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Clause 5 - Duty of Director of Public Prosecutions to refer certain matters to Police Ombudsman

Justice (Northern Ireland) Bill [Lords] – in a Public Bill Committee at 9:10 am on 1st April 2004.

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Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party 9:10 am, 1st April 2004

I beg to move amendment No. 34, in

clause 5, page 3, line 32, leave out 'may have' and insert 'has'.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss the following amendments: No. 35, in

clause 5, page 3, leave out lines 33 to 35.

No. 36, in

clause 5, page 3, line 38, at end insert

'No reference shall be made in subsection (4A) if the conduct giving rise to the intended referral took place after the coming into force of this section.'.

No. 68, in

clause 5, page 3, line 38, 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. 69, in

clause 5, page 3, line 39, after '(4A)', insert 'and (4AA)'.

No. 70, in

clause 5, page 3, line 42, leave out from 'insert', and insert ', (4A), or (4AA).'.

No. 71, in

clause 5, page 4, line 4, leave out from 'substitute' and insert

', (4), (4A), or (4AA).'.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

It is a pleasure, Mr. Benton, to get the sitting under way, just as I did last week. On that occasion, you had occasion to point out that I was speaking to the wrong amendment. I am speaking to the right amendment today, but one of the proposals contains a simple but important error. Amendment No. 36 should refer to ''before'', not

''after the coming into force of this section.''

The amendment raises an important issue, however, and it is particularly appropriate to touch on it this morning in view of what is going to happen in this place later today.

The purpose of the amendment is to prevent referrals to or investigations by the police ombudsman in respect of matters from the past—it is as simple as that. There are far too many examples of people are trying to refight old battles, or even to rewrite history. We shall see that more clearly later

today, but constant efforts are being made to encourage the ombudsman to look into past events rather than to focus on the present and the future, as he ought to.

Indeed, only a few weeks ago, the Chief Constable of the Police Service of Northern Ireland said that he simply does not have the resources to carry out all these inquiries into the past that people wish to raise. He is having enough difficulty finding the resources to police society adequately today and he simply cannot cope with looking into a whole host of past events as well.

To those hon. Members who keep expressing the wish to dig up the past and to rewrite history, I say that they are not doing a service to society today; they are contributing to the undermining of the effectiveness of the police service. It is astonishing that those hon. Members who urge the police to conduct lots of inquiries into the past are only a second later complaining about there not being adequate policing resources in their neighbourhoods to deal with existing crime. They need to think about that. Amendment No. 36 would ensure that the clause had effect only with regard to the future, not the past.

Photo of Andrew Robathan Andrew Robathan Conservative, Blaby

What the right hon. Gentleman says is important in relation to Government policy. Do not the Government appear always to be leaning in one direction to pacify a particular section of the community? For instance, they have not instigated a long inquiry on Warrenpoint.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

The hon. Gentleman makes a good point and we will reflect on it later in our proceedings. People leave out of the calculation the fact that their perspective becomes warped in these matters. It is worth everyone recalling that nine out of 10 of the deaths that occurred during what are called the troubles were caused by terrorist organisations, and that two thirds of those were caused by republican terrorists rather than the so-called loyalist terrorists. Since the ceasefires, not a single death has been caused by soldiers or policemen.

Those who constantly make complaints and call for inquiries devote their attention almost entirely to the 10 per cent. and ignore the 90 per cent. That imbalance sends the wrong signals to society and enables those who are guilty of 90 per cent. of the killings to construct a make-believe world in which they invent spurious justification for their actions and try to divert attention from the nine tenths for which they are responsible. I do not know why hon. Members with an honourable record in opposing violence lend themselves to that, but that is another question that we must pursue elsewhere. Those hon. Members who support the campaign to conceal the nine tenths and focus purely on the one tenth are not benefiting themselves, their party or the society that they claim to represent. That is the wider issue behind amendment No. 36.

