65 years or more or to physical injury to a person aged 65 years or more and includes an offence which is required to be charged as arson (whether or not it would otherwise fall within this definition)."

I quote that, but the material point I want to make is that the offence relates to:

"physical injury to a person aged 65 years or more".

Now, if Mr McGlone were over 65 — he is not; he is a very young man — and I gave him a clout on his head, which of course I would never do, and he sustained injury, would I be within that category if I was found guilty? Would the court then decide or feel obliged to impose a seven-year sentence? My point is that physical injury in the context of the amendment is ill defined; in fact, it is not defined at all. I understand the proposer's intent, which, I assume, is to deal with a much more serious injury than simply giving Mr McGlone a clout on the side of the head. It is something that I would have thought would cause some sort of serious injury. That requires definition, but that definition is not contained in the amendment. The amendment is defective, at least in that regard. I could explore that even further, but I will not do so. It is sufficient to raise that point, which shows a specific and, I would say, fatal weakness in the amendment.

I will make one further point, and it is a point of substance. The amendment — I know that it is well intentioned, but it is ill thought-out — should really have been discussed at the Justice Committee thoroughly in detail. We should have heard evidence in relation to the proposal. Mr McCartney made a fair point on that. That did not take place. It is such a serious proposition and such a point of substance that it requires further examination, and it would have required the full attention of the Committee in a series of meetings and discussions. That reason also makes the amendment something that should not be acceptable to the Assembly.

The final point is this: we employ judges to make decisions and to exercise judicial discretion. We put a lot of faith and trust in judges. Sometimes, they get it right; sometimes, they get it wrong. The point is that we appoint people to judge and to exercise a judicial discretion. What we are doing in the amendment is removing that judicial discretion. It is something of value. We could replace our judges with computers and just feed in the information to the computer and get the result, but we do not do that; we employ a human being who is experienced and legally trained to exercise judgement and discretion. We should leave it at that. The amendment, whilst well intentioned and based on a need to protect the vulnerable in our society, particularly the elderly, is ill thought-out and defective. Therefore, we in the SDLP cannot support it.

Photo of Tom Elliott Tom Elliott UUP 7:00, 16 June 2015

These are some of the more controversial amendments at Further Consideration Stage today. Mr Allister's amendment No 6, which concerns unpaid community service, is quite interesting. Who has heard of that for some time? It is a positive contribution, in fairness, to the justice system. We want to give alternatives, different mechanisms and means as opposed to custodial sentencing. That is one option. It is an interesting project and proposition, and it will probably find support around the House. I was interested to know about the discussions that he has had, particularly with the Probation Board. He outlined the informal discussions, and, when some people gave evidence at Committee, he probed on that. It seems to be one that will gather momentum. There are some outworkings to be carried out in relation to how it would progress, but that is an opportunity for another day. The principle of what Mr Allister proposes is probably well grounded.

There is somewhat more controversy on amendment No 7. I hear what Members are saying around the Chamber. I listened to Mr Maginness intently when he said that people were rightly outraged by attacks against older people. He is absolutely right in that, but many people are outraged at the lenient sentences that are often handed out by the courts. People are equally outraged by that.

Photo of Alban Maginness Alban Maginness Social Democratic and Labour Party

I thank the Member for giving way. From time to time, people are outraged by lenient sentences, but we have not heard any evidence in the House today or at the Justice Committee on the issue of lenient sentences, particularly in relation to violence against older people. That is why I suggest that the amendment is based on what I would suggest is a false premise. We have not been able to properly analyse the problem that the amendment is supposed to address. If the Member has evidence in relation to lenient sentences that is more than simply anecdote, he should present that evidence to the Assembly.

Photo of Tom Elliott Tom Elliott UUP

I thank the Member for that. We do not have to think back too far: although it was not for violence against older people, there were lenient sentences for the people who mistreated the dogs. There was actually a campaign. We hear on a regular basis about the courts handing out lenient sentences —

Photo of Basil McCrea Basil McCrea NI21

Will the Member give way?

Photo of Tom Elliott Tom Elliott UUP

I will give way in a moment.

I am happy to take evidence, but it is somewhat remote of us to say that we should not bring it forward at this stage. I accept the point that it probably would have been better to have a discussion in Committee — I do not disagree with that — but we have another group of amendments coming later that have not been to Committee that the SDLP has co-signed. They have been to Committee on a different aspect but not for the Justice Bill.

Photo of Basil McCrea Basil McCrea NI21

I thank Mr Elliott for giving way. On his point about leniency and how the public are not happy, does he agree with Mr Wilson that judges are a bit out of touch with the rest of society, or does he take a different view?

Photo of Tom Elliott Tom Elliott UUP

I thank the Member for that. I am sure that some people would say that politicians are out of touch with society as well. People of all shades will indicate that some judges may be out of touch. I am not saying that they are; I am not making any judgmental decision on that. All that I am saying is that, at times, people are frustrated at lenient sentences. People in whatever profession will always come in for criticism. A car mechanic will often get criticism for not changing some part on your car. It is natural that people will get criticism, whether they are judges or anyone else.

Mr Maginness also raised the issue of needing to look at other aspects as well as violence as against older people and said that maybe we needed to look at violence against vulnerable people. Maybe we do. I am not one for putting a carte blanche process in place whereby there is a minimum sentence for everything, but there are some aspects where there is a requirement for minimum sentencing. Maybe violence against vulnerable people is another of those. I certainly think that serious violence against older people is one.

There are a couple of queries in the amendment that I would like to hear clarified. I know that the Members who tabled the amendment have not yet had the opportunity to speak, but I will put it on record now that subsection (3) of the new clause reads:

"For the purposes of this section 'violent offence' means an offence which leads or is intended or likely to lead to the death of a person aged 65 years or more or to physical injury to a person aged 65 years or more and includes an offence which is required to be charged as arson".

Is the point about arson linked to the aspect of physical injury, or are they separate issues? I am looking for some clarity on that. Also, subsection (4) talks about "exceptional circumstances". I would be interested to hear the Members' views on how wide those exceptional circumstances will carry.

I know that somebody said earlier that, if there are so many exceptions, what is the point of putting it in. I do not accept that point. I think that you can, and should, have exceptions. All that I am looking for is for the signatories to the amendment to put on the record in the House what those exceptions are.

By and large, I do not give minimum sentencing carte blanche support, but I think there is a point to having it in certain cases. I think that the public are outraged that there is such violence against older people and such lenient sentences handed down in some cases of violence against older people, and, indeed, in other cases.

Photo of Stewart Dickson Stewart Dickson Alliance

I welcome the opportunity to speak to the second group of amendments. They relate to early release conditions and some sentencing proposals, as we have heard in the debate. I do not intend to go much beyond what at least two of the Members who spoke said this evening, but I want to contribute to the debate on amendment No 6, which was proposed by Mr Ross. <BR/>There is considerable merit in what he is proposing. It seems to me that he is taking us in a restorative and positive direction, although I have some concerns that bringing forward such an amendment may veer into the realm of departmental policy. Therefore, I think it is important that, as we work this through, collaborative work is done by the proposer and the relevant agencies and the Department to see the amendment's practical outworkings.

Photo of Basil McCrea Basil McCrea NI21

Will the Member give way?

Photo of Basil McCrea Basil McCrea NI21

It is interesting that the Member is supportive of amendment No 6. Will he outline some of the detail behind it?

Photo of Stewart Dickson Stewart Dickson Alliance

That is the very point that I was making. When such an amendment comes forward, it is important that we have an opportunity to go through the detail of it. That is why I was suggesting that it veers into the realm of departmental policy. We as Committee members will receive that policy and see in detail the practical outworkings of those things. Having been at the meetings that Mr Ross referred to, and given that there are agencies out there that can deliver on prisoners being provided with that type of work on release, I am generally satisfied that it is a road that we should continue down, and continue down in the Bill.

Photo of Basil McCrea Basil McCrea NI21

Will the Member give way?

Photo of Basil McCrea Basil McCrea NI21

When I was on the Justice Committee, there were discussions about community service, and suggestions were made that people should wear clothing that is easily identified. Does the Member think that that is an area that we ought to be going into? Do we need to look at that in more detail?

Photo of Stewart Dickson Stewart Dickson Alliance

I well remember the debate about the type of clothing. I found that to be a particularly offensive aspect of it. Certainly, having listening to Mr Ross, I do not believe for one second that that is the area that he is intending to veer into in any respect. In fact, the discussion about those prisoners who are going on early release and who, for example, have gained remunerated employment in the community would be facilitated.

