Clause 7 - Exemption from arrest etc.
Northern Ireland (Offences) Bill
10:00 pm
Jeffrey M Donaldson (Lagan Valley, DUP)
The amendment is critical—not that many of the other amendments are not equally critical—to maintaining any credibility in the process. Under clause 3, when an application is made for a certificate, a senior member of the Police Service of Northern Ireland is required to state in writing
“that members of the Service have, and have had since before 1st November 2005, reasonable grounds for suspecting the applicant to be guilty of an offence to which”
the Bill applies. That provision places an obligation on the police not only to have reasonable grounds for suspecting, but subsequently to follow through on the issuing of a certificate of eligibility with an investigation into the matters that are to be the subject of the tribunal hearing.
In clause 7, however, serious limitations are applied to the powers that the police can exercise during the course of their investigation into the criminal or terrorist activity in which it is believed that the applicant has been involved. Once a certificate of eligibility has been issued, none of the following powers may be exercised in respect of an applicant with a certified offence:
“(a)a power of arrest or detention;
(b)a power of entry or search;
(c)a power to remand in custody or on bail;
(d)a power to take fingerprints or samples.”
Each power is a crucial to a police investigation, and to the capacity of the police to investigate rigorously an offence that they believe a perpetrator may have committed. To remove those powers would significantly undermine the capacity of the police to achieve convictions under a process that passes for justice. That is why we tabled our amendments.
In amendment No. 19, we ask the Committee to add to subsection (2)(a), so that the power of arrest or detention would remain in place for at least 28 days after the police had begun their investigation into an offence that they had reasonable grounds to believe the perpetrator may have committed. We believe that the police ought to have that power, because arrest and detention affords them the opportunity to question the suspect. We know that the questioning process is a key element in any police investigation. We chose 28 days because that is precisely the time that has been agreed by the House in respect of the Terrorism Bill for the detention of terrorist suspects. In the interests of retaining a degree of continuity and bringing, at least, some reality to the process, we felt that 28 days was appropriate.
In amendments Nos. 20, 21 and 22, we propose that the power of entry or search, the power to remand in custody or on bail, and the power to take fingerprints or samples should remain at the disposal of the police. Again, we believe that those powers are crucial to ensure that the police have the capacity to carry out a thorough investigation into the offences that they believe may have been committed. Under the clause as drafted, a person who holds a certificate is exempt from those powers. That makes it virtually impossible for the police to carry out a proper investigation into the offences.
In a sense, the system is designed to fail to convict those believed to be involved in offences. The police have limited investigatory powers under the Bill, so they will be seriously hampered in pursuing their investigations of those offences. The Bill not only creates a situation whereby people will not serve a day in prison for their offences, but it will be virtually impossible for the police to secure a conviction. In the absence of conviction, no remedy will be available through the revocation of the licence in the event of a later breach of that licence. We therefore propose that the power of arrest is limited to 28 days and that the other exemptions are deleted. The amendments would, at least, allow a proper investigation to be held and a proper charge or charges to be brought against the perpetrator.
Subsection (3) provides:
“Where a person holds a certificate of eligibility, no power to obtain information exercisable in relation to criminal proceedings is exercisable”.
In amendment No. 23, we propose deleting that subsection.
The inability to arrest or, presumably, question a suspect—or in this case, someone believed to be guilty of an offence—will mean that inferences that might be drawn from silence, for example, will not be allowed. That means that a defendant under the scheme will not be in an equal position to a defendant who can have his silence at interview used against him. Because the police cannot arrest and detain perpetrators in these cases, they will lose the ability to interrogate a defendant who is brought in, questioned and then remains silent. That means that the silence of a defendant cannot be raised in court and used to disadvantage him in a trial under the scheme.
The Bill, as drafted, places the police at a significant disadvantage. It not only takes massive shortcuts through the judicial process and creates all kinds of new precedents for the British legal system, but it seriously undermines the capacity of the police to investigate crime. That is relevant to cases that may arise in the short term. Also, because the Government have not applied any time limit to the legislation—we touched on that point earlier—if the police, in the cold cases review that they are currently conducting, have reasonable grounds to suspect that someone is guilty of a serious crime, their current powers to arrest and detain an individual and take fingerprints and so on will be removed from them.
What about the victims who were promised that, in the cold cases review, no stone would be left unturned to find out the truth and to bring to justice those responsible for the perpetration of terrible crimes? The police will lose many of the powers that would have enabled them to achieve that objective. We believe that that is wrong, and that is why we tabled the amendments. I hope that the Committee will support them.