Schedule 2 - Bail under Terrorism Act 2000

Justice (Northern Ireland) Bill [Lords] – in a Public Bill Committee at 11:00 am on 1st April 2004.

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Photo of John Spellar John Spellar The Minister of State, Northern Ireland Office 11:00 am, 1st April 2004

I beg to move amendment No. 8, in

schedule 2, page 14, line 14, at end insert—

'(5) In Part 1 of Schedule 9 to the Terrorism Act 2000 (c.11) (scheduled offences) after paragraph 22 insert—

''Justice (Northern Ireland) Act 2004

22A Offences under paragraph 1(1) or (2) of Schedule 2 to the Justice (Northern Ireland) Act 2004 (absconding by persons admitted to bail in respect of a scheduled offence), subject to note 1 below.'' '.

The amendment would make the offences under paragraph 1(1) and (2) of schedule 2 scheduled offences. Schedule 2 creates two new offences of absconding while on bail in a scheduled case. Those offences replace the offence of absconding while on bail under section 67 of the Terrorism Act 2000 and under section 26(d) of the Prison Act (Northern Ireland) 1953. The offence under section 26(d) is repealed by the Bill. It is a scheduled offence under schedule 9 to the Terrorism Act 2000, and it therefore makes sense for the replacement offences also to be scheduled.

Amendment agreed to.

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

I beg to move amendment No. 9, in

schedule 2, page 14, line 39, at end insert—

'(5) If, on an application made by a constable, a justice of the peace is satisfied that—

(a) there are reasonable grounds for believing that a person who is liable to arrest under sub-paragraph (4) is to be found on premises specified in the application; and

(b) any of the conditions specified in sub-paragraph (6) is satisfied,

he may issue a warrant authorising a constable to enter those premises (if need be by force) and search them for the purpose of arresting that person.

(6) The conditions mentioned in sub-paragraph (5) are—

(a) that it is not practicable to communicate with any person entitled to grant entry to the premises;

(b) that entry to the premises will not be granted unless a warrant is produced;

(c) that the purpose of a search of the premises may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.'.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss the following:

Amendment No. 18, in

clause 11, page 8, line 20, after 'court', insert

'and at the end insert—

''in order to carry out an arrest under this paragraph, a constable may enter any premises where he has reasonable grounds for suspecting that person to be.''.'.

Government amendment No. 6.

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

Government amendments Nos. 6 and 9 are intended to provide the Police Service of Northern Ireland with powers of entry, which can be used to make an arrest using the powers of arrest without warrant under article 6(3) of the Criminal Justice (Northern Ireland) Order 2003 and paragraph 2(4) of schedule 2 to the Bill. The power in amendment No. 6 applies to non-scheduled cases, and the power in amendment No. 9 applies to scheduled cases. I stress that those powers of entry can be exercised only if a justice of the peace has granted the warrant.

Amendment No. 6 relates to clause 11, which will amend parts of the 2003 order dealing with bail in non-scheduled cases. The amendment will add new paragraph (3A) to article 6 of the 2003 order. Under article 6(3) of that order, a person who is on bail in a

non-scheduled case is liable to be arrested by a constable without warrant

''(a) if the constable has reasonable grounds for believing that that person is not likely to surrender to custody;

(b) if the constable has reasonable grounds for believing that that person is likely to break any of the conditions of his bail or has reasonable grounds for suspecting that that person has broken any of those conditions; or

(c) in a case where that person was released on bail with one or more surety or sureties, if a surety notifies a constable in writing that that person is unlikely to surrender to custody and that for that reason the surety wishes to be relieved of his obligations as a surety.''

Amendment No. 6 provides that if a person is liable to be arrested under article 6(3), a JP may issue a warrant authorising a constable to enter a specified premises for the purpose of effecting the arrest.

Amendment No. 9 will amend schedule 2, which, with clause 10, deals with the enforcement of bail granted in scheduled cases under section 67 of the Terrorism Act 2000. Under paragraph 2(4) of schedule 2, a constable will have the power to arrest without warrant a person who is on bail in a scheduled case in similar circumstances to those in article 6(3). Amendment No. 9 also provides that if a person is liable to be arrested under paragraph 2(4), a JP may issue a warrant authorising a constable to enter specified premises for the purpose of effecting the arrest.

That details the technical side of the Government amendments, and I apologise to the Committee for the length of that explanation. The aim of those amendments is to enhance the PSNI's powers to arrest a person who breaches, or is likely to breach, a condition of his bail.

Amendment No. 18 would also provide a power of entry to arrest, but only for those liable to be arrested under article 6(3) and without the safeguard of having to obtain a warrant from a JP. When the Bill was debated in another place, Lord Glentoran tabled an amendment similar to amendment No. 18, which would have given the police an unfettered power to enter premises to effect an arrest under article 6(3). In response to that amendment, the Government expressed concerns about the compatibility of such an unfettered power with article 8 of the European convention on human rights, but undertook to consider, with the police, whether a compatible power of entry could be devised. Accordingly, our officials had numerous discussions with the police, as a result of which Government amendments Nos. 6 and 9 were drafted. They have the support and approval of the police.

The police are concerned that it would be easy for a person with bail to frustrate police powers to arrest them for a breach or likely breach of their bail conditions by entering private premises. Without powers to enter such premises and search for the person to be arrested, the power of arrest is effectively nullified until that person re-emerges. That is a problem of particular concern in Northern Ireland, where, due to security considerations, it is often not possible for police personnel to wait outside premises until a person re-emerges. The potential for public

disorder in certain areas would be high if numbers of police officers were required to remain in the street outside a particular residence.

The exercise of a power of entry will almost certainly engage with article 8 of the European convention on human rights. Such interference must comply with article 8(2)—namely, it must be in accordance with the law, pursue a legitimate aim and be necessary in a democratic society.

The final requirement is that the power be proportionate. The need to ensure that the power is exercised proportionately means that the power of entry could not be a summary power. Therefore, before a constable can enter premises to effect an arrest he must obtain a warrant from a JP. That ensures that there will be a judicial decision on whether it is appropriate and proportionate for a power of entry to be granted in a particular case.

A JP must exercise his discretion to decide whether a warrant should be issued in view of all the circumstances of a case and be satisfied, first, that there are reasonable grounds for believing that a person who is liable to be arrested under those measures is to be found on the premises specified in the application. Secondly, he must be satisfied that it is not practicable to communicate with any person entitled to grant entry to the premises, that entry to the premises will not be granted unless a warrant is produced or that the purpose of a search of the premises may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them. We can envisage the circumstances in which that would happen.

Accordingly, all the safeguards under articles 17 and 18 of the Police and Criminal Evidence (Northern Ireland) Order 1989 will apply to the application for and execution of the warrant. I hope that I have outlined the genesis of the power, the reason for it in the circumstances of Northern Ireland and the benefit to be obtained from it.

Amendment agreed to.

Schedule 2, as amended, agreed to.