The issue has been substantially worked through in the Republic of Ireland. This might be an opportunity for the Committee and its Chair to deal with and explore those issues further. There, a requirement is placed on the Minister to look at it as an alternative, and it requires the Department to work up an appropriate scheme to deliver it.

I will turn to amendment No 7. It is the area that causes me the greatest concern. Put simply, if implemented, it is my belief that amendment No 7 will make for bad law. Any violent crime against any person is unacceptable, regardless of that person's age or circumstances. We have heard Mr Maginness and others provide us with long lists of many people who are vulnerable, or who perhaps are not vulnerable but become vulnerable as the result of a violent crime against them. While there have been horrendous circumstances in which people who are perhaps older have been traumatised by violent crimes against them, to single out those who perpetrate crimes against older people as a particular section for a particular type of sentence is very difficult.

Indeed, to draw an arbitrary line at the age of 65 causes me concern. One of my party colleagues is 65 tomorrow, so if she were violently assaulted today, a judge might award a three-, four-, five-, six- or seven-year sentence against the perpetrator, but tomorrow they would have to implement a seven-year sentence. The judge would have no discretion whatsoever to take into account the circumstances of the event. We should allow the judge to do what none of us in this Chamber can do. We can hypothecate for as long as we like, but until we hear the actual circumstances and the detail of what has gone on, it is impossible to provide the appropriate sentence and regime for dealing with the matter that occurred.

It is perhaps even less wise that we attempt to usurp the position of judges by sticking an amendment onto legislation that bears little resemblance to the legislation in the first place. One could, indeed, conjugate any number of circumstances that would mean that a person could go to prison as the result of a minor scuffle due to the loose wording of this poorly drafted amendment.

Violent crime against any member of society is, as I said, unacceptable. We must do what we can, and what we should do is prevent it through good crime prevention. When such crimes happen, we should rely on our judges to deliver justice. The proposed amendment will not do that. It will cause confusion, and that is an inappropriate way to deal with this matter. Like others, my party and I have concerns about mandatory sentences for the very reasons that I outlined. Once we make law, it is our role to pass that to the judiciary, and it is for that arm of the law to determine the appropriate sentence for the crime that has been committed. In the circumstances, therefore, I will not support the amendment, and I call on the House to oppose it.

Photo of Sammy Douglas Sammy Douglas DUP 7:15, 16 June 2015

I support amendment No 6, which has been tabled by my colleague the Chairman of our Committee. I will make a few general comments, because there seems to be some consensus among Members present.

We are not debating a new idea in conditional early release. It has been utilised for some time in other jurisdictions, as ideas on how best to rehabilitate and resettle offenders change and develop.

We are talking about an extensive early release scheme, such as exists in Great Britain and the Republic of Ireland. England and Wales, for example, together with Scotland, operate home detention curfew arrangements, while the Irish Prison Service launched a community return scheme in 2011. Those schemes see sizeable numbers of prisoners released early from the custodial parts of their sentences. In the Republic of Ireland, the community return programme is an incentivised scheme that provides for earned temporary release, under which offenders who are assessed by the Irish Prison Service are offered early temporary release in return for supervised community service. Officers of the Probation Service assess offenders as to suitability and motivation to complete the community work.

I suppose that, in one sense, we all recognise that people who receive a custodial prison sentence have been found guilty of breaking the law and are being punished by being deprived of their freedom, but here we are talking about a small number of prisoners who present a low risk of reoffending and have been model prisoners during their time in custody. Their release is under strict licence conditions. I certainly believe that it is important to reward hard work and exemplary behaviour to help low-risk offenders to reintegrate into society more quickly

The scheme must be deliberately restrictive because we need to maximise public confidence in it, and in the wider criminal justice system, so we are targeting the release of low-risk, model prisoners. In a previous role, I worked with ex-prisoners, and I have a question to which maybe the Minister or someone else will provide a response. Certainly, in those days, some prisoners were released early because they got a job. Are we including in early release only people who are able to take up a paid job, or are we talking about those who will take unpaid community work? No takers? OK.

Article 19 already provides the Department with quite a wide-ranging discretionary power to release prisoners early, and, certainly, the Minister has that power. I welcome the departmental proposals, including:

"a number of tests, which have been drawn up to ensure that only those offenders who have demonstrated that they pose a low risk of reoffending, have been well behaved whilst in custody, have approved, stable and supportive accommodation in the community and have complied fully with all conditions imposed during any early periods of temporary release would qualify to be considered for early release."

The Bill must ensure public confidence in the scheme, and I am pleased that the Department has further tightened the original qualifying criteria. Maybe the Minister will outline the tightening-up of the criteria. The Department said that it has included:

"offences that will give rise to the presumption that a prisoner is unsuitable for early release."

The Department is clear:

"These exclusions follow closely those offences that are already applied in Great Britain on a non-statutory basis and that deem the applicant to be presumed unsuitable for home detention curfew. They identify prisoners who have been convicted of a crime, the serious nature of which makes them unsuitable for consideration for early release, and who, if so released, could undermine public confidence in the scheme and, by association, the wider criminal justice system. While these excluded offences will not preclude an individual from applying for conditional early release (CER), their existence will deem the applicant unsuitable for release unless they are able to convince the governor that exceptional circumstances exist to support their release and that such a release will not have an adverse effect on public confidence."

I want to finish by saying that I welcome the fact that the licence will also provide a curfew condition, provided under article 26 of the order, which will require a released prisoner to remain at a particular place for a set period each day during their early release period. That period cannot be less than nine hours in any one day, and prisoners who fail to comply with the licence conditions may be recalled to custody at any time before the custody expiry date is reached. I am sure that there will be some sort of review of the scheme, and I ask the Minister to detail what the process and extent of that review will be. I support the amendment.

Photo of Edwin Poots Edwin Poots DUP

One can consider the issues in a very clinical way, or one can look at the circumstances of our elderly people and the care and protection that society should provide for them. That is a significant duty that falls upon us. It falls upon us as a legislature, and it falls upon the Police Service, the Public Prosecution Service and the Courts and Tribunals Service. We all have to act in unison to ensure that we protect our elderly so that they do not become prisoners in their own homes. We must ensure that, as a society, we cherish and care for them.

I was reading through transcripts from my local paper from days gone by and came across the headline, "Elderly couple attacked in their home". The article states:

"A couple in their 70s were attacked and beaten by a gang of masked men who stole two guns from their home in Lisburn."

Another article states:

"An elderly couple have been rescued from a deliberate fire at their Lisburn home."

Another states:

"The elderly couple were tied up while the robbers ransacked the house."

That attack happened at Blacks Road. I can recall very vividly when a couple on the Causeway End Road in Lisburn were attacked and the man was badly beaten. Indeed, he died a relatively short time thereafter.

We need to take into account that those things are happening in our community, and we need to do something about them. The Programme for Government recognised that and indicated that more needed to be done to protect our elderly. Indeed, a motion was passed in the Assembly in November 2011 calling for tougher sentencing for those who attack our elderly. Here we are, almost four years later, and that has not happened. I know that the courts have been doing bits and pieces, but the legislature has not taken action on the issue. That action has not happened in the Executive.

Sadly, in 2013, 4,766 crimes were perpetrated against our elderly people. I will repeat that: 4,766 crimes. Of those, about 200 involved violent attacks, 54 were robberies, 27 were sexual offences; there were 150 cases of fraud and 1,154 burglaries. And so it goes on. That is clearly unacceptable, but it is even more unacceptable that only 4% of those cases were brought to court. Does anybody honestly believe that we are doing enough to protect our elderly population? I do not.

I was somewhat surprised when I heard that a petition of concern was launched today, because who are we seeking to protect through the amendment? Elderly, vulnerable people in our community who have been subjected to violent attacks, normally by thugs or some other person who cares little for the well-being of our older population. To lodge a petition of concern on that issue is significant abuse. In the past, this party has sometimes been lectured by others about abusing petitions of concern, but it is a significant abuse of the petition of concern process to use it to stop legislation that would offer greater protection to our elderly population and community.

Mr Maginness raised the issue of the level of assault. I know that he has practised in the Bar for many years while he has not been in politics. I do not need to explain to him the difference between common assault and assault occasioning actual bodily harm. We are talking here about assault occasioning actual bodily harm. This is not about common assault; it is about violent offences against older people. That should be quite clear as it is written up in paragraph (3). I know that Mr Maginness understands that very fully.