Amendment No. 35 would delete proposed new subsection (4A)(a)(ii) and omit the reference to behaviour that would ''justify disciplinary hearings''.

That reference is inappropriate and misconceived; matters that are appropriate for disciplinary proceedings should be dealt with through the normal disciplinary channels and should be in the purview of the Chief Constable rather than the police ombudsman.

I shall briefly comment on other amendments in this group, particularly those standing in the name of the hon. Member for South Down (Mr. McGrady). If the Government accepted amendment No. 68, they would create an utterly impossible situation. The amendment would place a duty on the Director of Public Prosecutions to refer any allegation to the ombudsman. Everybody knows that hosts of allegations are made—it is a deliberate tactic of criminals and those associated with terrorist organisations to make as many allegations and complaints as possible to muddy the waters and waste police resources.

I ask the hon. Gentleman, whom I am sure will speak shortly, why he has tabled an amendment that would render the police ombudsman ineffective by putting on her desk a shower—in every sense of the word—of material and require her to investigate every allegation. She does not have the resources; indeed, the resources do not exist. The amendment would cripple the office of the police ombudsman and put an impossible burden on the police and the Director of Public Prosecutions. If ever there was an amendment that would wreck the administration of justice, this is it.

Photo of Eddie McGrady Eddie McGrady Social Democratic and Labour Party, South Down

Following our last sitting, I tabled amendment No. 68 on behalf of my party. Amendments Nos. 69, 70 and 71 are consequential on amendment No. 68. The amendments are designed to ensure the full implementation of the criminal justice review and of commitments made by the Government, especially at Hillsborough. In other words, they are designed to ensure that the Government live up to their word.

The criminal justice review recommended that

''a duty be placed on the prosecutor to ensure that any allegations of malpractice by the police are fully investigated.''

Clearly, the appropriate person to carry out such investigations is the police ombudsman—I do not think anyone disputes that—yet the implementation of that undertaking has been far from straightforward. The Justice (Northern Ireland) Act 2002 failed to impose a duty on the Director of Public Prosecutions to refer allegations of wrongdoing to the police ombudsman. Instead, it gave him only the discretion to refer such matters.

My colleagues and I cannot accept that, because we were told that the criminal justice review would be fully implemented. That is why we have sought new legislation to implement it properly. In particular, we were given a commitment that there would be—I quote from a Government source—a

''requirement on DPP to refer to Police Ombudsman cases of alleged police misconduct discovered in his casework''.

That is quite specific, but the Bill does not implement that commitment. Nor, as a result, does it properly implement the criminal justice review. Instead, clause 5 provides only that the director shall refer any matter that

''appears to the Director to indicate''

that a police officer may have committed a criminal or disciplinary offence. So, if a matter does not appear to him to indicate police wrongdoing, he is under no duty to refer it to the police ombudsman.

In those circumstances, the director would decide whether an allegation lacked credibility and should not be referred to the police ombudsman. That is patently wrong. It is not for the DPP to investigate allegations of police wrongdoing; that is the job of the police ombudsman. Accordingly, the ombudsman should decide whether such allegations are credible. In a sense, that answers the questions raised by the right hon. Member for Upper Bann (Mr. Trimble). The ombudsman has the remit under statute to determine whether an allegation is frivolous or serious; it should be self-evident that that is not a matter for the DPP.

As to the burden that the arrangements would impose on the ombudsman, that is a theoretical matter. There is no evidence that the ombudsman would have to investigate a huge, overwhelming number of the allegations made to the DPP's office. After all, the holder of the ombudsman's office—it is a lady at the moment—must decide whether an allegation is frivolous or serious. An assessment of frivolity—that is a strange word to use in this context; perhaps I should say frivolousness—would wipe out many allegations, but some serious ones would be left.

The police ombudsman should have the right at least to know about every allegation of police wrongdoing, whether the DPP believes it or not. She has the right to know not least so that she can fulfil her statutory obligation to prepare and give statistical evidence on the number of allegations. It should be left to her to decide whether to investigate them.

