Jim Allister: That is absolutely untrue, with respect. It is not in the Bill, and the way in which the Bill is written means that it is an absolute offence, so there is no defence now of reasonable excuse. The Member should be careful not to mislead the House. Her Bill is very clear. I know that she wanted to put it in, and she failed, as I failed, in that. We have the Bill as it is, and, in the Bill as it...
Jim Allister: ...in respect of clause 5 and the criminal offence of influencing. It refused to accept that there should be written into the law, as there is with a vast panoply of criminal offences, the defence of reasonable excuse. Just a couple of weeks ago, the House deliberately decided that the most basic of defences — reasonable excuse — would not be available for this criminalisation. Instead,...
Jim Allister: ...excludes a court from looking at whether something reasonable caused it, because clause 5 is drafted in absolutist terms. If the person does any of the things in the Bill, because there is no defence of reasonable excuse, they are automatically guilty as charged. It is absolute. Once you prove the actus reus of the offence, it is the endgame: the offence is proven. That is why the Member,...
Jim Allister: ...with the trend in creating criminal offences. It is not about asking the Assembly to define what a "reasonable excuse" is, because every case is different. It is about saying to the court, "If the defence is raised by the accused, you decide whether what they did or said was reasonable". It is not the House that will decide what is reasonable. Judging by the House, nothing could be reasonable.
Jim Allister: ..., and that is what the Alliance Party, Sinn Féin and the SDLP are embracing today. All they are asked to support is the introduction into the Bill of the very lowest common denominator of criminal defences in respect of an offence: namely, to let the court decide whether what was done was reasonable. That is not by your standards or mine; it is by the standards that the court would set in...
Jim Allister: ...a criminal, and that is where the Bill goes far too far. As if that were not bad enough, the Bill makes the offences absolute. One of the amendments would take out clause 6(4), which provided the defence that, if you did not know or had no reasonable way of knowing that the protected person was in a safe zone, you had not committed an offence.
Jim Allister: ...absolute offence to drive your car without insurance. Why? To compel people to have their car insured. It does not matter if you say, "I forgot", "My wife forgot" or whatever, because there is no defence. You will put into the category of absolute offence the business of criminalising somebody who is an influencer. If that is not a step beyond what is rational and reasonable, I have no...
Jim Allister: I do not recognise the phraseology of "reasonable defence". Unless something is specified in the relevant legislation, either the offence was committed or it was not. Some legislation — this may be what the Member is thinking of — mentions "someone without reasonable excuse". Your legislation does not say that. It does not say that someone commits an offence "if without reasonable...
Jim Allister: ...require the implementation of what we agreed six and a half years ago and to preserve the right to have oral evidence in committal proceedings, if the magistrate is persuaded — the onus is on the defence — that that is in the interests of justice. When I discovered that, I was shocked beyond words, so I went to the Justice Committee's report — the Committee that examined this Bill...
Jim Allister: ...you are even permitted to succeed. That, I think, is the fundamental flaw, as I see it, in the Bill. I do not have an issue with much of the rest of the Bill. On the common law translation of the defence of justification into the statutory defence of truth, there is not much difference. On the issue relating to fair comment there is not much difference. Yes, we need to tighten things up...
Jim Allister: ...journalist was to follow someone for the purposes of challenging them or to watch their movements? Is the fear of being exposed by a journalist enough? That journalist might ultimately have a defence under clause 1(5). However, as the Bill is drafted, something like that could be stalking. Therefore, should it not say, as the GB legislation says, "Fear of violence"? Section 4(a) of the...
Jim Allister: ...a Minister or special adviser communicating: "official information to another for the improper (financial or other) benefit of any person." There are two important aspects to that. It provides a defence of reasonable excuse, which is set out in the succeeding subsections. Clause 10(1) makes it clear that that offence cannot and does not arise: "in the discharge of a statutory obligation"...
Jim Allister: ...an offence for any Minister or special adviser to communicate official information to another for the improper (financial or other) benefit of any person". It goes on to provide a reasonable excuse defence, but, before you get to that, in clause 10(1) there are important provisions that make it clear that, if the information is disclosed in pursuit of a statutory obligation — for...
Jim Allister: ...street cred that is required. Of course, where this offence is concerned, lest some hapless civil servant find himself inappropriately on the wrong side of the law, there is the reasonable excuse defence and the public interest defence; indeed, I go further in the amendment. Of course, you can never be an accused, let us remember, unless there is a prosecution brought that passes the...
Jim Allister: ...or civil servant to fail to comply with the requirements of subsection (2). (4) In proceedings in respect of a charge against a person (“A”) of the offence under subsection (3), it is a defence for A to show that the course of behaviour was reasonable in the particular circumstances or was in the public interest. (5) A person is taken to have shown the fact mentioned in subsection...
Jim Allister: ...was harm, and that is for an offence for which you can get 14 years. Really, I do not think that that is a prospect that this Assembly should entertain, particularly when it knows that the attempt defence is always there. It is always an alternative under the Criminal Law Act 1967. It can be an offence in its own right under the Criminal Attempts and Conspiracy Order 1983. It is there...
Jim Allister: ...Mrs X, but he failed in causing harm to Mrs X, but never mind that, you convict him anyway". I would not like to be the prosecutor who would have to put that case to a jury. I would love to be the defence counsel who had to answer that case. It is so preposterous a suggestion to say that you should invite a jury to convict on the basis of, "Here's a victim with no harm, but because he...
Jim Allister: ...cases and for the magistrate to be satisfied that there is something here, that it is prima facie and needs to be tested by a jury, and so they are committed. You have the very few cases where the defence say, "We would like to challenge the evidence at this stage". Very often, the defence strategically decides not to, because they want to keep their powder dry, so to speak. Every time you...
Jim Allister: ...House today. What of the other 4·5%? They come either through what is called a preliminary investigation (PI) or, more likely, through a mixed committal. That is to say, at its initiative, the defence can ask for all the evidence to be called. It would be very unlikely that you would do that. You do not really want to hear from the mapper or whomever. Or it can ask for key evidence to be...
Jim Allister: In a moment. You can discover that it is fabrication. You can discover that there were motives that produced the fabrication. That is why a defence counsel or solicitor would say, "We know that to be fabricated. We know the motive of that person. We know the frailties of that evidence. To save the need the need for a trial, we are therefore going to try to expose that at this point by asking...