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Committee for Justice

Report on the Justice Bill
(NIA 1/10) – Volume 1

Together with the Minutes of Proceedings and Minutes of Evidence
Relating to the Report

Ordered by the Committee for Justice to be printed 10 February 2011
Report: NIA 41/10/11R Committee for Justice

Session 2010/2011

First Report

Membership and Powers

The Committee for Justice is a Statutory Departmental Committee established in accordance with paragraphs 8 and 9 of the Belfast Agreement, section 29 of the Northern Ireland Act 1998 and under Standing Order 46.

The Committee has power to:

  • Consider and advise on Departmental budgets and annual plans in the context of the overall budget allocation;
  • Consider relevant subordinate legislation and take the Committee stage of primary legislation;
  • Call for persons and papers;
  • Initiate inquires and make reports; and
  • Consider and advise on any matters brought to the Committee by the Minister of Justice.

The Committee has 11 members including a Chairperson and Deputy Chairperson and a quorum of 5.

The membership of the Committee since 13 April 2010 has been as follows:

  • Lord Morrow (Chairman)
  • Mr Raymond McCartney (Deputy Chairman)
  • Lord Browne3
  • Mr Thomas Buchanan4
  • Lord Empey5
  • Mr Paul Givan2
  • Mr Alban Maginness
  • Mr Conall McDevitt1
  • Mr David McNarry
  • Ms Carál Ní Chuilín
  • Mr John O'Dowd

1. With effect from 24 May 2010 Mr Conall McDevitt replaced Mrs Dolores Kelly.
With effect from 11th June 2010 the Rt. Hon Jeffrey Donaldson resigned as an MLA and hence ceased to be a Member of the Committee

2. With effect from 28th June 2010 Mr Paul Givan replaced the Rt. Hon Jeffrey Donaldson as a Member of the Committee.
With effect from 25th June 2010 Mr Alastair Ross resigned as a Member of the Committee.
With effect from 21st July 2010 Mr Jonathan Bell resigned as a Member of the Committee.

3. With effect from 13th September 2010 Lord Browne was appointed as a Member of the Committee.

4. With effect from 13th September 2010 Mr Thomas Buchanan was appointed as a Member of the Committee.

5. With effect from 8th November 2010 Lord Empey replaced Mr Tom Elliott.

Table of Contents

List of abbreviations and acronyms used in the Report

Volume One

Report

Executive Summary

Introduction

Key issues

Consideration of the Bill by the Committee

New Provisions to be introduced into the Bill by the Department

Clause-by-Clause consideration of the Bill

Appendix 1

Minutes of Proceedings

Appendix 2

Minutes of Evidence

 

List of abbreviations and acronyms used in the report

ALB Arm's length body
AONISC Amalgamation of Official Northern Ireland Supporters Clubs
BIRW British Irish Rights Watch
CAL Committee Assembly Committee for Culture, Arts and Leisure
CDRP Crime and Disorder Reduction Partnership
CFO Court Funds Office
CJINI Criminal Justice Inspection Northern Ireland
Cllr. Councillor
CPLC Community and Police Liaison Committee
CSP Community Safety Partnership
DCAL Department of Culture, Arts and Leisure
DFP Department of Finance and Personnel
DoJ Department of Justice
DPCSP District Policing and Community Safety Partnership
DPP District Policing Partnership
ECHR European Convention on Human Rights or European Court of Human Rights
EU European Union
FPN Fixed Penalty Notice
GAA Gaelic Athletic Association
HMT Her Majesty's Treasury
IDeA Improvement and Development Agency for Local Government
IFA Irish Football Association
IRFU Irish Rugby Football Union
LFA Litigation Funding Agreement
MLA Member of the Legislative Assembly
NIACRO Northern Ireland Association for the Care and Resettlement of Offenders
NICF Northern Ireland Consolidated Fund
NICTS Northern Ireland Courts and Tribunals Service
NIHRC Northern Ireland Human Rights Commission
NILGA Northern Ireland Local Government Association
PACE Police and Criminal Evidence Act 1984
PACT Police Partners and Community Together
PBNI Probation Board for Northern Ireland
PCSP Policing and Community Safety Partnership
PND Penalty Notice for Disorder
PPS Public Prosecution Service
PSNI Police Service of Northern Ireland
RDCO Recovery of Defence Costs Order
RMO Responsible/Resident Medical Officer
SOLACE Society of Local Authority Chief Executives
WSN Women's Support Network

Executive Summary

1. This report sets out the Committee for Justice's consideration of the Justice Bill.

2. The Bill consisted of 108 clauses and 7 Schedules and covered a diverse range of policy areas including sports provisions, policing and community safety partnerships, new services to victims and witnesses, new alternatives to prosecution and changes to legal aid legislation.

3. The Committee sought a wide range of views as part of its deliberations on the Justice Bill and requested evidence from interested organisations and individuals as well as from the Department of Justice. The Attorney General for Northern Ireland also attended committee to discuss issues in relation to clause 34 which imposes a statutory duty on public bodies to consider community safety implications in exercising their duties. The Committee specifically sought the views of the Committee for Culture, Arts and Leisure on the sports provisions given the remit of that Committee.

4. Written responses were received from 69 individuals/organisations and the Committee held 16 oral evidence sessions and an evidence event in the Long Gallery in Parliament Buildings to which representatives from 21 organisations attended.

Delegated powers of the Bill

5. The Committee sought advice from the Examiner of Statutory Rules in relation to the delegated powers within the Bill to make subordinate legislation. The Examiner advised that the Bill contained a number of delegated powers which were generally subject to an appropriate level of Assembly scrutiny but he drew attention to four provisions which the Committee explored further during the course of the Committee Stage of the Bill.

Key issues

6. The introduction of the Justice Bill was welcomed by the Committee. The Committee was broadly supportive of the Bill and agreed the majority of the clauses as drafted. However, there are a number of provisions which the Committee wishes to see amended or removed from the Bill entirely.

Part 1: Victims and Witnesses

7. The Committee is supportive of Part 1: Victims and Witnesses which contains two policies – the offender levy and improvements to the special measures provisions – to assist victims and witnesses in the criminal justice system. The Committee has not recommended any amendments to this part of the Bill.