That is not to say that proposed new section 55(4A), as inserted by clause 5, should be scrapped. It is right that the director should be under an obligation to refer all cases of suspected police malpractice. Indeed, the Government committed themselves to as much in the updated criminal justice implementation plan, which refers to a

''duty on the Director of Public Prosecutions to refer all cases of suspected police malpractice to the Police Ombudsman''.

That duty, in itself, is not sufficient. There should also be a duty on the director to refer to the police ombudsman all allegations of police wrongdoing. Whether he suspects that it took place or not is irrelevant to the case.

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

I draw the hon. Gentleman's attention to the criminal justice review, where primacy is clearly given to the head of prosecution. Only when he or she is not satisfied with the article 6(3) response under the Prosecution of Offences (Northern Ireland) Order 1972 should the ombudsman be involved. I am trying

to understand the authority or experience through which the hon. Gentleman wants to reverse the priorities of the criminal justice review.

Photo of Eddie McGrady Eddie McGrady Social Democratic and Labour Party, South Down

The hon. Gentleman makes a point that can be quickly dealt with. The criminal justice review, in addition to what he has says, clearly states the recommendation that

''a duty be placed on the prosecutor to ensure that any allegations of malpractice by the police are fully investigated.''

That is not so that he can make a judgment, but so that he can initiate an investigation. That can be done only through reference to the ombudsman's office.

In case the Minister thinks I am making a pedantic point, let me explain why I am not. In 1991, a man called Billy Stobie was charged with possession of weapons. On being charged, he threatened to reveal that he was a police informant, that he had warned the police in advance that the Ulster Defence Association was going to murder somebody and that he had also warned them of the location of the weapon to be used.

The person who was to be murdered was the defence lawyer Pat Finucane. The police did not intervene. They did not seize the weapon and Mr. Finucane was shot dead in front of his family. After Stobie threatened to reveal that information, the charges against him were inexplicably dropped by the DPP despite the fact that, under the law, Stobie, who was caught in possession of weapons and firearms, was technically required to prove his own innocence. That decision remains unexplained today. Since then—unfortunately and perhaps unjustifiably—a cloud of suspicion has hung over the decision and, by extension, over the office of the Director of Public Prosecutions.

Had the law been as we are arguing that it should be, the DPP, on hearing such a threat from Stobie, would have had to refer the matter to the police ombudsman for investigation. The investigation would have been carried out, there would have been exposure—I hope—and public confidence would have been restored. That would have protected the Director of Public Prosecutions from the serious allegation that he had turned a blind eye because of instructions from other quarters. It would have proved an important factor in the credibility of the whole process.

Had such a measure been in place in 1991, it would have ensured that the criminal justice system was not, in many people's eyes, corrupted by itself. That is an example of what we are trying to prevent. Perhaps it is coincidental, and of course I am not supposed to refer to this, but today the Secretary of State will make a statement to the House on the Cory report. I assume that that statement will vindicate much of what I am saying.

In terms of implementing the full, clear, explicit decision of the criminal justice review and the clear commitment given in writing by the Government, I assume that they will accept my amendment as a reflection of their true intention. Therefore, I commend amendments Nos. 68 to 71.

Photo of Mr Andrew Hunter Mr Andrew Hunter Independent Conservative, Basingstoke 9:30 am, 1st April 2004

With all due respect to the hon. Gentleman, I believe that he has fundamentally misunderstood what the criminal justice review states. I put it to him—if he bears with me, I shall substantiate this—that the review did not demand, or even remotely suggest, that the DPP should be obliged to refer to the police ombudsman any matter that appears to the DPP 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 which would justify disciplinary proceedings''.