Mandatory sentencing is not peculiar or odd. Sinn Féin has stated the position that it is generally not keen on mandatory sentencing. As Mr Givan rightly pointed out, it is using the excuse that this is coming at Further Consideration Stage and, therefore, it is expressing its views through the petition of concern. Mr Givan indicated during the abortion debate that Sinn Féin said that its approach was two-pronged and that its approach on this one is two-pronged and that Sinn Féin is against mandatory sentencing per se. We have mandatory sentencing for drunk driving here. If someone is massively over the drink-driving limit, they will lose their licence for at least 12 months; if someone is over the drink-driving limit by a minuscule amount, they will lose their licence for at least 12 months. That is mandatory sentencing in effect. I have not heard a public outcry saying that we need to get away from this mandatory sentence that is imposed on people who drink and drive. It is widely and strongly supported, and Members would do well to recognise that.

In England and Wales, there are prescribed mandatory sentences for certain offences, including firearms offences, repeat drug trafficking, domestic burglary offences and certain offensive weapons offences. In Scotland, there are mandatory minimum sentences for some firearms and drugs offences. In the United States of America, federal law has mandatory sentences for certain immigration offences; identity theft; sexual offences against children; production, possession or use of fire or explosives; airplane hijacking; obstruction of justice; illegal food stamp activity; kidnapping; hostage taking; bank robbery; racketeering and organised crime; fraud, bribery and white-collar crime; piracy; certain types of assault or battery; assault of a US serviceman; interference with Civil Service examinations; stalking and violation of a restraining order; treason; failure to report seaboard saloon purchases; practice of pharmacy and sale of poisons in China; navigable water regulation violation; deposit of refuse or obstruction of navigable waterways; deposit of refuse in New York or Baltimore harbours; violation of the Merchant Marine Act; refusal to operate railroad or telegraph lines; and so it goes on. What we are calling for is mandatory sentences for violent attacks on the elderly. I would have thought that violent attacks on the elderly were considerably more important than dumping waste, for example, in Baltimore harbour. That is accepted in other areas.

For aggravating factors in sentencing guidelines, research has identified that, in federal law again, sentencing guidelines allow for victim-related adjustments to be made. The guidelines provide that, if the defendant knew that the victim of the offence was a vulnerable victim, the sentence should be increased by two levels. A vulnerable victim is defined as a person who is unusually vulnerable due to age, physical or mental condition or who is otherwise particularly susceptible to criminal conduct. Similarly, the Minnesota sentencing guidelines include among aggravating factors the fact that the victim was particularly vulnerable due to age, infirmity or reduced physical or mental capacity and that the offender knew or should have known of that vulnerability. Very clearly, in other places, minimum sentences are not unusual and, indeed, offences that have involved the elderly are taken into account.

Other countries that have minimum sentences include Canada, Australia and New Zealand; countries that are not regarded as being particularly draconian but where good practice is followed in law.

Mandatory sentences reflect a societal judgement that certain offences demand a specified minimum sanction and ensure that anyone who commits such a crime cannot avoid punishment. It recognises that legislatures are very often better positioned than judges to make types of judgements on penalties and that legislatures have the authority to make moral and empirical decisions about how conduct should be sanctioned. Mandatory minimum sentences address two widely acknowledged problems: sentencing disparity and unduly lenient sentences. Mandatory minimum sentences prevent crime because certain and severe punishment has a deterrent effect whether we like it or whether we do not. They are an important law enforcement tool, supplying the police and prosecutors with leverage to secure cooperation and testimony of low-level offenders against more senior confederates. Imprisonment reduces the number of future victims of crime and reduces that cost that the rest of society would otherwise suffer. Those are the main reasons for mandatory sentencing.

I see that Mr Allister is amongst us, and he raised a very important issue the last time. That is why, when I brought this amendment to the House, I brought it forward as a presumptive mandatory sentence.

He raised the case, and the exceptionality clause is there when, for example, an individual may have been engaged in an act of sexual molestation against a young person. That young person's father may have decided to take the law into his own hands, wrongly, and attacked that elderly person, who may have been 66 or 67 years of age. Of course the judge should have the ability to give consideration to the exceptionality of a case like that. There are many other cases that could be cited in which it should be left to the wisdom of judges, but those things should happen in exceptional cases.

Mr Maginness asked this question: why seven years? Why not two years, four years or 10 years? This is not going to go through tonight because of the petition of concern, but I would be quite happy to debate those issues, as we are going to have another piece of justice legislation coming to the House. I welcome that this is now being debated and that these views are being aired. There may well be a sentencing Bill coming to the House as well. So, I will be happy to test the appropriate time, but I certainly think that the lower end of the scale does not give the indication of support to our elderly community. It does not have the deterrent factor that a period like seven years would have. Therefore, I think that that is an appropriate sentencing period.

I noted that in British Columbia, a civil liberties group carried out a piece of work that was very critical of mandatory sentencing and sought to run it down. One of the cases that it made was that mandatory sentencing had increased costs by 66% whilst driving down crime by only 30%. I would consider that to be a price well worth paying. In the next Assembly mandate, I would love it if we were able to achieve a 30% reduction in crime and, in particular, a significant reduction in crime against our elderly population.

We all have a vested interest — I always said this in my previous job — in looking after the elderly, because unless we happen to die whilst we are relatively young, we will make it at some stage to being elderly ourselves. We should do everything in our power to provide that care and support for and to show that respect to our elderly community.

I have heard quite a few people saying tonight that the amendment is ill-thought-out. I have not heard the arguments to support that. I have heard a little bit of nitpicking, but I have not heard of qualitative arguments to oppose it. As I said, I am hugely disappointed that a petition of concern was used to block this particular amendment, which is about protecting vulnerable, elderly people who have supported us and provided for us over the years and who we should be providing support and care for now that we are in a position to do it.

Photo of Jim Allister Jim Allister Traditional Unionist Voice 7:30, 16 June 2015

I will address myself to amendment No 7. I will begin by saying that I think that it is wholly inappropriate that a petition of concern is being used to address this matter. This is something that the Assembly should be able to debate rationally and to reach a decision upon and decide the matter on its own merits or demerits. If a proposition deserves to be defeated, it deserves to be defeated on its demerits, not because of a petition of concern. I think that is an important point to make.

I will vote against the amendment, because I think that there are always dangers when politicians put themselves in a position where they think that they know better than the judges on legal issues and when they think that the judge who might have sat and listened to a case for three or four weeks is not the person in an unfettered way to decide upon conviction what the appropriate sentence should be, but that we, who have never heard a day of the case, should sit in this House and postulate into the future and say, "This crime should and must attract a mandatory minimum sentence". That, in principle, is foolish and wrong, and we should allow judges to do the job that they are there to do.

Also, there is some muddle in this amendment. Proposed clause 89A(3) states:

"For the purposes of this section “violent offence” means an offence which leads or is intended or likely to lead to the death of a person".

I want to stop there. It classes all those together and says that if a violent offence leads to, or intends to cause, death then a minimum sentence of seven years will apply. A very pivotal and critical component of our criminal justice system is that there is a distinction between the crime where you set out deliberately intending to inflict grievous bodily harm or kill and the crime that does not have that intention but has that eventual outcome. The law has always rightly recognised that there are gradations in sentences on issues such as that. Right at the outset, this amendment blends all that together and says, "Whether you intended it or whether it just happened, you are subject to the same minimum sentence." In principle, that is hopelessly flawed.

It then goes on to categorise in the same bracket, and I am paraphrasing, an offence that is intended to lead to the death of a person aged 65 years or more or that leads to physical injury to a person aged 65 or more. They are all the same within this amendment. Whether you actually intend the death of the senior citizen or whether you do not intend it but the offence leads to the physical injury of the person, the two are just bracketed together. That cannot be right, because the physical injury that we are talking about could be something that would not even amount to assault occasioning actual bodily harm. If someone is pushed in a scuffle, falls and breaks a finger, they have suffered physical injury. The person who did that, under this amendment, is to be subject to the same minimum sentence as the person — that the legislation even anticipates — who set out intending to kill someone. That cannot be right.

Mr Poots said that this is all about assault occasioning actual bodily harm. Is it? All it talks about is physical injury. Let us say that it is assault occasioning actual bodily harm that this is looking at. It is saying that if you occasion actual bodily harm to a senior citizen, the minimum sentence is seven years. Here is part of the muddle of this amendment: under the law, as it stands, the maximum sentence for occasioning actual bodily harm in Northern Ireland is seven years. This amendment is saying that, without purporting to amend or alter at all the Offences Against the Person Act or the Criminal Justice (No. 2) Order 2004, which increased the threshold to seven years, we are now going to import the same minimum sentence as the law provides as the maximum sentence for the offence of occasioning actual bodily harm. That just does not add up.

