Clause 6 — Duty Of Director Of Public Prosecutions To Refer Certain Matters To Police Ombudsman

Orders of the Day — Justice (Northern Ireland) Bill [Lords] – in the House of Commons at 6:47 pm on 26th April 2004.

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Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke 6:47 pm, 26th April 2004

I beg to move amendment No. 22, in page 3, line 38, after 'shall', insert 'within his discretion'.

Photo of Michael Lord Michael Lord Deputy Speaker (Second Deputy Chairman of Ways and Means)

With this it will be convenient to discuss the following amendments:

No. 17, in page 4, line 2, at end insert—

'(4AA) The Director shall refer to the Ombudsman any allegation coming to his attention that a police officer—

(a) may have committed a criminal offence; or

(b) may, in the course of a criminal investigation, have behaved in a manner which would justify disciplinary proceedings,

which is not the subject of a complaint, unless it appears to the Director that the Ombudsman is already aware of the allegation.'.

No. 18, in page 4, line 3, after '(4A)', insert 'and (4AA).'.

No. 19, in page 4, line 6, leave out from 'insert', and insert ', (4A), or (4AA),'.

No. 20, in page 4, line 11, leave out from 'substitute' to end and insert ', (4), (4A) or (4AA).'.

Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke 7:00 pm, 26th April 2004

I think that the Minister's reply on the amendment will be interesting. He spent 40 minutes or so arguing against an amendment on the ground that it was inconsistent with the criminal justice review. Now he will have to stand on his head and argue against an amendment that seeks to make the Bill consistent with the criminal justice review. He will argue, I anticipate, unless I convince him by the power of my arguments, for a clause that is inconsistent with the review.

The aim of amendment No. 22 is self-explanatory. It is to give the Director of Public Prosecutions for Northern Ireland discretion as to whether to submit certain matters to the police ombudsman. Interestingly, the amendment is linked with two amendments that were tabled by Mr. McGrady—I presume that Mr. Mallon will argue for them—that seek to do precisely the opposite. If I understand the Social Democratic and Labour party amendments correctly, they, as it were, firm up the obligation of the DPP to refer to the ombudsman.

The essence of the argument for amendment No. 22 is that the Bill—the same applies to the hon. Gentleman's amendments—is inconsistent with the criminal justice review. That review did not demand, or even remotely suggest, that the DPP should be obliged to refer to the police ombudsman any matter that appeared to him to indicate that a police officer may have committed a criminal offence, or may in the course of a criminal investigation have behaved in a manner that would justify disciplinary proceedings.

Paragraph 4.132 of the review states that article 6(3) of the Prosecution of Offences (Northern Ireland) Order 1972 should

"be supplemented with a provision enabling"—

"enabling" is the key word, not "compelling"—

"the prosecutor to refer a case to the Police Ombudsman for investigation where he or she is not satisfied with an Article 6(3) response."

The review recommended not that the DPP should be required under an obligation to refer certain matters to the ombudsman, but that he or she should be able to do so in circumstances that are carefully defined: where he or she is dissatisfied with the reply received under article 63). That in itself prompts the question: what did the review conclude about article 6(3)? Paragraph 4.131 states:

"We recommend that the powers contained in Article 6(3) be retained and that the head of the prosecution service"—

I emphasise that: the head of prosecution, not the police ombudsman—

"should make clear publicly the service's ability and determination to prompt an investigation by the police of facts that come into its possession, if these appear to constitute allegations of the commission of a criminal offence, and to request further information from the police to assist it in coming to a decision on whether or not to prosecute."

In other words, article 6(3) clearly states that primacy lies with the DPP, not with the police ombudsman. The Bill, to be reinforced by the SDLP amendments, contradicts utterly the conclusions of the criminal justice review, and therefore, according to the arguments recently advanced by the Minister, is unacceptable.

In essence, the review gives the DPP, not the ombudsman, primacy in investigating matters to which clause 6 refers. The review recommended that the powers of article 6(3), which give primacy to the DPP, should be retained. The only duty that the review recommended should be imposed on the DPP was a duty to ensure that any allegations of malpractice by the police are fully investigated. The Bill, therefore, goes appreciably further than the review.