At paragraph 4.132 of the review, it is recommended that article 6(3) of the 1972 order

''be supplemented with a provision enabling''—

enabling is the key word; there is nothing about 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 recommend not that the DPP should be required to refer certain matters to the ombudsman, but that he or she should be able to do so in circumstances that it then carefully defined—when he or she is not satisfied with an article 6(3) response. That begs the question, what did the review conclude on article 6(3)? At paragraph 4.131, it states:

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

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 essence, article 6(3) gives the DPP, not the ombudsman, primacy in investigating the matters to which clause 5 refers. The review recommended that the powers of that article 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.

Last Thursday, 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 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 only that the police ombudsman could, not should, become involved if the DPP was dissatisfied with the article 6(3) response.

The hon. Member for South Down is trying, as the did Minister last Thursday, to turn the criminal justice review recommendation on its head. Last week, the Minister went on to say that clause 5

''was therefore drafted to ensure that the discretion lies with the ombudsman, as is right in cases of potential police misconduct.''

That is not what the review said, and that is not the situation that should prevail. Minor police misconduct should be resolved by internal disciplinary processes. Other police misconduct, like all other 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 a police ombudsman should be sought only if the DPP believes that the police have not fully investigated, or are not fully investigating, allegations. That is for the DPP alone to decide, just as the criminal justice review recommended.

Last Thursday, the Minister also argued that

''the clause allows for the director to exercise some judgment''.

The hon. Member for South Down reflected that in his remarks, but I disagree. If any matter appears to the DPP to indicate that an offence may have been committed, he is obliged to refer it to the ombudsman under the terms of the Bill. He cannot exercise any discretion entirely contrary to the recommendations of the criminal justice review.

The Minister also said that

''the current terms of the clause''—

an interesting choice of words—

''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 all depends on what one means. We can, however, be certain that the clause undermines the role of the DPP in absolute contradiction of the criminal justice review. The reason for that is clear from the explanatory notes, which say that the clause 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.''

Neither the hon. Member for South Down, nor the Minister last Thursday, convinced us that the clause should stand part of the Bill. In due course, I shall express that through my vote.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I shall be brief. I have found this debate fascinating, because it takes me back to when we were discussing the role that the Northern Ireland police ombudsman is supposed to play. It never crossed my mind that we were creating a police chief to police the police. It always seemed to me that, as the word ''ombudsman'' implies, we were talking about someone who could be a reference point for potential complaints about police conduct. Otherwise, the word ''ombudsman'' is curious, because the ombudsman is not an ombudsman but someone different—he or she is the head of the prosecution authority for the prosecution of police officers in Northern Ireland. We should bear that closely in mind as a general principle when we consider the issues that divide the Committee over the clause.

Of course there must be a dialogue between the DPP and the ombudsman. To that extent, when I first read the clause, it struck me as relatively innocuous

and simply a beefing up of the ombudsman's traditional role. However, the amendment that stands in the name of the hon. Member for South Down would turn it into something different. That begs the question, who carries out prosecuting functions in a country?

I am unhappy about such split prosecution functions. A complaints authority and a public prosecutor are not the same thing, and the Committee should be careful to keep that distinction. That is not to say that the ombudsman does not have an important role, but it does mean that it should be possible for the DPP to conduct public prosecutions. The Minister will correct me if I am wrong, but I do not remember it being suggested that the DPP was unsatisfactory or failed to prosecute police officers. Rather, what was suggested—what seemed to me to have some force—was the fact that the public needed to be reassured that possible misfeasance by police officers was independently investigated. Again, those are not one and the same thing. I shall listen to the Minister with interest, because it is important that we should not start muddling the roles of those two individuals.

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

That point has some value and I shall allude to it further.

Amendments Nos. 34 and 35 would require the DPP to refer cases to the police ombudsman only where a police officer had committed a crime—or, perhaps more accurately, had been convicted of one. That goes some way from what the criminal justice review envisaged, as the hon. Member for South Down said. Recommendation 21 said that a duty should be placed on the prosecutor to ensure that any allegations of police malpractice be fully investigated. These amendments would constrain what the DPP would or could refer to the police ombudsman. They would undermine the proper effect of the clause, which is to ensure that suspicions about police behaviour are passed to the proper person for investigation.