If it is some other offences that are intended, let us remember that there are basically four gradations of assault from common assault, assault occasioning actual bodily harm, inflicting grievous bodily harm under section 20 of the Offences Against the Person Act to causing GBH with intent, which is covered in section 18 and for which a life sentence is available. If you go out intending to cause the death of a person, whether they are aged over 65 or under 65, you are not likely to be charged with assault occasioning actual bodily harm. You are likely to be charged with attempted murder or something of that order, where the life sentence is available.

I do have to say that, no matter what way one reads this amendment, it does strike me that it is riven with muddle and confusion about what it actually would achieve. It then says that, in exceptional circumstances, the judge can set all that aside. What is the point then? What is the point in circumstances where our judges today have the full discretion as to how they sentence someone, into which they will weigh and measure the background of that person and the nature of their victim, which can be an aggravating factor, and come to a decision on what the appropriate sentence will be? That is the way that it should be. It is not for this House to apply one size fits all and say, "You will have a minimum sentence for any violent offence to a senior citizen".

Photo of Paul Givan Paul Givan DUP 7:45, 16 June 2015

I thank the Member for giving way. The Assembly passed the Human Trafficking Act, which has the same exceptionality as there is in this amendment. I cannot recall whether the Member voted in favour of that. He may well have done so. I know that other people on the opposite Benches did vote in favour of that. The exceptionality is based on the same premise that the Assembly has already passed, so this is not a precedent.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

I may well have voted for that, but that is not the point. The point is that judges, as they presently operate, give weight to the particular and exceptional circumstances of any case. That is how they measure the sentence. This proposition wants to turn that on its head and say that you shall, in default position, impose a minimum sentence, and that, if you do not want to, you have to circumscribe the special circumstances that justify you not doing so. That is, in my view, totally undermining the judicial function and doing it in such a way that we really are getting ourselves to the point of asking the question, "Why have we got judges at all?". Why do we not just issue them with a sheet that says that assault occasioning actual bodily harm is seven years? That is really how foolish, I think, a road this is to head down.

You have to give judges the right to impose what, in their considered opinion, is the right sentence. If it is the wrong sentence, it will be capable, as a serious matter, of referral to the Court of Appeal. If it is capable of referral, the Court of Appeal can issue a guidance judgement on what sentence it expects in cases of that nature. There are many guidance judgements that set the parameters on most of these things. We are, therefore, tackling a job we do not need to tackle. We should leave it where it is.

The final point I want to make is about the muddle of this. It seems to me somewhat incongruous that someone can commit a criminal offence and then after the event, when they discover that the victim was 65, suddenly they face very different consequences. This amendment says that, whether you knew the person was 65 or not, it is an absolute liability. If they are over 65, you are hit with a minimum sentence. That seems to me to be another dimension of politicians meddling too far in the sentencing process. I do not think anyone would suggest that I am some sort of liberal on too many issues.

Photo of Basil McCrea Basil McCrea NI21

Heaven forbid.

[Laughter.]

Photo of Jim Allister Jim Allister Traditional Unionist Voice

However, there are important principles at stake in how we operate our criminal justice system. Meddling to this prescriptive extent is to take matters far too far.

Photo of Basil McCrea Basil McCrea NI21

I certainly would not call Mr Allister a liberal — I am sure he will be pleased about that — but I did listen, as I do to all his contributions, and his argument was cogent. It appears to me that these amendments are for the optics. They are a stunt. They change relatively little — in fact, nothing.

I give Mr Ross the benefit of the doubt, because I know, having inquired, that he raised these matters at the appropriate stages in Committee, and perhaps there is some merit in amendment No 6. But I was disappointed, I have to say, when I heard learned Members in the SDLP and the Alliance Party eulogising an amendment that gave no detail. I think that you should look at the detail in these cases. If we are going to pass legislation, then we ought to know what it means and what we are going to do with it.

There are so many caveats to amendment No 6: "the Department may", "having consulted" and "may be required". It is so open, we can just give it a by-ball and have a look at the departmental policy when we get it, as Mr Dickson said. However, I have to say that there are areas that are fraught with danger. The whole issues of probation and how we manage prisoner release and reintegration into society are important and not to be taken trivially.

Photo of Alastair Ross Alastair Ross DUP

I thank the Member for giving way. Perhaps if he had still been a member of the Justice Committee he would understand better that article 19 of the Criminal Justice Order currently gives the power to the Minister. The Minister at present is able to allow prisoners out on early release from prison. He has this power at present, without any recourse to the Committee or to the Assembly. Most Members who are coming at this amendment from an educated position have appreciated that there is a gap in the legislation. That gap is being filled by an amendment that will allow the Minister to ensure that people who get early release from prison still serve out the remainder of their sentence in a more productive way, whether that be through community service or through getting paid employment, as some Members pointed out. The Member may view it as a minor change, but, actually, it is a significant change. It is something that the Probation Board wants to see, and that is why it is important that it works up the detail of the amendment with the Minister. It is also something that I think can benefit wider society, and certainly benefit those of us who wish to see reoffenders be rehabilitated.

Photo of Basil McCrea Basil McCrea NI21

I am grateful to the Member for clarifying the position. As I said, I am happy to listen to the viewpoint that he puts forward. The point that I was making is that such matters should not come forward uninformed or unchallenged. We will take a position that it is enabling, I guess. Therefore, let us see whether we can do something with it in future. My concern when I saw the amendment was around whether we had looked at the implications and thought them through. I did not know, because it has not been stated in the debate yet — perhaps it was earlier, and I missed it — that the Probation Board was asking for those changes. Those are matters that we have to take into consideration. If I take it that there is some consensus forming around the amendment, there is no point in me going on about it, but I do think it is important that at least some people stand up and say, "Are you sure about this?".

Let me move on to a point about which I was also disappointed. It concerns an area in which I am in agreement with Mr Allister. The thought that our justice system should abolish the judiciary and end up with this group of people making decisions fills me with horror. The idea that Mr Givan and Mr Poots are going to legislate for mandatory sentences for everything is appalling. I heard Mr Maginness say that judges sometimes get it wrong. Fair enough, but there is the Court of Appeal. There is an entire process in which people go through and review what the situation should be.

Photo of Alban Maginness Alban Maginness Social Democratic and Labour Party

The process for getting to the Court of Appeal is that the Attorney General looks at what is described as a lenient sentence and determines, in his opinion, that it is. It goes to the Court of Appeal, which can then look at that in depth. That is the mechanism that we have created, and we should use it.

Photo of Basil McCrea Basil McCrea NI21

That is the point. I am in agreement with that. I do not support the view put forward by Mr Givan about some cultural warrior wearing a wig in a courthouse, nor do I support the view of Mr Wilson that judges are out of touch. Judges are an essential part of our democracy. There is a balance between legislation and the judicial system. We look at that situation with the full rigour of legislation, but to try to say that we do not need the judiciary or some type of group of people who can take all the facts together is frankly appalling.

I do not know whether the signatories to amendment No 7 looked at this issue, but I looked at a decision by the Court of Appeal on 15 January 2015 regarding one Edward Stuart Cambridge. I will read out what the offence was:

"In the early hours of 30 June 2013 a 58 year old woman"

— not a 65-year-old woman but a 58-year-old woman —

"suffering from numerous medical conditions which included spinal problems, arthritis and asthma was at home in her apartment in sheltered accommodation for the elderly or infirm. The appellant entered her flat shouting 'Where is your money?' and asking for her bank account details."

He said other things, including:

"I am going to kill you".

After that process was gone through, what was the statement? What did the Court of Appeal say?

It wanted to take the opportunity to state — Mr Poots brought up this issue — that the following principles applied: the starting point for robbery of households where violence is used should be 10 years — not seven years but 10 years — and this would increase depending on the age, vulnerability or infirmity of the occupiers. This would increase the sentence to approximately 15 years, which would not be regarded as excessive. There is this notion that we should introduce seven years: why are you being so lenient? Why are you seeking to reduce this? Do you not care about the elderly and infirm? Do you not want to see the full rigour of the law against those who perpetrate violence on vulnerable people? Why are you identifying only some sections of the community? Why are you not looking at the most base attacks against women, those with mental health issues and those who are vulnerable? This is a stupid amendment. It has been tabled for some sort of optics or to get some sort of advantage.

Photo of Mitchel McLaughlin Mitchel McLaughlin Speaker 8:00, 16 June 2015

Can the Member address his remarks through the Chair?

Photo of Basil McCrea Basil McCrea NI21

Mr Speaker, I am addressing my remarks through you, sir.

Photo of Mitchel McLaughlin Mitchel McLaughlin Speaker

Be careful about using the word "stupid".

Photo of Basil McCrea Basil McCrea NI21

Mr Speaker, sir, this is my assessment of the amendment. It is not derogatory; it is my assessment of what has been put in front of me. I am entitled to that view. I will move on.