In Committee, the Minister said:

"Recommendations were made that the prosecutor and the police should operate effectively together, with the prosecutor being involved in a case early", but I think that we are entitled to be cynical about the Minister's words. It seems that spin is at work. That is not what the review recommended. It recommended retaining the powers of article 6(3), which give primacy to the DPP's investigative and prosecutory role, and recommended that the police ombudsman should become involved only if the DPP were dissatisfied with an article 6(3) response. The SDLP amendments, like the Bill, try to turn the criminal justice review on its head.

In Committee, the Minister said:

"The clause was therefore drafted to ensure that the discretion lies with the ombudsman, as is right in cases of potential police misconduct", but that is not what the review says and it is not the situation that should prevail. Minor police misconduct should be resolved by internal disciplinary processes. Other police misconduct, like all misconduct, should be subject to prosecution if the DPP believes that there is a case to be answered that is substantiated by evidence that will stand up in court. The external assistance of the ombudsman should be sought only if the DPP believes that the police have not fully investigated, or are not fully investigating allegations. That should be a matter for the DPP alone to decide, just as the criminal justice review recommended.

The Bill as it stands allows the DPP no discretion. Under the Bill, if any matter appears to the DPP to indicate that an offence has been committed, he is obliged to refer it to the ombudsman. He cannot exercise any discretion, entirely contrary to the criminal justice review.

The Minister said that

"the current terms of the clause are no reflection whatever on the professionalism of the Director of Public Prosecutions."—[Official Report, Standing Committee D, 25 March 2004; c. 68–69.]

That opinion can be disputed, but we can be certain that the clause undermines the role of the DPP and advances the role of the ombudsman, in contradiction of the criminal justice review. The reason for that is clear. The explanatory notes explain it. They state that the change is in line with the undertaking of the Government in the joint declaration published in May 2003 and referred to at page 33 of the updated implementation plan. The amendment serves the simple purpose of moving away from the wheeling and dealing that resulted in the Hillsborough joint declaration, and makes the Bill consistent with the criminal justice review.

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I wish to speak to amendment No. 17, to which amendments Nos. 18, 19 and 20 are consequential. I raised the matter on Second Reading. It has also been raised by my hon. Friend Mr. McGrady. On both occasions, we were advised that the Government would think about it and, to use the vernacular of this evening, come back to us on it.

I pursue the matter in the interests of seeing where "back" leads to, because I am still not clear about the Government's position.

The matter is important for two reasons. I consider it even more so, having listened to the analysis of Mr. Hunter, which tried to rewrite legislation all in one go and transfer from the office of the ombudsman to the office of the Director of Public Prosecutions the ombudsman's entire role in one fell swoop. Of course, that was so transparent that people will realise that very quickly.

First, in the wording that we have presented:

"The Director shall refer to the Ombudsman any allegation coming to his attention", so that, in effect, the DPP would be able to give an early-warning signal if there were going to be a possible problem. Let us consider some incidents in the past in Northern Ireland that are still unresolved. I refer specifically to the Finucane case—the murder of Patrick Finucane. For 15 years, there might have been a resolution had there been an early-warning signal process, but 15 years later, that matter is still not resolved. It is of weighty contention in relation to the report of Judge Corry. Again, action on that is being awaited. Had the Director of Public Prosecutions been able to work in such a way as to give an early-warning signal, and immediately refer

"to the Ombudsman any allegation coming to his attention", many past problems might well have been short-circuited.

On that basis alone, it would be worth the Government's while to adopt amendment No. 17, but there is a second element to the matter. Primacy does not rest with the Director of Public Prosecutions; primacy on this matter rests with the ombudsman, and the judgment should be for the ombudsman. The Bill as it stands makes judgment reside with the DPP, referring to a matter that "appears to the Director", rather than saying, as I believe it should, that the DPP should refer any allegation. He should not just use his judgment, but refer any allegation that he is aware of.

There are those who might say that that is too neat a point to be making in legislation, but given the history of what has happened in Northern Ireland, the difficulties that we have had and the way in which efforts have been made to create a criminal justice system that is ahead of anything in England or Wales, or in the Republic of Ireland, we should be very careful with points of this nature.

