Clause 5 - No proceedings while application for certificate pending
Northern Ireland (Offences) Bill
6:00 pm
Lady Hermon (North Down, UUP)
What a hornet’s nest clause 5 is. The amendments in my name are amendments Nos. 253, 255 and 256. Clause 5 as it stands is curious. Subsection (1) states:
“Where a person applies for a certificate of eligibility ... no proceedings may be commenced for ... an offence to which this Act applies; or ... an offence committed before 10th April 1998”
until the application for the certificate of eligibility has been determined. Goodness knows how long that will take. At present, subsection (1) guarantees that a person who may be guilty of terrible crimes never has to put their foot through the door of a court.
The purpose of amendment No. 253 is to ensure that proceedings must at least have commenced. The applicant—the person who is guilty of the most terrible of crimes—must at least have darkened the door of a court to make a court appearance. The amendment would omit lines 22 to 28. The clause would instead read that
“any proceedings already commenced ... are to be suspended until the application is determined.”
The effect of the amendment would be to oblige the applicant, who will get an amnesty for committing the worst of crimes, to step into court and allow us to see his or her face.
This morning, the Minister was asked to reflect on the intrinsic contradiction in clause 3. Why do the Government prefer to give beneficial and preferential treatment to those who are on the run compared with those in the security forces? The Minister was at pains in the early stages in Committee to emphasise what a difficult decision that had been to take, but, on balance, he was convinced that police officers should also be included in this ghastly piece of legislation.
The Minister, when pushed, indicated to the Committee that it was his understanding that members of the security forces would be granted bail and would not have to linger at Her Majesty’s pleasure in prison. However, if the Minister and other Committee members care to turn their attention to subsection (2), it states:
“Where proceedings are adjourned by virtue of subsection (1)(b)”—
in other words, where an application has been made—
“the court has the same powers to remand the person (in custody or on bail) as it has in the case of an adjournment for any other reason.”
That is the Crown court or other criminal courts in Northern Ireland, not a special tribunal or the certification commissioner.
Therefore, the Minister’s assurance to the Committee this morning is not consistent with clause 5(1)(b) and subsection (2), which expressly preserve the right of the Crown court—the ordinary criminal court—to remand members of the security forces in custody. I urge the Minister to provide much better clarification by accepting my amendment to ensure that the wording does not give OTRs preferential treatment, either accidentally or on purpose.
Amendment No. 255 would ensure that the ordinary courts in Northern Ireland—not this awful parallel system that we are building here—would not take into account the suspension of proceedings when determining whether to grant bail.
The decision to grant bail should be determined on the seriousness of the offences that the applicant is alleged to have committed. The fact that the applicant is seeking to benefit from an amnesty should not sway the court and should not be taken into account when the Crown court is deciding whether to remand an individual to custody or to grant bail. That covers amendment No. 255.
Finally, on amendment No. 256, there are maximum time limits for keeping the defendant in custody between an application for a certificate and a decision on its completion. The amendment’s purpose is to ensure that the maximum time limits on which a defendant can be remanded in custody are suspended at the same time, so that those maximums would not apply until the application for a certificate of eligibility was determined.
Together, the amendments are important as they would mean a court appearance by all defendants. The very least such people should do before they benefit from the amnesty is put their foot through the door of the court so that we could see their faces before they were granted clearance for the most awful crimes committed in Northern Ireland’s history.