I will talk about the Judicial Studies Board for Northern Ireland's sentencing in cases of manslaughter, attempted murder and wounding with intent. There is an entire body of evidence on what people consider appropriate. You get issues. I will just mention one at random: 10 years when a defendant committed an unprovoked attack on a defenceless, vulnerable 71-year-old man in poor health. All the case studies are here. The judiciary does not take this lightly and does not ignore the aggravating factors. It also looks at other issues that maybe should be taken into account, such as diminished responsibility. It sets out in great detail how much weight should be given to those issues. Through you, Mr Speaker, I put it that the amendment is not worthy of support. It is not the right way to go forward.

Mr Allister, I think, challenged the petition of concern. I signed the petition of concern, and let me tell you why: a bad amendment has been put forward that will not assist anybody. It is trying to use and abuse the process by coming in at Further Consideration Stage. Had this been properly investigated, reviewed and peer reviewed, you might consider it, but, coming in at this stage, it is for optics. This is about people who have a career based on attacking the judiciary. This is people saying that they do not trust the judiciary or the legal system. Let me tell you that, if you end up in that type of country, you will regret it. The pillars of our society and our civilisation are built on an independent judiciary. You meddle with it at your peril.

A lot in the amendment is not clear, so let me say in conclusion that I am still not sure whether it involves issues to do with common assault or matters that go through the magistrates. I am looking at the Offences Against the Person Act 1861: for the summary offence of assault where no injury is caused or where the injury is minor and non-permanent such as bruising, the starting point is a community order plus a compensation order. If you are over 65, of course, it will be seven years. There is no clarity about what the amendment actually seeks to do. That is because it is poorly thought-out and poorly written and is poor law. I can go through all the issues. It has brought me to the stage at which I am forced to sign a petition of concern because I cannot take the risk that this will go through. Do you know what made me decide to do that? It was the knowledge that the Ulster Unionist Party was going to support the amendment. The Ulster Unionist Party — the party that used to pride itself on being the party of law and order — will support the amendment. That is appalling. It shows that you have no independent thought, and that is why I had to sign a petition of concern to defeat the amendment.

Photo of Claire Sugden Claire Sugden Independent

I welcome the opportunity to speak on the group 2 amendments. I will briefly refer to amendment No 6, which is a progressive way of looking at rehabilitation, so I congratulate the Member for thinking outside the box.

On amendment No 7, I will start with the point that Mr McCrea finished on — the petition of concern. I do not sign petitions of concern — they are an abuse of democracy — but tonight I signed my first petition of concern. I do not see it as an abuse in this case. I see it as a way of limiting people who think that they know better. They can say that this is the will of the House — Mr Allister referred to that — but it is not the will of the House; it is the will of the guy who comes round, gives them the whip and tells them what to do. This is a case where I felt that we needed to sign a petition of concern.

I struggle to find the parliamentary language for "stupid", Mr Speaker — I apologise for that — but the amendment is stupid and ill informed. It disrespects the entire sector. Mr Poots says that we are protecting the older sector: we are not protecting the older sector. If Mr Poots felt that we were protecting the older sector, he would know that the Commissioner for Older People Act (Northern Ireland) 2011 defines older people as those aged 60 and above. In some circumstances, someone aged 50-plus can be defined as an older person. If we are really to respect the sector and do what we intended to do, let us put some facts to it. To be honest, even the Office of the First Minister and deputy First Minister does not know how to define older people — it cannot get its active ageing strategy off the ground. I have difficulty when a party tables an amendment to protect the rights of older people while dragging its heels on other issues that make more sense.

I recognise the sentiments in the amendment. In my constituency, we have had cases of older people being dragged from their home. By all means, their attackers should be punished; I do not disagree with that. What irks me about this amendment is that disabled people, ethnic minorities, children and other vulnerable people who are abused — in fact, everyone who has had an offence committed against them — should have the same satisfaction of knowing that the offender will be held to account. Generally, we disrespect older people by saying that they should be elevated in that way. I do not agree with that.

The Members who tabled the amendment lazily try to define a "violent offence". I take exception to that, too. They laboured the point about sexual abuse. Should a sex attacker not experience the same repercussions as someone setting out to kill someone? It is just a very lazy attempt at legislation.

The amendment leaves out mental abuse. Across Northern Ireland, we have heard of older people being mentally abused in care homes. That can be just as bad a crime as physical abuse. The huge holes in the amendment also disrespect the sector.

I will not claim to know law in the same way as people in the House who have worked in the profession know it, but they have demonstrated that the figure of seven years is completely uninformed.

If we are to protect the rights of older people, let us do it right; let us not tag it on to a Further Consideration Stage.

I agree with other Members: the sentiment is there. However, if you really meant it, you would have tabled it at Consideration Stage and we would have had the opportunity to amend it at this stage. I get the sentiment, but I do not quite accept the intention.

I signed the petition of concern on the amendment, and I think that I had a valid reason for doing so. It highlights the inability of some Members to draft legislation, and that is a bigger crime than any of the other abuses of the petition of concern in the past. I will not support the amendment.

Photo of Paul Givan Paul Givan DUP

I do not intend to cover the ground that my colleague Mr Poots covered; he articulated very coherently the rationale behind what we have proposed. I note that nobody sought to make any interventions to him and, indeed, Mr McCrea and Ms Sugden spent the entire time talking to each other. I can understand why they are still ill informed about what is being proposed. Maybe when they get some manners, they can get a little more informed.

Mr Allister made the point about the petition of concern being an abuse, and it is. My party does it, and we will defend the times when we decide to use it. However, other people should not now lecture the DUP about abusing the petition of concern mechanism. We are all now the guilty parties: Mr Lunn signed one for the first time and Ms Sugden signed one of the first time; we seem to have a lot of firsts recently when it comes to petitions of concern. We are all at it. Mr Allister is shaking his head profusely; he has not done it. Sorry, Mr McCallister has also continued with the principles that he founded in NI21, which once had a principled position on that. Like other principles, it seems to have departed from that organisation.

This party could have used the petition of concern against Mr Allister's amendments on preliminary inquiries. I regard preliminary inquiries as an abuse of vulnerable witnesses, and that is why I did not vote for them. I believe that people are put in the box and interrogated by lawyers, barristers and so on to put the frighteners on them so that they will not proceed. I regard those inquiries as an abuse of those individuals; that is my position. We could have tabled a petition of concern on those amendments, but we did not. Therefore, it was the will of the House for the amendments to pass, and I accept that. Interestingly, others tabled a petition of concern on this issue and sought to block the will of the House. Whether it would have passed, I do not know.

The crux of the argument that a number of people intimated was around mandatory minimum sentencing; that seems to be a principled issue, and it certainly was for Mr Allister. He is someone whom I regard as being very much to the right on a lot of issues, and I am there with him on a lot of those issues. However, I cannot agree with him on the premise that he articulated about the judiciary having a discretionary power and being able to decide on all those issues on sentencing. It is something that a parliamentary, democratic institution has within its preserve to consider and, if we feel it appropriate in circumstances, to legislate on. We did that on human trafficking, and I think that Mr Allister admitted that he voted for that. He voted for a mandatory two-year sentence but with an exceptionality clause. Mr Maginness also voted for that. I cannot recall Sinn Féin's position.

Photo of Raymond McCartney Raymond McCartney Sinn Féin

Against. Totally against.

Photo of Paul Givan Paul Givan DUP

Mr McCartney said that he was against it, so they were principled on it. Other Members argued about mandatory minimum sentences, but, in other circumstances, they take a different position.

It is right to have presumptive mandatory sentencing in certain circumstances, and my colleague outlined other countries where mandatory minimum sentencing is the norm on a lot of issues. This is not a mandatory minimum sentence; it is a presumptive mandatory sentence. Other jurisdictions do that. They have judges, and they have not abolished the judiciary in any of those countries — in the United States, New Zealand, Canada and so on. So, the farcical argument that Mr McCrea put forward about us somehow abandoning the judiciary in Northern Ireland is just not a proper, articulate position that anybody with any credibility can sustain or put forward.

I would have some sympathy with Mr McCrea or Mr Allister's arguments were they to bring forward legislation to repeal the Northern Ireland schedule 2 to the Violent Crime Reduction Act 2006, which imposes a 10-year minimum sentence on those who are convicted of offences involving dangerous weapons. That is a minimum sentence; there is no presumption and no discretion for the Northern Ireland judiciary. If you are convicted of offences involving dangerous weapons, you go to jail for a minimum of 10 years. Under article 70 of the Firearms (Northern Ireland) Order 2004, certain firearms offences carry a minimum sentence of five years for adults and three years for those aged 21 and under. There is some differential between the two, but they are minimum mandatory sentences, not presumptive. There is no exceptionality; it is a minimum, and this happens in Northern Ireland. When I listen to some Members argue that, somehow, this is a new departure from the norm, it simply is not the case, and they are wrong to put that proposition forward.