Part 2: Live Links

8. The Committee also supports Part 2: Live Links which expands the use of live link facilities in courts to include physical disability and provide for defendants or patients who have a psychiatric illness. Live links will also be available for a wider range of appeals, for sentence hearings in a county court as well as bail hearings in the High Court. The Committee has not recommended any amendments to this part of the Bill and supports the amendment proposed by the Department to set out what happens when a live link breaks down.

Part 3: Policing and Community Safety Partnerships

9. In relation to Part 3: Policing and Community Safety Partnerships (PCSPs) which integrates the roles of Community Safety Partnerships (CSPs) and District Policing Partnerships (DPPs) to create a single partnership for each district council, the Committee supports the broad principle but has a number of concerns, particularly with regard to clause 34. The Committee recommends three amendments and supports two amendments proposed by the Department. The Committee intends to oppose one clause in this section.

10. The Committee recommends amendments to ensure the PCSPs undertake meaningful consultation under clause 21, to allow for the designation of a small number of organisations to always be present on a PCSP by way of an affirmative procedure Rule at paragraph 7 of Schedules 1 and 2 and, at paragraph 10 of Schedules 1 and 2, to appoint the chair and vice chair of the PCSP in the same manner as the appointment of the Policing Committee chair and vice chair under paragraph 12 of Schedules 1 and 2.

11. The Committee also supports amendments proposed by the Department to give councils the scope to pay expenses to all members of PCSPs who do not receive them from their own organisation at Schedules 1 and 2 paragraph 4 and to clarify the means of funding of PCSPs at paragraph 17 of Schedules 1 and 2.

12. In relation to clause 34 the Committee has serious reservations about the implications of the statutory duty that it would place on public bodies to consider community safety implications in exercising their duties. The Attorney General, when he appeared at committee to discuss this clause, articulated his concerns around the wide scope of the clause and the corresponding potential for legal challenges which could potentially be very costly. The Committee shares these concerns and also has concerns about the implementation costs and additional administration that would arise as a result of this provision.

13. The Department attempted to address the concerns of the Committee by proposing several amendments. Unfortunately the timescale for completion of the Committee stage of the Bill prevented a satisfactory conclusion to these discussions. The Committee agreed that, if the clause, even if amended, still creates a statutory duty on public bodies, and this is not sufficiently qualified, then it would not be acceptable and it will oppose clause 34 of the Bill.

Part 4: Sport

14. Part 4: Sport creates a new package of powers in the area of sports and spectator law designed to promote good behaviour amongst sports fans in Northern Ireland and applies specifically to football, GAA sports and rugby union by way of the concept of "regulated matches". This part raised a number of fundamental issues and concerns and the Committee recommends a series of amendments, intends to oppose three clauses, and supports the Minister's decision not to move one other clause.

15. The key areas of concern for the Committee relate to the throwing of missiles, chanting, and alcohol clauses and centres around the vagueness of some of the definitions used in the clauses; whether some of the provisions would be enforceable; the creation of further criminal offences despite a lack of evidence for the need for them; and the fact that legislation and self-regulation by the Sporting Bodies is already in place to deal with the situations.

16. The Committee is recommending amendments to provide greater clarity and focus better on those items likely to cause injury in clause 37 which covers the throwing of missiles and to include 'sectarianism' explicitly in clause 38 which covers chanting and clause 49 which covers Banning Orders: "violence" and "disorder". The Committee welcomes the Department's agreement to take these forward.

17. The Committee also supports amendments proposed by the Department in light of concerns expressed by the Committee and others to reduce the time period around which the powers would apply to regulated matches in clause 36; to remove entirely the offence of being drunk in a vehicle and restrict the offence of consuming alcohol on a specified vehicle only for journeys to a designated match in clause 44; and to ensure that the provisions only apply to matches at designated grounds as set out in Schedule 3.

18. In relation to clause 41 – Being drunk at a regulated match, clause 42 – Possession of drink containers etc and clause 43 – Possession of Alcohol, the Committee remains unconvinced of the necessity for these provisions. While in no way condoning bad behaviour at sporting grounds, the Committee does not believe that the Department has presented a strong enough case to justify the need for further criminal offences, given the legislation and powers that are already in place. The Committee is also of the view, from the evidence received, that these offences if brought in are unlikely to be enforceable and will be impractical. The Committee does not wish to make "legislation for legislations sake" and believes that the current law already in place together with self-regulation by the relevant sporting bodies is the better approach to take. The Committee for Culture, Arts and Leisure reached a similar conclusion in respect of these clauses, questioning the necessity on the basis of existing legislation and regulation by sports governing bodies. The Committee for Justice intends to oppose clauses 41, 42, and 43 of the Bill.

19. The Committee supports the Minister's decision not to move clause 45 of the Bill, which relates to the sale of tickets by unauthorised persons, on the grounds that the sale of tickets can be controlled through self-regulation by the IFA.

Part 5: Treatment of Offenders

20. The Committee supports Part 5: Treatment of Offenders which provides a series of changes or "tidy-up" improvements to sentencing powers which address problems caused by gaps or inconsistencies in existing laws (it does not create new sentences per se). The Committee has not recommended any amendments to this part of the Bill.

Part 6: Alternatives to Prosecution

21. Part 6: Alternatives to Prosecution provides for two new diversionary disposals – penalty notices and conditional cautions – aimed at dealing effectively with minor offences outside the court room. They may be offered to offenders as an alternative to prosecution in suitable cases but offenders will retain the right to ask to have their case heard at court instead. The Committee supports these provisions and recommends that the Order bringing the code of practice on the application of conditional cautions into operation should be subject to draft affirmative procedure rather than negative resolution. The Committee welcomes the Department's agreement to take this forward.

Part 7: Legal Aid

22. Part 7: Legal Aid etc allows rules/regulations to be made to introduce a new means test for the grant of criminal legal aid in Northern Ireland and to make amendments to Legal Aid. These include powers to enable the courts to make recovery of defence costs orders; repeal of a provision which prevents the Northern Ireland Legal Services Commission from establishing or funding services under a Litigation Funding Agreement; and a number of miscellaneous amendments to legal aid legislation, mainly relating to the scope of civil legal services, to ensure that access to justice is maintained. The Committee recommends one amendment to Part 7 which the Department has agreed to take forward.

23. In relation to clause 85, which allows for the introduction of a means test for criminal legal aid, the Minister made it clear to the Committee that any proposals for a fixed means test would require close scrutiny prior to any possible implementation and therefore the option of introducing a fixed means test for criminal legal aid should be kept open through the provision of this enabling clause.