The Government should respond to this matter. They should welcome an early-warning system and not allow in any way primacy to be transferred from the ombudsman to the DPP. For that reason, I recommend amendment No. 17 to the House.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

I was a little agnostic on amendment No. 22, but having listened to Mr. Hunter, I do not find it unreasonable to include the words that he outlines. If I had just walked in, having travelled the length of the country—from Kirkwall, for example—and had not known the political affiliation or the status of the hon. Member for Basingstoke, I might have mistaken him for a Minister, from listening to his argument. The argument that he put forward was similar to the kinds of argument that one hears from the Government, in terms of language and rationale.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

I was making it as a morally neutral statement, in the hope that I would persuade the Minister, in responding, to acknowledge—on a matter of judgment, not of principle—that the argument made by the hon. Member for Basingstoke makes sense.

I shall also be interested to hear what the Minister says on the position of Mr. Mallon and amendment No. 17. Having listened to his argument, I am not entirely clear what the amendment would add to the legislation as it already stands.

Photo of Nigel Dodds Nigel Dodds Opposition Whip (Commons) 7:15 pm, 26th April 2004

As the Bill currently stands, clause 6(3) sets a very low threshold indeed. It says:

"The Director shall refer to the Ombudsman any matter which—

(a) appears to the Director to indicate that a police officer—

(i) may have committed a criminal offence; or

(ii) may, in the course of a criminal investigation, have behaved in a manner which would justify disciplinary proceedings".

What the Government propose is already a low threshold in terms of reference by the DPP to the police ombudsman.

Mr. Mallon seeks to lower the threshold completely—almost so that there is no threshold at all. The DPP would exercise no discretion whatever under amendment No. 17, by whose terms, as I understand them, any allegation at all—including that a police officer might have committed a criminal offence—would have to be automatically transferred to the police ombudsman. That is not reasonable on any terms. Surely it is entirely reasonable that the DPP should make some sort of assessment of whether the allegation in question is entirely vexatious, spurious or trivial, rather than having to transfer every single allegation, however vexatious or trivial, to the ombudsman.

Photo of Lembit Öpik Lembit Öpik Shadow Secretary of State for Northern Ireland, Northern Ireland Affairs, Shadow Secretary of State for Wales, Welsh Affairs

That is my understanding, too, of what amendment No. 17 would do. Does the hon. Gentleman agree that if that is the correct understanding—and I may have misunderstood—it provides every opportunity to reduce the credibility of the system and to create a moribund environment in which many unproven cases hold up the genuine cases that we would like to see explored?

Photo of Nigel Dodds Nigel Dodds Opposition Whip (Commons)

I agree with the hon. Gentleman. That is exactly the danger, and exactly why there needs to be discretion for the DPP. Mr. Hunter set out very cogently the arguments in favour of the DPP's having discretion on this, and I shall not rehearse those arguments except to emphasise that we are dealing with an issue on which the Government's proposals clearly fly in the face of the criminal justice review. The Minister has time and again today prayed in aid the criminal justice review to support his proposals, but on this proposal, which clearly runs counter to the criminal justice review, the Government are proceeding nevertheless. Indeed, that criticism can be doubly applied to the hon. Member for Newry and Armagh, because he wants to move even further away from the terms of the criminal justice review.

That brings us back to the fundamental point that we must look at the origins of the Bill: the Hillsborough talks that led to the joint declaration.

As with the amendment that dealt with removing the veto power of the Lord Chief Justice, I should be interested to know from where exactly the pressure has come, what representations have been made and why the Government feel that, on this occasion, it is right to depart from the criminal justice review, given that they have carefully followed its recommendations and claims in respect of other matters.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

I begin by welcoming Mr. Carmichael, on whose travels we have had regular bulletins. I am in the interesting position of being pulled in one direction by the Democratic Unionist party and in another by the Social Democratic and Labour party, which might indicate that we have struck the right balance between the two in this clause.

The DUP amendment would give the Director of Public Prosecutions discretion as to whether he should refer a case of suspected police malpractice to the police ombudsman. I should like to make it absolutely clear at the outset—as Mr. Hunter pointed out, I said this in Committee—that the current terms of the clause are no reflection whatsoever on the professionalism of the Director of Public Prosecutions. I am happy to endorse fully the independence and the impartiality of the DPP, in whom the Government have every confidence.