Of course I respect the judiciary. You can go through repeated speeches that I have made commending Sir Declan Morgan for having brought the judiciary to engage more publicly on all these issues and the way in which he engaged with the Justice Committee when I was a member of it. Of course, there is a role for the judiciary, but there is a role for Parliament, and even Mr McCrea articulated that a balance needs to be struck. The difference is that I believe that the balance needs to be more towards democratically elected and accountable politicians who can set the legal framework. He believes that it should be for unaccountable judges, who the Attorney General described, in the current framework of appointing judges, as judges appointing themselves to these jobs. Mr McCrea believes that they should be the ones left to decide on these issues. I think that that balance is not the correct one because we, as politicians, can respond to the public's demands on these issues, and we can take forward legislation on them.

Claire Sugden spoke about this being an abuse, but I just do not accept that. When we consider the cases of elderly people who have been attacked, it is right that we respond. Our senior citizens have said that this is an issue of concern to them. Claire Keatinge, the Commissioner for Older People, intimated as such a number of years ago when she spoke about our senior citizens becoming a specified vulnerable group, which would mean that that would be a specific aggravating factor. That is something that could have been taken forward but has not been, despite there being a Programme for Government commitment on it and despite there being a vote in the Assembly in 2011. There are other things that could have been done that have not been done. We have specified a range of offences in Northern Ireland that are hate crimes against particular sections of our community, and I believe that our older population should be considered among specific vulnerable groups. I think that our argument is well made.

I will close with a case from July 2014, when it was reported that an individual in Northern Ireland who was found guilty of attacking two elderly people of 72 and 75 years of age, leaving them bloodied and bruised, was given a deferred sentence for one year. No custodial sentence was imposed. The case was handled by the Ballymena Magistrates' Court and was reported last year. This individual did not go to jail. The judge said that what he had done was an absolute disgrace and that it was despicable how he had attacked these elderly people, yet he did not go to jail. Do the judges get it wrong? They most certainly do get it wrong, and I think it is right that this Parliament would legislate on this particular issue.

Photo of Paul Givan Paul Givan DUP

I will give way to Mr Allister.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

If I follow, the Member's amendment could not possibly apply to a Magistrates' Court case. He did not tell us what the individual he cited was charged with, but he must have been charged with an offence that was a summary offence, for which the Magistrates' Court has a maximum power of giving 12 months. He could not possibly have attained seven years even under the Member's amendment, because, presumably, it can only apply in the Crown Court.

Photo of Paul Givan Paul Givan DUP

My colleague highlighted that, of course, if the sentence is going to be seven years, these cases would need to be heard in the Crown Court as opposed to the Magistrates' Court. I would have no difficulty with it being heard in the Crown Court, because it warrants being dealt with at that level.

Let us be clear: legislation can and should be used to send a very clear message. It can be a deterrent. It should be a deterrent in these cases, because violent attacks on our older population are the least detected and least prosecuted offences that exist.

I believe that there is a failure in the system and that this amendment is an effort to try to remedy that. However, it is going to be blocked, so let us see how other parties will now engage in this. If people believe that we have got it wrong through some of the technicalities in it, let us see how we, collectively, can come up with a better system than the one that currently exists. If anybody believes that the current system is working, they are not listening to our older population.

Photo of David Ford David Ford Alliance

It is interesting that, when we have been talking a lot about what sympathy we have and who has the most sympathy for older people who are the victims of crime, we are also conscious that today we might have sympathy for those who are bereaved and those who were injured by the balcony collapse in Berkeley, California. That involved a significant number of students from this island, although we do not know exactly from where at this stage.

I will start with the easy one. I have some slight concerns about the process of Mr Ross's amendment, otherwise known as Mr Allister's amendment, because of the early release conditions. To some extent, it means that we are putting legislative authority in place before we have actually done the policy work. However, that said, and aside from that little bit of nitpicking from the Minister, the wording is helpful. If introduced, it would give the Department a discretionary power, rather than a mandatory requirement, to require unpaid community service to be undertaken. It clearly builds very positively on the experience that we have seen across the border. Anything that comes from the DUP supporting Irish policy is clearly to be welcomed, as it shows the openness of its approach in that respect.

In light of the severe budgetary pressures on my Department, I hope that Members will understand that any decision to introduce such a measure will need to be subject to a detailed cost-benefit analysis. I need to give some measure of caution, and, certainly, I will not be in a position to rush to implement the amendment. We would need to look at the potential effects on the Probation Board in terms of how it would sit alongside its community service programme, and we would need an analysis of the Department's employability strategy, so there are a number of issues.

The Prison Service employability strategy is a public commitment to support individuals in custody to develop the qualifications, skills and experience they need so that they can obtain employment when they leave. There has been a lot of progress on that. I have reported recently on the partnership between the Prison Service, the Belfast Metropolitan College and the North West Regional College to provide education and training opportunities to those in custody. Improving prisoners' educational attainment and employment prospects will most certainly help to reduce the risk to the community by reducing the risk of reoffending and supporting a general desistance from crime. There are real possibilities in that area.

Mr Douglas asked me specifically about matters relating to his experience of seeking to promote employment. It is absolutely the case that I wish to see employment opportunities provided where possible. He also asked about offences that would be seen as outside article 19. The current list, as I have it, is that excluded from those provisions will be those serving life sentences, those serving extended or indeterminate sentences, those subject to notification requirements under Part 2 of the Sexual Offences Act 2003 and other prisoners convicted of more serious offences. Obviously, that will be on the basis of individual risk assessment in many cases.

Whilst I certainly support the use of unpaid placements to support rehabilitation, my preference is that, where at all possible, we should be encouraging those leaving custody to obtain paid employment and to make their contribution that way. However, I am happy to accept the amendment and to consider how a community service scheme might work as part of the package of services that we provide to those leaving custody in the future. I think that that is a recognition of the reality as we seek to work through the detail of it.

If that was the easy one, amendment No 7 is certainly not easy to consider. My starting position is certainly to agree with the comments made from all parts of the Chamber that said that, although all crime is to be condemned, crimes against older people and other vulnerable people are particularly abhorrent. However, we also need to be careful that we do not make older people become more fearful about their safety. I think that, at times, we exceeded that in this evening's discussion. As I said at Question Time yesterday, statistics show that people aged 65 and over are the least likely to be victims of violent crime. They accounted for less than 2·2% of such victims in 2014-15, even though they constitute 15·5% of the population. We know, of course, particularly given the effects on anyone who is vulnerable, that one crime is one too many. I appreciate that the aim of the amendment is to send out a message that such crimes will not be tolerated. While I agree with that message, I cannot agree with the amendment. It is flawed, it will not work within the existing legislative framework, and I believe it is not necessary.

The Programme for Government demonstrates the Executive's commitment to ensuring that older and vulnerable people are able to live their lives free from the fear of crime. That commitment is reflected in a range of measures that my Department has taken forward to address sentencing issues and fear of crime and to reduce offending. These include funding projects delivered by Age Sector Platform and Linking Generations Northern Ireland to, for example, raise awareness of existing crime prevention support and promote the benefits of intergenerational work. Policing and community safety partnerships also deliver a range of initiatives aimed at tackling crime against older people. Those include a number of schemes involving home security and a variety of crime prevention projects.

However, the thrust of this amendment is focused on sentencing. The reality is that substantial custodial sentences are available to the judiciary under the current legislative framework for those convicted of violent crime. Indeed, the Criminal Justice (Northern Ireland) Order 2008 introduced public protection sentences where offenders who are considered to pose a risk of serious harm can be detained indefinitely — indefinitely — and decisions on release are made by the parole commissioners and not by the sentencing judge.

For murder, a life sentence is mandatory. For attempted murder or manslaughter, sentences up to life imprisonment are available. For robbery and aggravated burglary, again life sentences are available. For assault occasioning actual bodily harm, penalties of up to seven years maximum can be given. Sentencing decisions within this legislative framework are a matter for the judiciary, taking account of all the factors pertaining in individual cases. In making those decisions, judges are guided by sentencing guidelines, which already indicate that the courts should treat the age and vulnerability of the victim as an aggravating factor when assessing the appropriate sentence to be imposed.