24. The Committee is content to provide for an enabling clause in the Bill but given the impact on access to justice that the introduction of a fixed means test for criminal legal aid could potentially have, it wished to ensure that any Rules arising from this power would be subject to draft affirmative procedure rather than negative resolution.

25. Given the strongly held views of the Committee in relation to this matter the Department responded by proposing a draft amendment to provide for affirmative procedure when the Rules in clause 85 are being considered for the first time.

26. The Committee accepted that the proposed amendment from the Department provided for full and rigorous scrutiny of the principle and procedures for the introduction of a fixed means test for criminal legal aid and therefore satisfied its requirements.

Part 8: Miscellaneous

27. Part 8: Miscellaneous provides for improvements to a range of miscellaneous powers available to courts along with several other business improvement matters. The Committee raised two issues in relation to this section and recommends two amendments.

28. In relation to clauses 95 and 99, the Committee considered why rules made by the Magistrates' Court Rules Committee (and the County Court Rules Committee) are not subject to Assembly procedures. The Committee sought the Minister's views on changing the position so that Magistrates' Court Rules and County Court Rules would be subject to negative resolution procedure and the feasibility of taking this forward by way of amendments to the Justice Bill.

29. The Minister indicated his support to change the position but outlined that, for a number of reasons, it is unlikely that the necessary provision can be included in this Bill. The Committee welcomes the Minister's commitment to bring forward the necessary provision in the next available Bill and is content with this position.

30. In response to a recommendation from the Committee on the need for clarification of the wording of clauses 96 and 97 regarding a person nominated by the Attorney General for membership of the Crown Court Rules Committee and the Court of Judicature Rules Committee, the Department proposed to amend the Bill to specify that the Attorney's nominee shall be a practising member of the Bar or a practising solicitor. The Committee welcomes the Department's agreement to take these amendments forward.

31. The Committee agreed that it was content with these proposed amendments.

Part 9: Supplementary

32. Part 9: Supplementary provides supplementary, incidental, consequential and transitional provisions. The Committee had no comments to make in relation to this part of the Bill.

Introduction

33. The Justice Bill was referred to the Committee for Justice for consideration in accordance with Standing Order 33(1) on completion of the Second Stage of the Bill on 2 November 2010.

34. The Minister for Justice (the Minister) made the following statement under section 9 of the Northern Ireland Act 1998:

'In my view the Justice Bill would be within the legislative competence of the Northern Ireland Assembly'.

35. The Bill proposes; to tackle delay by providing new and speedier ways of delivering justice; improving efficiency through the removal of many low level cases from the court system; tackling the problem of criminal legal aid expenditure by allowing for the introduction of means testing and ensuring that the resources that are available are targeted at the most deserving cases. Regarding victims and witnesses the Bill proposes; to create a victims of crime fund through a levy to be imposed on offenders to generate additional resources for the provision of victim support services; special measures for the giving of evidence by vulnerable and intimidated witnesses will be expanded; and widening video link powers to include for example psychiatric hospitals. Regarding community safety and public order, the Bill proposes; to tackle problems with behaviour, violence and occasional sectarianism at major sporting events; alongside the sharpening up of the enforcement of sex offender law.

36. During the period covered by this report, the Committee considered the Bill and related issues at 16 meetings. The relevant extracts from the Minutes of Proceedings for these meetings are included at Appendix 1.

37. The Committee had before it the Justice Bill (NIA 1/10) and the Explanatory and Financial Memorandum that accompanied the Bill.

38. Prior to the introduction of the Bill, the Committee undertook extensive pre-legislative scrutiny of the proposed policy content of the planned Bill. This included consideration of the Department's proposals on Special Measures, Sex Offender Notification, Court Boundaries, PPS Commencement Proceedings, Alternatives to Prosecution, Local Partnership Working on Policing and Community Safety, Offender Levy, Sports Law, Reform of Legal Aid, and Solicitors' Rights of Audience. Some of the policy areas considered by the Committee at this stage were not included in the final version of the Bill.

39. The Department reflected the views of the Committee expressed during the pre-legislative stage on a number of matters in the final content of the Bill. For example, in response to concerns raised by Committee members regarding the rates of the offender levy, the Department provided for a two-tier rate for custodial sentences, to reflect the greater harm caused to victims by those convicted of serious and violent offences.

40. In anticipation of referral of the Bill to the Committee after Second Stage, the Committee inserted advertisements on 20 October 2010 in the Belfast Telegraph, Irish News and News Letter seeking written evidence on the Bill. While not normal practice to seek evidence before committee stage commences the size of the Bill – 108 clauses and 7 Schedules – and the very tight timescale within which to complete the Committee Stage necessitated this approach.

41. A total of 69 organisations/individuals responded to the request for written evidence and a copy of the submissions received by the Committee are included at Appendix 3.

42. The Committee was first briefed by officials on the principles and final content of the Justice Bill on 21 October 2010.

43. The Committee took oral evidence from 16 organisations and heard from a further 21 organisations at a stakeholder evidence event in relation to the Policing and Community Safety Partnership clauses. The Minutes of Evidence are included at Appendix 2. The Committee also discussed one of the clauses with the Attorney General of Northern Ireland.

44. The Committee sought advice from the Examiner of Statutory Rules in relation to the range of powers within the Bill to make subordinate legislation.

45. The Examiner considered that most of the delegated powers are subject to the appropriate level of Assembly scrutiny. However, he was of the view that a number of the powers should be subject to draft affirmative procedure in order to afford the Assembly a higher level of scrutiny. These powers are covered in detail in the key issues section of the report.

46. The Committee began its formal clause-by-clause scrutiny of the Bill on 20 January 2011 and concluded this on 8 February 2011.

47. At its meeting on 25 November 2010 the Committee agreed a motion to extend the Committee Stage of the Bill to 11 February 2011. The motion to extend was supported by the Assembly on 6 December 2010.

48. At its meeting on 10 February 2011 the Committee agreed its report on the Bill and ordered that it should be printed.

Key Issues

49. During its consideration of the individual clauses of the Bill the Committee identified a number of key issues on which further information and clarification was sought from the Department. The Committee also considered a number of possible amendments to the Justice Bill.