The right hon. Member for Upper Bann, who tabled the amendment, may be concerned that, if not amended, the clause will cause cases to be passed to the police ombudsman before the DPP has made a judgment on whether a prosecution should commence. That is to misunderstand the purpose and effect of the clause. As drafted, the provision sensibly delineates the respective roles of the DPP and the police ombudsman by ensuring that any decisions taken on the conduct of the police are made by the appropriate authority, which is the police ombudsman. Likewise, nothing in the clause interferes with the responsibility of the DPP to make decisions regarding prosecutions.

The hon. Member for Basingstoke (Mr. Hunter) also misunderstood the position to some extent when he talked about article 6(3) of the 1972 order. That order concerns prosecutions of investigated cases, whereas we are talking about investigating suspected misconduct. That deals with the respective roles of the ombudsman and the DPP.

The clause requires the DPP to pass to the ombudsman any indications that he finds in the files

in front of him that police malpractice may have occurred. It would then be for the ombudsman to take the matter forward. The DPP is not under an obligation to refer matters that he understands the police ombudsman is already aware of. That is likely to include most, if not all, cases of police officers being charged with a criminal offence. It is therefore most unlikely that the DPP would pass matters to the ombudsman that relate to the substance of the cases he is looking at. It is more likely that the provision would bite when, as the DPP considers a file on a completely unrelated matter, the behaviour of a police officer raises questions.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

I follow what the Minister is saying and I do not disagree with his reasoning, but, on such a basis, I find the amendment completely innocuous, because there would still be the ability to refer where the DPP thought that disciplinary proceedings were justified, which is the ombudsman's role. However, the amendment makes it clear that the fact that someone may have committed a criminal offence is not a justification, unless a disciplinary element should be inserted. To that extent, the right hon. Member for Upper Bann has tabled a good amendment.

Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office 9:45 am, 1st April 2004

If the amendment is innocuous, as the hon. Gentleman says, it may also be unnecessary. It is up to the ombudsman to assess whether a case is valid. The hon. Gentleman wants a stronger burden of proof to be imposed on the DPP than simply believing that an offence may have been committed and that it therefore requires further investigation. ''Has'' would seem to imply that the matter is definitely clear and it would impose a slightly stronger burden than that only ''appearing'' to be the case.

Photo of Dominic Grieve Dominic Grieve Shadow Attorney General

Although it may be difficult in an intervention, I shall try to give an example. An allegation is made that a police officer, when out of uniform, has slapped someone's face. The allegation appears to be of a trivial nature and has nothing to do with his work. The director examines the facts and concludes that no criminal offence has been committed. Does he need to refer that, given that no disciplinary elements are involved? My answer is no, and that is my justification for the amendment. However, if a disciplinary element was involved, new subsection (4A)(a)(ii) would come into play and the matter would have to be referred. The distinction made by the right hon. Member for Upper Bann is a good one.

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

I am not entirely sure about that—we might have to investigate it further. The example of an off-duty police officer gives rise to two points. It would need to be determined, first, whether the officer had committed a criminal offence, and secondly, whether the incident took place in the course of a criminal investigation. In the hon. Gentleman's example, the implication was that that was not the case. The provision, as drafted, has the right balance both in terms of fulfilling the commitment and in addressing such issues.

Amendment No. 36 deals with retrospective investigations by the police ombudsman. In that

context, I would like to start by thanking Lord Laird who, on Second Reading in another place, alerted us to the fact that the clause as originally drafted was out of keeping with the Government's policy on time limits on investigations by the police ombudsman.