Let me quote a further bit from the same Court of Appeal judgement that was quoted by Mr Basil McCrea earlier. It is the judgement delivered, I believe, by Lord Justice Gillen on behalf of the court in the Crown v Cambridge in January. As well as the point highlighted by Mr McCrea, it was said:

"There is an unbroken line of authority to the effect that in Northern Ireland the starting point in cases of robbery of householders where violence is used should be 10 years and in appropriate cases a sentence of 15 years is not excessive".

It further says in that judgement that:

"Aggravating factors will include ... Deliberate targeting of vulnerable victim(s)."

Where the law stands and the opportunities that we have are absolutely clear. One of the purposes of sentencing has to be to act as a deterrent. I know from the regular discussions I have with the Lord Chief Justice that judges take that responsibility seriously. There has been considerable work done on guideline judgements, and the Judicial Studies Board has made a number of recommendations to colleagues. That is significant work that is ongoing.

It is absolutely clear that older people are regarded as being, potentially, particularly vulnerable and, therefore, worthy of particular consideration. Perhaps we should not be considering just older people, although Claire Sugden made an entirely reasonable point as to whether older people are those who are older than me, at 65, or include me, at 60. That is a point that this particular proposal is slightly inconsistent on; although, given the difficulties we have in getting any older person's strategy through OFMDFM, it is perhaps not surprising that we have not got that defined. We should perhaps also consider those who are physically disabled and those who suffer from learning disability. There are issues of vulnerability that are not easily stated by regarding just one particular group of one particular age.

As an illustration of what the courts consider around older people as a particularly vulnerable group, let me quote another point from a Court of Appeal guideline judgement:

"It must be brought home to offenders who violate the privacy and security of old people in their homes and expose them to violence that immediate and heavy sentences will follow their detection of conviction."

I believe that that shows the judiciary responding. I also believe strongly that judges are best placed to take account of the specific circumstances in each case and to sentence appropriately.

I have said many times that it is fundamental to our system of justice that judicial discretion is maintained and that sentences are imposed on a case-by-case basis by those who hear the entire case, not by those who read very limited reports in the media of what may be very long cases.

The Assembly knows my views on mandatory minimum sentences. I have always argued that they make no allowance for the exceptional case, and there is always the possibility of such cases. I acknowledge that this clause allows for a lesser sentence to be imposed in exceptional circumstances, but what those circumstances might be is unclear and will have to be determined by case law. Mr Poots said that mandatory minimum sentences would ensure consistency. There is no suggestion that they would ensure consistency; they would merely ensure a mandatory minimum.

When we look at the issue of exceptionality, there may be specific cases. We have had highlighted, previously, the case of the paedophile pensioner, which Mr Allister mentioned on a previous occasion. However, the reality is that we could see large numbers of cases of little more than, or possibly not even, common assault being considered under this. It would be very bad law to have exceptionality considered in so many cases.

We cannot be sure that this clause, in its operation, would not impact unjustly on an offender before the courts. The framework in legislation usually sets out the maximum penalty, not the minimum sentence, for an offence. Of course, there are discrete exceptions for specific offences, but the proposed minimum seven-year sentence in this amendment would apply not to specific offences but to all violent offences, as defined in the proposed clause, at the very serious end of the spectrum and, more worryingly, offences that fall within the very broad definition of:

"an offence which leads or is intended or likely to lead ... to physical injury to a person aged 65 years or more".

A very broad range of offences would be covered, including incidents of very minor physical injuries and, indeed, cases where there was no injury whatsoever. Whatever was said by Mr Poots, physical injury does not mean grievous bodily harm with or without intent; it does not mean actual bodily harm. It would include common assault. It would lead to anything that led to a physical injury. Indeed, during the first Assembly mandate, I was assaulted in the Chamber by another Member who squeezed my arm to the point at which it was painful. That would qualify as physical injury on the definition that is given and, therefore, would be covered by a mandatory seven-year minimum sentence, had I been over 65 at the time.

The outworking could mean that, if two people aged 65 or over had a minor physical altercation — perhaps they had drunk too much on an evening out — both would be liable to seven years' imprisonment unless they could show to the court that there were exceptional circumstances. That shows the potential difficulties of legislating without the normal policy and scrutiny processes being carried through.

I first saw this clause, as other Members did, when it was tabled on 10 June, which clearly did not allow time to properly consider all of the legislative issues or all of the possible unintended consequences. However, I must confess that Jim Allister and Alban Maginness have identified some, and it certainly appeared by the speech he made that Basil McCrea is seeking to join traditional lawyers' voice and is researching for a career at the Bar, because he also spotted some.

Photo of Paul Frew Paul Frew DUP 8:30, 16 June 2015

What type of bar?

[Laughter.]

Photo of David Ford David Ford Alliance

It is clear that there would be many potential difficulties in the application, if this were passed. For a start, the provisions are not restricted to trial on indictment, in the Crown Court. Given all the problems that we have in managing courts, I find it difficult to believe that, when Mr Givan suggests that it is reasonable that all such cases be remitted to the Crown Court for trial, that it would be a realistic and reasonable use of resources, particularly if we consider cases like two 70-year-olds who fall out outside the pub and push each other a bit.

The usual maximum term of imprisonment for a summary offence is six months; in some cases, a maximum of 12, where allowed by law. So, if passed, how would a district judge in a Magistrates' Court enforce these provisions? He or she simply could not do it within existing law. So does that mean that the district judge would be passing up to the Crown Court matters that do not justify hearing in the Crown Court, which would produce significant clogging up of business there and, potentially, end up with Crown Court judges saying that there are exceptional circumstances in a great number of them? As others have said, the clause would also impose a minimum sentence that is not within the range of sentence permitted by law. The definition would require a seven-year sentence to be imposed for some offences with a maximum of two years' imprisonment.

All those issues mean that I cannot support this amendment, not because I believe that those who commit violent crimes against the elderly should not be punished appropriately, but because I believe that the courts are best placed to do this and because the draft revisions are not competent. The "violent offence" reference is far too wide; the reference to "the court" does not deal with the issue as to what level of court; and tabling an amendment at this stage of the Bill is not an appropriate way to introduce legislation on such a complex issue. It is without consultation, consideration or scrutiny by Committee. Changing laws in this way is not, I believe, the correct place for this Assembly. It is not how good law is made. As Justice Minister, I have to consider the integrity of the criminal law as a whole and ensure that it is fit for purpose and not liable to dysfunctional outcomes. There is also, I believe, a similar responsibility on the Assembly. So, whilst I am happy to support Mr Allister's amendment, Mr Ross, I am quite happy to say that it is not possible to accept with any credibility the second amendment on mandatory minimum sentences.

Photo of Alastair Ross Alastair Ross DUP

Just to save the blushes of Mr Allister, in his contribution, Mr Elliott got somewhat confused between the Member for East Antrim and the Member for North Antrim, but I think that we all understood what he meant nevertheless.

I do not intend to respond to all the points that have been made by Members in relation to amendment No 7, not least because a petition of concern has been lodged against it, and also because Mr Givan has adequately addressed some of the criticisms that have been made against it. All I will say is this. In my opening comments, I said that I was always cautious around minimum sentencing, but I will make this point: some of those who waxed lyrical today about opposing minimum mandatory sentences on principle should, perhaps, be invited to examine their own voting records on other Bills, just to see whether they have been entirely consistent in their approach.

I move on to address some of the comments made on amendment No 6, which is the amendment in my name. The Deputy Chair, Raymond McCartney, gave his support to amendment No 6, for which I am grateful. He talked about the amendment being required to fill the gap that there is in allowing for community service. He talked about it being productive in allowing for rehabilitation. I think that Members across the House want to see that to ensure that there is rehabilitation, as well as punishment, for offenders. Alban Maginness also spoke in support of the amendment and talked about the opportunity that there is for employment. That is a point that Mr Douglas made as well. What we want to see is people who have served their time in prison being able to get out and go into meaningful employment. None of us wants to see them living on welfare at the taxpayers' expense. We want to see them be productive, turn their lives around and get into work. That is something that Members across the House support.

Mr Elliott called the amendment "interesting", which always gives me a little bit of concern, but I think that he was generally supportive. He said that it was a positive contribution and he talked about the need for examining alternatives and different means of punishment and sentencing. In the justice seminars that we have been running over the last number of months, the idea of looking for suitable diversions, if the offence is of a low enough magnitude, has been discussed. Alternatives to prison are something that may be appropriate for very low-level, first-time offenders. It is an interesting area that, undoubtedly, the Justice Committee will look at again in the future: what works best for outcomes and what is most cost-effective for the taxpayer as well.

Mr Dickson, in his support, talked about the early release conditions, and that is something that we will have to work out. He talked it being a restorative approach, and I think that it is probably right to ensure that the end of a sentence can be carried out in the community, but still paying back that debt to society and still seeing out the full term of the sentence, which is important. He talked about the need for collaboration; that is hugely important no matter what we do. In this instance, we need to see collaboration between the Department, the Probation Board and the Prison Service, and that is exactly the type of model that I will be proposing.