Part 1 – Victims and witnesses

  • The provision of a reparation element in relation to the offender levy
  • The application of the offender levy to fixed penalty traffic fines
  • Double sanction
  • Diverting those suffering from mental health illness away from the Criminal Justice System

Clause 1 - The provision of a reparation element in relation to the Offender Levy

50. A number of organisations welcomed the principle of reparation provided for by the introduction of an offender levy. The need for offenders to be made aware of the reason behind the imposition of the levy so that they understood that the levy is a mechanism for holding them accountable for the harm that their actions cause to victims and witnesses of crime was also raised.

51. In response the Department highlighted that a levy will be imposed and announced by a judge formally and there will also be publicity when the scheme is introduced which will explain to the public at large, as well as offenders, that it is being introduced and what it is going to do.

52. The Committee discussed a proposal from a Member to strengthen the reparation element of clause 1 to provide the offender with the option of paying the levy or undertaking a limited amount of community service work. The point was made that the offender levy, as it was currently presented in the Bill, may not have the proper focus on reparation and, if the aim of introducing the offender levy was to get people to recognise they had done something wrong, then the clause needed to be strengthened in this way. There was the possibility that as the provision currently stood people would simply see it as an addition to a fine and it would not help in the process of offenders accepting that what they did was wrong.

53. Concerns were raised regarding the practicality of adopting this proposal for the small amount of money the levy involved, whether it would increase the costs of administration, the fact it would reduce the amount of money generated to support victims and the likelihood of complicating court proceedings. How the proposal would be applied to someone sentenced to imprisonment and how the victim could be part of the process was also discussed.

54. The Committee agreed it was content with the clause as drafted.

Clause 5 - The application of the Offender Levy to fixed penalty traffic fines

55. The Committee considered whether the offender levy should apply to certain road traffic offences, particularly fixed penalty traffic fines. Some Members felt that its application in this regard undermined the issue of reparation and victims and, while it should apply when someone had been hurt as a result of a road traffic accident, for other offences it could be seen as a revenue-raising power rather than helping to support victims. Others were of the view that it was important to send a message that all crime impacts on society.

56. The Department clarified that all the offences to which the offender levy would apply were offences that would lead to a person having their driving licence endorsed in court. It would not apply to non-endorsable offences such as parking tickets. The Department also confirmed that victims of car crime would be able to access the fund created from the offender levy.

57. In response to concerns raised that the levy would be imposed outside the judicial system the Department highlighted that the fixed penalty notice itself was imposed outside the judicial system as well and the person always had the option of refusing the fixed penalty notice and levy and having the matter dealt with by the court.

58. A majority of Members agreed that the offender levy should apply to fixed penalty traffic fines.

Clause 6 - Double Sanction

59. The issue of whether imposing a levy in addition to a custodial sentence created a double sanction was raised.

60. The Committee noted the Department's response that the law already provides for certain circumstances in which a custodial penalty is combined with other sanctions such as a fine or a compensation order.

Clause 12 - Diverting those suffering from mental health illness away from the Criminal Justice System

61. Although on the face of it clause 12 appeared to support people with mental health issues the Committee questioned whether it would actually make it easier for them to be drawn into the criminal justice system.

62. The Department confirmed that that was not the intention of the provisions which are supportive and come about as a result of pronouncements of the European Court of Human Rights on situations involving the vulnerable accused and how they have been treated. The Committee accepted the Department's explanation.

Part 2 – Live Links

  • A requirement that a trained mental health advocate should automatically be allowed to provide assistance at a psychiatric hospital
  • A requirement for the appellant to give written consent to the use of live links at preliminary hearings of appeals to the county court
  • Provision for when a live link breaks down
  • The need for a pilot study of the provisions to provide live links in cases where the accused is vulnerable

Clause 14 - A requirement that a trained mental health advocate should automatically be allowed to provide assistance at a psychiatric hospital

63. The Committee considered whether there should be a statutory requirement for a trained mental health advocate to be present during live links involving mentally disordered offenders.

64. The Department outlined that arrangements will be in place for assistance to be provided at a live link. This will include the patient's nurse, with their personal Consultant Psychiatrist (RMO) also being on site which will be an enhancement as RMOs do not typically accompany a patient to court. Shannon Clinic's advocacy service will also be available.

65. The Department indicated that to put a requirement for an advocate into the Bill could create a statutory requirement for advocates in all live links proceedings, given that clause 14 inserts text into the definitional section of live links law more generally which then applies to live links at all preliminary and sentencing hearings. There were also issues about the definition of "advocate". The Department undertook to ensure that a letter of guidance issued to RMOs regarding support in live links and to monitor the impact of clauses 12 and 14 as they are rolled out.

66. The Committee noted the arrangements that will be in place to provide assistance and was content subject to the Department fulfilling its undertaking that a letter of guidance would issue to RMOs regarding support during live links involving mentally disordered offenders.

Clause 16 - A requirement for the appellant to give written consent to the use of live links at preliminary hearings of appeals to the county court

67. The Committee considered a proposal from a Member that clause 16 should be amended to insert a requirement for the appellant to give written consent to a live link as advocated by the Human Rights Commission. The point was made that a preliminary hearing could last several days or in some cases weeks.

68. In response the Department clarified that this provision related to preliminary hearings for appeals to the County Court and not to the appeal hearing itself where a person would have a right to appear. The Department stated that a preliminary hearing could be on a straightforward issue that required to be dealt with in advance of the trial and feasibly could last a matter of minutes. The provision sits with other provisions on preliminary hearings where there is a right to make representations by the appellant or defendant in terms of the live link hearing but not to object.

69. A majority of Members agreed not to support the proposal.

Clause 16 - Provision for when a live link breaks down

70. The Department advised the Committee in a letter dated 20 January 2011 that it was proposing to make an amendment to set out what will happen if the live link breaks down. The amendment replicates what is provided for in parallel live link legislation for preliminary hearings so that there is a limit on the length of time a person can be remanded before the matter is brought back before the court. In normal circumstances a remand can be up to 28 days however where a clause 16(8) situation arises the limit in other scenarios is for a maximum 8 day remand and the proposed amendment would replicate this.

71. The Committee agreed with the Department's view that this amendment was valuable in terms of achieving consistency with other live links legislation and in providing a guarantee to appellants in ensuring that any rearranged hearing is held promptly. The Committee agreed that it was content with the proposed amendment.