Contrary to what the Opposition say, the Government believe that the current clause accurately meets the criminal justice review's recommendation, as stated in paragraph 4.133, that a duty be placed on the DPP to ensure that any allegations of malpractice by the police are fully investigated. How would that work out in practice? Let us say that the DPP is working on a case file from the Police Service of Northern Ireland and is examining it to determine whether the case should be prosecuted. In the course of this process, he comes across something that suggests that a police officer may have acted improperly. I am talking here not about evidence being presented as part of the case, but about uninvestigated evidence: incidental details, inconsistencies, niggling questions, worrying gaps in the evidence or in procedure, or allegations made by witnesses—a point to which I shall return. In such a situation, he passes these matters to the police ombudsman. After all, he does not have the responsibility or the resources to investigate them and to find out whether there is any substance to them; that is the proper role of the police ombudsman. Nor, of course, is it the responsibility of the police to investigate themselves—that is why we have a police ombudsman. It is her responsibility to investigate police wrongdoing.

The police ombudsman then investigates the matter. It may turn out to be nothing, or a very serious matter indeed. If there is evidence that could lead to prosecution, she will pass the file to the DPP, who will take a decision on prosecution based on the properly collated evidence placed before him. What the provision does not do is to make the police ombudsman investigate suspected police wrongdoing that has already been investigated once, and in respect of which the DPP has been asked to take a decision about prosecution. It is not a circular process and it does not create double jeopardy. The DPP does not need to refer to the ombudsman matters of which she is already aware.

Nor does the provision allow the DPP to take a decision on the prosecution of a police officer based on a few scraps of evidence that he happens to come across in the course of his work. The fundamental premise on which the provision is based is that the DPP's job is to take decisions about prosecutions on an informed basis, and what we are talking about here are uninvestigated suspicions. I should also make it clear, particularly for the benefit of my hon. Friend Mr. Mallon, that this provision does not allow the DPP to pick and choose which suspicious matters he passes to the police ombudsman. The DPP does not have discretion over whether he makes a referral; he does, however, have to keep his eyes open and to identify suspicious matters as such.

Some Members are concerned that that means that the DPP has no discretion. As I have explained, he ought not to be given responsibility for sorting out the wheat from the chaff; that is not his job—I doubt whether he would want it—but the police ombudsman's. He exercises his judgment in identifying matters for referral; he is not an automaton. Conversely, my hon. Friend Mr. McGrady complained in Committee, and my hon. Friend the Member for Newry and Armagh complained this evening, that the clause as drafted gives the DPP too great a discretion over referrals. Again, that is not the case. The clause is set at a very low threshold, as Mr. Dodds rightly said. I stress that the DPP must refer to the ombudsman all matters—a clearly comprehensive term—that appear to indicate that a police officer may—

Photo of Mr Seamus Mallon Mr Seamus Mallon Social Democratic and Labour Party, Newry and Armagh

I thank the Minister for giving way. In fact, the phrase used is

"any matter which . . . appears to the Director", so the judgment lies with the DPP. That is the difference, and that is why the Minister's analysis is wrong. That phrase allows the judgment to rest with the DPP, which it should not.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office

As I said, the DPP refers to the ombudsman matters that indicate that a police officer might have committed a wrongdoing. My hon. Friend should take cognisance of the observation of the hon. Member for Belfast, North that, in fact, that is a very low threshold. Clearly, such matters have to come to the notice of the DPP in order for him to refer them.

As I was saying, the DPP must refer to the ombudsman all matters that indicate that a police officer might have committed a criminal offence, or might have behaved in the course of a criminal investigation in a manner that would justify disciplinary proceedings. Frankly, that covers anything and everything suspicious. For the record, it also covers allegations of wrongdoing, which by their very nature indicate that someone might have done something wrong.

As I said at the outset, I believe that we have struck the right balance and that we are conforming with the criminal justice review. I therefore urge the House to oppose the amendment.

Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke

I listened to the Minister with great interest and although I would like to agree with him, I cannot. He offers an interpretation of the Bill, but it is not a compelling one or the only one. Looking again at proposed new subsection (4A)(a)(i) and (ii), it seems clear that the Bill as it stands will give the DPP no discretion whatsoever. If he believes that the police have committed any criminal offence or wrongdoing, he is obliged to pass matters on to the ombudsman. That is a retrogressive step, so I shall press the amendment to a Division.

Question put, That the amendment be made:—

The House divided: Ayes 137, Noes 248.

Division number 145

See full list of votes (From The Public Whip)

Question accordingly negatived.