Mr Sammy Douglas talked about the strict licence conditions and how we should get low-risk offenders back into society by transitioning them. That is the very point that we are trying to make with this amendment: it is a way of transitioning offenders back into normal life in a way that is managed by the Probation Board and allowing offenders to repay their debt to society in a meaningful way. He then went on to discuss some of the other articles of the Criminal Justice (Northern Ireland) Order 2008. Article 26 is about curfew and article 30 about recall. It was the discussion that we had on those articles that inspired the amendment in the first instance.

We then had a contribution from Mr McCrea in the corner.

There is an old saying that a little knowledge is a very dangerous thing, and Mr McCrea certainly tried to demonstrate his little knowledge when it came to amendment No 6 and, of course, in other contributions that he made during interventions. He said that the amendment did not do very much. At present, there is a gap under article 19 of the Criminal Justice Order 2008. There is no provision in it for the Department or the Probation Board to ensure that somebody who is released early from prison has to do something productive. That is why the amendment was tabled, and, rather than doing very little, it is a significant change that informed Members have supported this evening. He talked about a lack of detail on what it actually does. He mentioned the need to consult the Probation Board and asked "Why?". It is important that we consult the people who know what they are doing. The point that he tried to make on amendment No 7 was that we should not interfere with the judiciary because they know better than we do: why does he not see the same merit in amendment No 6, through which we will talk to the Probation Board because it has on it the people who know best and are there to monitor offenders? I think it entirely appropriate that the Minister and Department consult the Probation Board to ensure that the conditions of any early release are absolutely watertight.

The Member also said when addressing amendment No 7 that we should not be prescriptive yet criticised the lack of prescription in amendment No 6. That is not particularly consistent. He then said that he did not know anything about the amendment and what it would do. I draw his attention to three documents, the first of which is the Hansard report of the meeting that we had with officials on the issue. It is not some sort of secret document; it is on the Internet and is available in the Library, should he have wished to consider the matter further. I draw that to the Member's attention, and I will furnish him with the documents after the debate, if he wishes. I draw his and perhaps other Members' attention to a part of the transcript in which we dealt specifically with the Probation Board. Mr Doran, responding to a question that I put to him about the requirement for some sort of community service, said:

"If there are conditions on their licence, they will be required to do it. However, if there are no conditions, because they are still technically prisoners on early release, we cannot compel them to undertake a programme. They will be subject to curfew, as Alan said."

He went on to say:

"Our colleagues in the South have a scheme for undertaking reparative work. They have legislation there; Alan referred to community return. I met colleagues from the South last week, and it is a very impressive scheme, through which people get early release and undertake community service. We do not have the legislative authority to do that. It is something that PBNI would be keen to see at some stage in the future, but it is not available at the moment."

The amendment is offered because the Probation Board has said that it is something that, it thinks, would be valuable in the future.

The second document that I draw the Member's attention to is a report of the Thornton Hall project review group, which is also available on the Internet. Again, it is not some sort of secret document. It goes into some detail about the Irish scheme, which is called earned temporary release into community service. The report talks about the reason that you would have such a scheme. It goes into detail on what the scheme would look like and some of the conditions that would be attached to it. I will furnish the Member with that as well.

The third document is the legislation in the Irish Republic. The Minister suggested that it was unusual for the DUP to look to the Irish Republic for a model, but I can assure the House that I will look anywhere in the world where I think there is an innovative approach to justice issues. If it is something that, I think, we can replicate in Northern Ireland, I will certainly give consideration to it. I will furnish the Member in the corner with that legislation as well.

The Member also made a rather bizarre intervention in which he tried to envisage a scene from 'Cool Hand Luke' in which there were people in chain gangs having to do work in, I think he said, easily identifiable uniforms. Bringing it down to that level adds little value to the debate. We are having a proper discussion that every other Member sees value in and views as a progressive policy that is tackling a real issue, yet the Member tries to bring in such spurious points. Of course, Mr McCrea is not opposed to uniforms: I remind the House that this is the man who wore a red tie as a uniform for about three or four years when he was first elected, so he knows something about it.

The contribution from Mr McCrea really was of little value to the House. If he had wanted to make a proper contribution on amendment No 6, he should at least have tried to inform himself on its detail.

Photo of Basil McCrea Basil McCrea NI21

What colour of tie are you wearing, as a matter of interest?

Photo of Alastair Ross Alastair Ross DUP

Indeed. With my red tie, I have clearly been inspired by Mr McCrea.

Photo of Alastair Ross Alastair Ross DUP

I will ensure that I never wear it in the House again, if that is the comparison that is being made.

Ms Sugden talked about the policy being progressive. Some people are perhaps uneasy with that terminology. I think that it is a progressive policy, but the value in the amendment is that it ensures that prisoners have to see out their entire sentence. That gives confidence to the community, who could be concerned that prisoners will be released early from prison without having to see out their sentence. It also transitions an offender into normal life in a managed way, and, of course, the increased value is that the taxpayer does not have to pay for that. It is a progressive policy, and most people in society will see value in it.

The Minister talked about this being the easy amendment to deal with. I am glad that that is the case. He said that it was useful, and, as a Committee, we would be interested in working with him and the Probation Board in the future to work up some of the detail. I certainly think that there is merit in it. I am pleased that there has been support from all sides of the House for the amendment, and, at the risk of losing any support, I shall stop there, and we can proceed to the votes.

Amendment No 6 agreed to.

New clause ordered to stand part of the Bill.

New Clause

Amendment No 7 proposed:

After clause 89 insert

<BR/>

&quot;Sentencing for violent offences against older people


 


89A.—(1) This section applies where an individual is convicted of a violent offence and that individual was aged 18 or over when the offence was committed.


 


(2) The court shall impose a custodial sentence for a term of at least seven years (with or without a fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.


 


(3) For the purposes of this section &#x0027;violent offence&#x0027; means an offence which leads or is intended or likely to lead to the death of a person aged 65 years or more or to physical injury to a person aged 65 years or more and includes an offence which is required to be charged as arson (whether or not it would otherwise fall within this definition).


 


(4) If there are exceptional circumstances which justify?—


 


(a) the imposition of a lesser sentence than that provided for under subsection (2), or


 


(b) the exercise by the court of its powers under section 18 of the Treatment of Offenders Act (Northern Ireland) 1968,


 


the court shall state in open court that it is of the opinion that such exceptional circumstances exist and the reasons for that opinion.


 


(5) Where subsection (4) applies the Chief Clerk shall record both the opinion of the court that exceptional circumstances exist and the reasons stated in open court which justify either the imposition of a lesser sentence or the exercise of its powers under section 18 of the Treatment of Offenders Act (Northern Ireland) 1968 as the case may be.


 


(6) For the purposes of subsection (2) &#x0027;custodial sentence&#x0027; shall not include a sentence in relation to which the court has made an order under section 18 of the Treatment of Offenders Act (Northern Ireland) 1968.


 


(7) For the avoidance of doubt, an offence falling within the definition of subsection (3) is a violent offence for the purposes of this section whether or not there is evidence that any individual who is convicted of such an offence knew or suspected that any person who dies or sustains physical injury, or any person who is intended or likely to die or sustain physical injury, is aged 65 years or more.


 


(8) In section 36 (reviews of sentencing) of the Criminal Justice Act 1988 in subsection (9)(d) after &#x0027;2015&#x0027; insert the words?—


 


&#x0027;and a sentence required to be imposed by virtue of section 89A of the Justice Bill 2015&#x0027;.&quot;. — [Mr Poots.]

Photo of Mitchel McLaughlin Mitchel McLaughlin Speaker

A valid petition of concern was tabled today in relation to the amendment. In accordance with Standing Order 28(1), no vote may be held on a matter that is the subject of a petition of concern until at least one day after the petition of concern has been presented. The business on today's Order Paper, therefore, cannot be completed tonight. The Business Committee met this evening and agreed that unfinished business from today's sitting would be concluded at the start of business on Monday 22 June 2015.

Photo of Jim Allister Jim Allister Traditional Unionist Voice

On a point of order. In light of that announcement, can you clarify whether it will now be possible to table further amendments on the undebated parts of the Bill by Thursday morning?

Photo of Mitchel McLaughlin Mitchel McLaughlin Speaker

It is an interesting point, but Monday will be a continuation of today's business, so there will be no further opportunity. We are concluding today's business, as it happens, on Monday.

The debate stood suspended.

Adjourned at 8.47 pm.