The Government therefore tabled amendments in the Lords to insert what is now subsection (6). In the subsection, we seek to ensure that referrals under the new clause are treated consistently with any referrals to which the RUC (Complaints etc) Regulations 2001 currently apply. Subject to the exceptions that they contain, the regulations limit the ombudsman to investigating complaints about matters that are no more than 12 months old. Subsection (6) allows the Secretary of State for Northern Ireland to make similar regulations in respect of new subsection 55(4A) of the Police (Northern Ireland) Act 1998 as inserted by the clause.

Photo of Eddie McGrady Eddie McGrady Social Democratic and Labour Party, South Down

The Minister referred to the 12-month limit on retrospective examination and investigation. Will he confirm that an investigation may be carried out if substantial new evidence arises in respect of an event that took place more than 12 months previously?

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

My hon. Friend is right. Exceptions were included to allow the ombudsman to investigate cases in which new evidence comes to light, or cases that he believes should be investigated because of their gravity, or exceptional circumstances. To ensure that we have consistency across the legislation, those provisions also apply in this context, as they do with regard to the police.

The amendments tabled by my hon. Friend the Member for South Down relate to concerns that have been raised with us on previous occasions. At this stage, we intend to resist them. We believe that the clause, as drafted, should address those concerns, because it includes allegations made within the remit of other matters. However, I reassure him that I will reflect further on his concerns and return to them on Report, and I ask him not to insist on the amendments.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

The hon. Member for Basingstoke suggested that some of the references to the criminal justice review might have been mistaken, and the person making the references may have misunderstood what the review actually said. He is absolutely right: it is clear, after listening to the hon. Member for South Down, and some of the Minister's comments, that there is a failure to appreciate what the review actually said. The legislation has drifted away from the criminal justice review, and some of the amendments that have been tabled, in particular by the hon. Member for South Down, would take us even further away from it. I am extremely concerned about that, and especially by the hints dropped by the Minister towards the end of his comments. Yes, he should take the matter away, but he should think about it very carefully, because he is in danger of creating a situation that will have moved radically away from the criminal justice review. As the hon. Member for Basingstoke accurately said, it will have been turned upside down, creating something that is impossible to operate.

I suggest to the hon. Member for South Down that if he reads paragraphs 4.130 to 4.132 together—he quoted from 4.132—it will become clear that he has completely misconstrued them. Paragraph 4.130 starts with a statement in bold, which is also one of the recommendations in the summary:

''We recommend that the investigative functions should remain the responsibility of the police and not be subject to external supervision.''

He said that investigations could be done only by the ombudsman, but that is not what the criminal justice review says. Paragraph 4.131 takes the matter further:

''it was apparent that some saw a role for the prosecutor in ensuring a full and rigorous investigation of all cases no matter what the circumstances . . . As noted . . . Article 6(3) of the Prosecution of Offences (Northern Ireland) Order . . . already places a duty on the Chief Constable to respond to a request to the DPP for information on any matter requiring investigation on the ground that it may involve a criminal offence . . . We recommend that the powers contained in Article 6(3) . . . be retained and that the head of the prosecution service 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''.

It says ''criminal offence'' only, not disciplinary matters. The introduction in this legislation of disciplinary matters departs from the criminal justice review.

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

Looking at paragraph 4.129, which is the lead-in to the paragraphs that the right hon. Gentleman quotes, puts into context the question whether an investigation should follow the Scottish principle where, at an early stage, a prosecuting officer is responsible. It was obviously suggested to the review that it should consider the Scottish system, which is similar to, or a variation of, the French system. The review says that investigations should be the responsibility of the police, which is much more akin to the traditional British system. That is the context within which the recommendations should be read.