Clause 19 - The need for a pilot study of the provisions to provide live links in cases where the accused is vulnerable

72. The Committee questioned whether there was a need for a pilot study of the provisions to provide live links in cases where the accused is vulnerable.

73. The Department highlighted that, in operational terms, the measures have been available since the early part of 2009. The technology and procedures around the use of live links, for evidence purposes, are therefore well established between the courts and practitioners and are already used in Youth Courts. As the reforms proposed seek to enhance rather than revise the existing scheme the Department believed that they can be incorporated into current practice without the need for a pilot study.

74. The Committee accepted the Department's rationale that a pilot study was not required.

Part 3 – Policing and Community Safety Partnerships

  • Establishment of PCSPs and DPCSPs
  • Requirement for meaningful consultation
  • Definition of anti-social behaviour
  • Statutory duty on public bodies
  • Payment of expenses
  • Designated organisations
  • Chair and Vice Chair
  • Finance

Clause 20 – Establishment of PCSPs and DPCSPs

75. When discussing the establishment of PCSPs and DPCSPs a number of Members indicated that there were concerns regarding the complexity of the Belfast model, how it would integrate with existing structures such as the West Belfast Community Safety Forum and PACT groups and the additional administrative and resource burden that it may place on Belfast City Council.

76. The Department suggested that the issues could be addressed when the guidance on the operation of the functions of the Partnerships is drawn up. Discussions were on-going to resolve the difficulties.

Clause 21 - Requirement for meaningful consultation

77. The Committee supported the view of Include Youth that it would be useful to strengthen clause 21 (1) (d) which requires a PCSP "to make arrangements for obtaining the views of the public about matters concerning the policing of the district and enhancing community safety in the district" by adding in the words "and fully considering" after "obtaining" to ensure genuine and meaningful consultation.

78. The Department indicated that it was willing to bring forward an amendment in relation to this matter and provided a draft which the Committee agreed it was content to support.

Clause 21 – Definition of anti-social behaviour

79. The Committee sought clarification of the definition of anti-social behaviour and requests were made for the Department and other criminal justice agencies to make a concerted effort to provide a much clearer definition.

80. The Department subsequently drew the attention of the Committee to the definition of anti-social behaviour contained within the Anti-social Behaviour (NI) Order 2004 which is behaving: '…. in an anti-social manner, that is to say, in a manner that caused or was likely to cause harassment, alarm or distress to one or more persons not of the same household [as the offender].'

Clause 34 – Statutory Duty on Public Bodies

81. While noting that there was support for this provision from many CSPs, DPPs, NILGA, the Policing Board and the PSNI, some of whom wished to see it strengthened, the Committee had serious reservations about the implications of the statutory duty that it would place on public bodies.

82. The Committee shared the concerns articulated by the Attorney General for NI when he attended Committee to discuss the matter. These centred around the wide scope of the clause and the corresponding potential for legal challenges, which could potentially be very costly. It was the Attorney General's view that the current provision is likely to give rise to a great deal of problems and claims without necessarily generating positive outcomes in improved policy making or thinking by the various public bodies.

83. The cost of implementing any requirements arising from this statutory duty and the associated additional administration was also of concern to the Committee, particularly given the current difficult financial climate.

84. The Committee wanted, and indeed expected, public bodies to do all that can reasonably be expected in relation to community safety. However, whether it was appropriate to place a statutory duty on them and whether they were ready for it was questionable. The Committee also had concerns about the language used in the clause which appeared to combine the actuality of a reduction in levels of crime and anti-social behaviour with perceptions of them which could give rise to a situation in which there was an actual reduction in crime, established by empirical methods of assessment, but the local community's perception might be that there had not been a reduction.

85. In response the Department stated that it regarded this clause as important to the future Partnerships. The intent was not to create a bureaucratic structure however there will be an obligation on organisations to demonstrate they are complying with the statutory duty.

86. In an attempt to address the concerns of the Committee, the Department provided draft amendments to clause 34 to:

i. remove the wider, more general, requirement for a body to '…do all that it reasonably can to enhance community safety'.

ii. limit the number of bodies impacted by the clause to those who will be prescribed by the Department through regulations.

iii. a strengthening of the requirement for consultation with other Departments prior to the issue of guidance on the clause – this aims to ensure the practical implications for Departments are addressed and that they have adequate opportunity to feed into the guidance. This guidance will, amongst other things, address how the duty may be fulfilled in the most proportionate way for an organisation in the delivery of its functions.

87. The Committee considered the draft amendment and questioned whether it addressed the concerns outlined by the Attorney General. Before reaching a decision in relation to the proposed amendment and the clause the Department advised that it was providing a different amendment.

88. The new amendment required the Department to secure the approval of the Attorney General before issuing any guidance as to how a public body should comply with the duty. When appearing before the Committee to discuss this amendment the officials advised that the Attorney General had seen it and thought that it should be taken a step further in two respects. The first was so that the duty of the public body was to the guidance which he has approval of and the second, to ensure that there is no wasteful litigation, was that the guidance will lay-out the extent to which failure by a public body to meet the guidance could be dealt with. The Department was therefore in the process of considering changing the amendment.

89. The Committee agreed that, if the clause, even as amended, still creates a statutory duty on public bodies and this is not sufficiently qualified, then it would not be acceptable. In the absence of a satisfactory amendment from the Department the Committee agreed to reject the clause in its entirety.

Schedules 1 and 2 Paragraph 4 – Payment of Expenses

90. In light of concerns raised by the Committee and stakeholders the Department advised the Committee that it proposed to introduce an amendment that would provide the councils scope to pay expenses to all members who do not receive them from their own organisation.

91. The Committee agreed that it was content with this proposed amendment.

Schedules 1 and 2 Paragraph 7 – Designated Organisations

92. Committee members questioned the Department on why, as a general principle, a small number of organisations should not be designated to give the partnership integrity and prevent the partnership, for whatever reason, accidently excluding an organisation. There was strong support during the Committee oral evidence event for this approach. The Committee was minded to include the Probation Board as one of the specified organisations.

93. In response, the Department advised that there was not a strong argument for saying that it would be inappropriate to designate a certain relatively small number of organisations who should always be present on a PCSP. However, the Department pointed out that it was taking the decision out of the hands of the local partnership, the elected members in the locality, and the independents appointed to that partnership. The consultation process on the principal of PCSPs and DCPSPs had indicated that a partnership of more than 30 people would not work because it was simply too big to be operationally effective enough in the locality.

94. Taking account of the views expressed, the Department provided a draft amendment that reflected the desire of the Committee and other stakeholders to see certain organisations designated. The proposed amendment would allow the joint committee, which comprises departmental officials and Policing Board representatives, to designate certain organisations without those organisations appearing on the face of the Bill.

95. The Committee considered the draft amendment but preferred instead the option of taking this forward by requiring the Department to produce a regulation, which would then come before the Assembly listing the proposed designated organisations for approval. This would place the decision-making in the hands of the Assembly which the Committee believed was the most appropriate place for it. The Committee agreed that an amendment on this basis should be drafted for consideration. In designating a small number of key organisations the Committee did not believe that it would seriously restrict the flexibility of the PCSPs as the likelihood was the designated organisations would be invited anyway. However it would ensure a consistent level of skills and expertise across the PCSPs and ensure that a locality could not take the view that they are not relevant and leave them out for whatever reason.

96. In response the Department offered two possible amendments. The first met the Committee's desire for a list of specified organisations for inclusion on every PCSP to be made by affirmative resolution. The second, which was the Department's preferred option, required the Joint Committee to issue a list of organisations which the PCSPs must actively and seriously consider for inclusion before designating organisations to be represented on the partnership. The Department hoped that this amendment addressed the Committee's concerns but would protect what it viewed as the necessary flexibility of the new partnerships to designate those organisations that are best placed to meet identified local issues.

97. The Committee was still of the view that there was a limited number of organisations that should be designated to participate in all the PCSPs and, to ensure that the list was approved by the Assembly, the mechanism to designate organisations should be by way of a regulation. The Committee agreed that Schedules 1 and 2, paragraph 7 should be amended accordingly.

Schedules 1 and 2 Paragraph 10 – Chair and vice-chair

98. The Committee considered a proposal from a Member that the chair of the PCSP should always be an elected member and should be appointed in the same manner as the chair of the policing committee — that is by the council using the same procedures that currently exist — which is that the office is held in turn by each of the four largest parties represented on the council immediately after the last local general election.

99. It was suggested that democratic accountability is key and therefore an elected member should be the Chair. This would also create better buy-in by the Council and put a greater responsibility on the elected member to make the case for and press the Council to support and contribute towards the PCSPs. If an elected member is not the chair there is a danger that Councils will not engage sufficiently and will not provide appropriate funding as there is no requirement or incentive for them to do so given that there is a minority of elected members on the PCSPs.

100. The Minister indicated that he does not believe that the statutory exclusion of independent members would be acceptable to the public at large – nor to the many current independent members of DPPs in particular. In his view it is not necessary to ensure the success of the PCSPs, and may be seen to impede the discretion of the new Partnerships to manage their affairs to best effect, which is one of his key principles in establishing them.

101. The Committee noted that independent members were not being excluded from the vice- chair post and agreed to amend Schedules 1 and 2, Paragraph 10 as outlined above.

Schedules 1 and 2 Paragraph 17 – Finance

102. The Department advised the Committee that as the scrutiny of the Bill had progressed, the need to clarify the means of funding for PCSPs has arisen. The Department was therefore proposing to amend Schedules 1 and 2 to ensure that the Department and the Policing Board's commitment to funding the PCSPs is conveyed and to include further detail on the actual mechanism for funding PCSPs – the Department intends to allow provision of a grant in advance of spend, rather than retrospectively.

103. The Committee agreed that it was content with the proposed amendments.

Part 4 – Sport

  • The time period around which powers would be applied to regulated matches
  • Definition of a missile
  • Addressing sectarianism in sport
  • Going onto the playing area
  • Laser Pens
  • Being drunk at a regulated match
  • Possession of drink containers etc
  • Possession of alcohol
  • Offences in connection with alcohol on vehicles
  • Sale of tickets by unauthorised persons
  • Designation of Stands

Clause 36 – The time period around which powers would be applied to regulated matches

104. The Committee considered the issue of the time period that would apply to regulated matches and questioned the Department on whether the proposed period of two hours before and one hour after a match was excessively long.

105. The Department indicated that, in light of concerns raised in relation to this issue, it proposed to make an amendment to reduce the period during which the powers would apply to regulated matches by half, to one hour before the match and thirty minutes afterwards.

106. The Committee agreed that it was content with the proposed amendment.

Clause 37 – Definition of a missile

107. The Committee had concerns that the wording used in clause 37 "to throw anything" was too wide and vague and could cover incidences when items such as a scarf or a cap were thrown. The Committee also queried whether the current law already in place was adequate to address any problems regarding throwing of missiles.

108. The Department explained that currently it is illegal to throw something onto the pitch if it constitutes an assault or attempted assault, but, in order to show that, it has to be shown that there was an intention to hit someone and cause injury. This new provision will provide the means to deal with behaviour that is dangerous and is not currently covered by the law. The Department conceded that technically a person could be arrested for throwing a scarf under the new provision, however a reasonableness test applies to all criminal law and in practice it would be very unlikely that a prosecution would take place.

109. The Committee supported the provision on the basis that it enhanced the current law and afforded extra protection to players, officials and spectators but asked the Department to consider including the word "missile" in the text of the clause to properly reflect what it was trying to achieve.

110. The Department advised on 28 January 2011 that, given the views of the Committee, it would introduce an amendment to clause 37 to provide greater clarity around missile throwing at regulated matches and focus more on those items likely to cause injury.

111. The Committee agreed that it was content with this proposed amendment.

Clause 38 and Clause 49 – Addressing sectarianism in sport

112. Whilst the Committee noted the Department's assurances that sectarianism was included under the more general definition in clause 38 it believed that, to send out the right message, it should be explicitly covered and was of the view that this would not be difficult to achieve.

113. In light of the views expressed by the Committee, the Department indicated that it was willing to explore the possibility of including sectarianism overtly in the clause. Subsequently the Department advised the Committee it proposed to introduce an amendment to add sectarianism to this provision and to the Banning Orders: "violence" and "disorder" provision.

114. The Committee welcomed the proposed amendments.

Clause 39 – Going onto the playing area

115. The Committee discussed concerns that had been raised regarding how this provision would be enforced and whether it was necessary to create a criminal offence or could pitch invasions be better dealt with by self-regulation by the relevant sporting bodies, particularly where there is a tradition of pitch invasions at the end of certain matches.