Photo of Rt Hon David Trimble Rt Hon David Trimble Leader of the Ulster Unionist Party

I shall not allow the Minister to tempt me down the path of re-examining the recommendations of the McDermott report on the investigation of offences, or to contemplate—as was seriously contemplated in 1969 to 1970—introducing the Scottish system of procurators fiscal in Northern Ireland. It was a good idea, and I was strongly tempted by it, but that was in the days when my consideration of such matters was purely academic, not political. I shall not allow the Minister to divert the Committee in that way. It does not detract from the clear building block in paragraph 4.130, in which the investigative function remains the responsibility of the police—the Minister's comments do not depart from that. We are not turning to the Scottish system; we are retaining a normal common-law system where investigatory function lies with the police.

As I was saying before the Minister intervened, it is clear from the criminal justice review that it is a question of the circumstances of possible criminal offences, not disciplinary matters. I quoted from paragraph 4.131 and asked the hon. Member for South Down to reflect on the words ''to prompt'',

which refer to article 6(3), which gives the DPP the ability

''to prompt an investigation by the police of facts that come into its possession, if these appear to constitute allegations''.

The word ''allegations'' is used in slightly differently from how the hon. Gentleman used it. He made it refer to any allegations that are made; people make allegations, but that is not what the paragraph is referring to. It refers to a situation in which facts that appear to constitute allegations, or make it appear that an offence has occurred, come into the possession of the DPP. That should be borne in mind when considering the meaning of the next paragraph, 4.132, which states that article 6(3)

''would underline the central point that, while it is no part of the prosecutor's function to supervise investigations, it is the prosecutor's concern to prosecute crime and when allegations of criminal offences come into his or her domain, the prosecutor has a duty to see that such allegations are investigated.''

The ''allegations'' need to be read in the light of the preceding paragraph. The hon. Gentleman did not quote the next sentence, which states:

''The question arises of what happens in the event that the prosecutor is dissatisfied with the response to a request for matters to be investigated''.

It is clear that the criminal justice review is contemplating that in the first instance article 6(3) is invoked when the DPP asks the police to investigate the matter. The paragraph goes on to say that if the DPP is dissatisfied with the response, and believes that it has not been pursued with sufficient vigour by the police,

''We note that under the Police (Northern Ireland) Act 1998 the Secretary of State and the Police Authority . . . may refer a case to the Police Ombudsman after consultation with the Chief Constable where it is desirable to do so in the public interest.''

That is an interesting set of qualifications; they are not in the proposal, which has drifted a long way from the criminal justice review.

The final recommendation in paragraph 4.132 states:

''We recommend that Article 6(3) . . . be supplemented with a provision enabling the prosecutor to refer''.

That is the provision that I quoted at the end of our debate in the Committee's second sitting, and to which the hon. Member for Basingstoke referred.

I am sorry that my reply has been rather lengthy, but I wanted to point out that if one reads the paragraphs of the criminal justice review together, it is clear that the clauses depart from the review, and broaden the limited supplementary power that it contemplated. The hon. Member for South Down has completely misconstrued the situation. His amendments would not only broaden the clause and take it even further from the criminal justice review but make a complete nonsense of the operation of the DPP and of the police ombudsman's office. I am most concerned at the Minister's suggestion that he will consider the matter.

I do not intend to withdraw the amendment, as my hon. Friends and I want to underline the issue by dividing the Committee.

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 11.

Question accordingly negatived.

Photo of Eddie McGrady Eddie McGrady Social Democratic and Labour Party, South Down

In view of the Minister's remarks and his undertaking to review the clause on Report, I will not press my amendments.

Question proposed, That the clause stand part of the Bill.

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

I said earlier that I had it in mind to divide the Committee on the clause. As we have just had a Division, it would overtax the Committee's patience if I did that. May I merely put on record my continuing objection to the clause on the grounds that it is not what the criminal justice review recommended? It has turned the recommendations on their head. It is what was agreed at Hillsborough. It was part of an attempted political deal, and as such is not a sound basis for legislation. The clause is also wrong in itself, because despite all the arguments we have heard to the contrary, the DPP should be able to use his discretion in considering whether to refer to the ombudsman.

Question put and agreed to.

Clause 5 ordered to stand part of the Bill.