116. In response the Department indicated that the safety at sports grounds legislation has meant that fences and railings around pitches have been taken away and it is now very easy to get onto the pitch. The intention of this provision is to set a clear standard that, unless authorised to do so, people should not go onto the pitch. The relevant authorities can authorise an incursion if they wish to. The Department highlighted that all three of the sporting associations were in favour of the provision.

117. The Committee accepted the need for this provision as drafted.

Clause 40 – Laser Pens

118. The inclusion of laser pens within clause 40 (possession of fireworks, flares etc) had been requested by a number of respondents in evidence and the Committee asked the Department to explore this further.

119. Having looked at the matter the Department advised the Committee that the inclusion of laser pens in law is quite complex and laser pen control is a cross-cutting issue sitting in a wider health and safety context. The Minister of Justice does recognise the problems that these pens can cause and will take the issue forward with relevant Departments to achieve a future resolution of the matter. To include it in this provision at this stage would however be difficult. The Minister also gave a commitment that he will ensure that the importance of controlling such devices at sports grounds in particular is recognised.

120. The Committee was content with the explanation provided for not including laser pens in the legislation at this stage and welcomed the commitment made by the Minister to take the matter forward outside of the Justice Bill.

Clause 41 – Being drunk at a regulated match

121. While the Committee did not disagree with the objective of clause 41 it was very strongly of the view that the clause was unnecessary for two reasons. The first is that adequate legislation is already in place and enough powers are already available to deal with the situation. Also all three sporting organisations had confirmed that procedures are already in place to refuse entry or remove persons from their respective grounds if they behaved in a drunken and/or disorderly way.

122. The second reason is that the provision is unlikely to be enforceable. The fact is that the PSNI are in attendance at very few sporting matches and therefore reliance would be placed on stewards and volunteers to provide the evidence. Also the Public Prosecution Service, in written evidence, indicated that clause 41 does not include a definition of drunkenness. Accordingly an assessment of a defendant's condition is likely to be open to challenge on a number of grounds, including that such assessment is subjective and wrong, and it could be difficult in certain circumstances to satisfy the test for prosecution or prove the commission of an offence to the requisite criminal standard, namely beyond reasonable doubt.

123. In response to these views the Department stated that the provision was intended to clarify the law as there was doubt about whether a sports ground is a public place and whether the provisions that relate to drunkenness in a public place would apply. The Department believed that the clause was required as the current law may not be sufficient to deal with someone drunk in a sports ground. In response to a question, the Department stated that it was not aware of a particular example where a charge had been refused because the issue of whether the law applied inside a sports ground had been successfully contested.

124. The Committee did not accept the Department's arguments regarding the need for this provision and agreed to reject the clause in its entirety.

Clause 42 – Possession of drink containers, etc.

125. The Committee had strong reservations about this clause and whether it was necessary. Having discussed it with the Department the Committee is of the view that it would be very difficult to enforce and impractical to work.

126. The provision aims to prevent drinks containers being thrown or used as a weapon, with the resultant damage and injury that can be caused, by creating a criminal offence to be in possession of a bottle, can etc. The Department confirmed that other items such as flasks, baby's bottles etc that would not be considered as likely to normally be discarded could be allowed in at the discretion of the club. Views were expressed by the Committee that those items could do as much damage if thrown, if not more, than plastic drinks bottles.

127. The Department also confirmed that it is aware that in many instances, for safety reasons, sports clubs already remove drinks containers from spectators entering the ground but clause 42 is designed to provide the authority of the criminal law as an important supporting power. It offered to provide further guidance to clubs to make very clear what should be allowed in and what should not.

128. The Committee is of the view that self-regulation by the sporting organisations in this area is preferable to creating more criminal offences and agreed to reject the clause in its entirety.

Clause 43 – Possession of alcohol

129. Again, the Committee had serious reservations about the necessity for this clause for any of the sports. No evidence had been presented to the Committee to suggest that this issue was causing a significant difficulty or seriously disrupting the many sporting events that thousands of sports fans attend on a regular basis and which are ably managed by the sporting organisations themselves.

130. The Committee noted that Ulster Rugby had made strong representations about the application of this clause to rugby at Ravenhill stating that there was no evidence of disorder problems and alcohol consumption did not cause a problem in their sport.

131. The Department stated that it was its intention to take the legislative power and to move ahead with consultation to apply it to football. However, it would not be in any rush to apply it to either rugby or GAA. The clauses were drafted to allow varying application to different sports.

132. In response to the concerns of Ulster Rugby the Department proposed to amend the commencement of clause 43 to be subject to affirmative procedure and require full Assembly consent.

133. The Committee was concerned that varying the application of the provision to the different sports could be discriminatory. The punishment of 3 months imprisonment for possession of alcohol also seemed unfair given that the fine for being drunk is only £1,000.

134. The Committee was of the view that this provision is unnecessary at this point in time as the evidence has not been produced to show there is a problem that needs to be addressed. The provision would however have implications for the future financial viability of Ulster Rugby and, in relation to rugby and GAA, is inconsistent with legislation elsewhere in the UK and Europe.

135. The Committee does not support the creation of criminal offences where a need has not been justified and wishes to avoid creating "legislation for legislation's sake", particularly when self-regulation by the relevant sporting bodies is preferable and satisfactory.

136. The Committee agreed to reject the clause in its entirety.

Clause 44 – Offences in connection with alcohol on vehicles

137. The Committee raised concerns about the restrictions provided for in the provision when travelling home from a match and had questioned the logic of this. The Committee also questioned the need for the offence of being drunk in a vehicle.

138. The Department highlighted that there is a divergence of views between the sports on alcohol on vehicles. The IFA and the AONISC have suggested that the offence of having alcohol on vehicles going to and from a match should be dropped. However the GAA would welcome the offence for people travelling to matches.

139. In response to the Committee's concerns and taking account of the views of the sporting organisations, the Department proposes to amend clause 44 to remove entirely the offence of being drunk in a vehicle and to restrict the clause to only provide for an offence of consuming alcohol on a specified vehicle for journeys to a designated match. There would be no restrictions on the way home.

140. Whilst noting the views of the PPS regarding difficulties in proving the commission of an offence to the requisite criminal standard, on balance the Committee agreed that the proposed amendments to clause 44 largely addressed the concerns raised and should be supported.

Clause 45 – Sale of tickets by unauthorised persons

141. This provision only applies to football and the Committee noted that a question had been posed regarding whether this provision was about ticket touting or whether it was about ensuring segregation of rival supporters.

142. The Department informed the Committee that the IFA and AONISC had made representations that controls on the sale of tickets and segregation of rival fans can be addressed adequately by initiatives developed by the IFA in conjunction with Member clubs. The IFA intends to review the way tickets are distributed and sold for domestic games with a view to implementing new regulations for the start of the 2011/12 season to ensure that clubs can control and account for any tickets sold on their behalf.

143. In light of the IFA's suggestion that they can control the sale of tickets appropriately through self-regulation the Department advised that it intended to withdraw the ticket touting provisions.

144. The Committee was content with the proposed approach being adopted and agreed to support the removal of clause 45 from the Bill.

Schedule 3 – Designation of Stands

145. The Department advised the Committee that, at the request of the GAA, it intended to remove sports grounds at which there is a stand requiring a safety certificate thereby ensuring that the provisions only apply to matches at designated grounds.

146. The Committee agreed that this was a sensible approach which would avoid the legislation applying to matches with relatively low or minimal attendances and welcomed the proposed amendment.

Part 6 – Alternatives to prosecution

  • General principle of penalty notices
  • Guidance and training for police officers in relation to fixed penalty notices
  • Code of practice

General principle of penalty notices

147. The Committee noted that some respondents, in their evidence, had expressed disappointment that fixed penalties were being proposed as an alternative to prosecution and had outlined their preference for the use of other non-monetary diversionary options.

148. The need for alternatives to divert people away from the criminal justice system and address the root cause of the offending behaviour had been highlighted, and views had been expressed that these provisions should be held back until the current on-going strategic reviews of Youth Justice and the Prison Service and the development of the Reducing Offending Strategy had been completed.

149. Some Members indicated that they wished to see a community service option made available as an alternative to the payment of a fine.

150. In response, the Department stated that the major concern about offering a community service option is the cost of doing so. Officials indicated that the cost of supervised activity orders, where a probation officer is involved in setting up the opportunity, making sure the arrangements are made and checking that the person has turned up and completed their allotted number of hours is in the region of £1,000 a case. To introduce a community service option in these types of cases could be very expensive. The benefits of introducing penalty notices for minor offences included reducing police, prosecution and court time and a possible reduction in delay in the justice system.

151. The Department also highlighted that there are already a range of existing diversionary measures – based around restorative interventions, warnings and cautions – which act as alternatives to prosecution. It was also of the view that these new provisions are compatible with the development of a wider strategy on reducing offending.

152. The Committee agreed that it supported the general principle of penalty notices as provided for in this part of the Bill.

Clause 69 - Guidance and Training for police officers in relation to fixed penalty notices

153. The Committee sought assurances from the Department that appropriate guidance and training would be available for police officers given these provisions enhance their discretionary powers.

154. The Department confirmed that it would produce clear guidance on the issuing of fixed penalty notices and indicated that the PSNI will undertake staff training before the provisions are implemented. The Department also advised that in terms of internal monitoring, supervisory officers will check and verify all penalty notices issued and operational experience will also be subject to external reviews by inspectors from Criminal Justice Inspection NI.

155. The Committee was content with this response.

Clause 82 – Code of practice

156. Clause 82 requires the Department of Justice to prepare a code of practice in relation to conditional cautions. A number of respondents to the Committee consultation highlighted the importance of an effective code of practice in order to ensure integrity and effectiveness of the application of conditional cautions. The code of practice (or any amending code) must be laid before the Assembly in draft, after which the Department may make an order to bring the code into operation.

157. The Examiner of Statutory Rules drew the attention of the Committee to the fact that this provision is modelled on section 25 of the Criminal Justice Act 2003 for England and Wales, with the exception that in England and Wales, an order under the Criminal Justice Act bringing a code of practice into operation is subject to draft affirmative procedure. An order under the corresponding provision of this Bill is however subject to negative resolution.

158. The Examiner of Statutory Rules was of the opinion that the provision for England and Wales seems to work better in terms of scrutiny and terms of procedure generally: presumably the Department would lay both the draft code of practice and draft order at the same time for approval, and that seems to make sense.

159. The Committee agreed with the view of the Examiner of Statutory Rules and wrote to the Minister of Justice requesting that he bring forward an amendment so that the order making power provided in clause 82 would be subject to the draft affirmative procedure rather than the current negative procedure.

160. The Department responded indicating that the Minister will amend the Bill to make the powers within clause 82 subject to draft affirmative procedure.

161. The Committee welcomed the proposed amendment.

Part 7 – Legal Aid, etc.

  • Eligibility for criminal legal aid
  • Assembly scrutiny of clauses 85 and 89
  • Litigation Funding Agreements

Clause 85 – Eligibility for criminal legal aid

162. The proposed introduction of a fixed means test for criminal legal aid, which this clause would allow for, attracted a range of responses, many of which outlined concerns. Views expressed included the need for the levels of eligibility to be set appropriately to ensure effective representation for those who appear before the Courts, the need for the interests of justice test to take precedence over means testing, and clarification of the likely costs of the administrative arrangements as the potential for savings may outweigh the likely delays and increased administration.

163. The Committee received a briefing on the results of research commissioned by the Department into the impact of introducing a new means test for criminal legal aid. The research indicated that any significant savings could only be achieved by reductions in the eligibility rate of 10% or more. The Minister made it clear to the Committee that any proposals for a fixed means test would require very close scrutiny prior to any possible implementation. However, given the current Legal Aid bill and difficult financial situation, he believes it is worth exploring further. The option of introducing a fixed means test for criminal legal aid should therefore be kept open through the provision of the enabling cause.

164. The Committee was content to provide for an enabling clause in the Bill but given the impact on access to justice that the introduction of a fixed means test for criminal legal aid could potentially have, it wished to ensure that any Rules arising from this power would be subject to rigorous scrutiny and debate. This matter is dealt with in the following paragraphs.

Clauses 85 and 89 – Assembly scrutiny

165. In relation to clause 85 (2) the Committee agreed that this is a particularly important power that merits thorough Assembly scrutiny, especially as it relates to applications for legal aid in criminal proceedings and it should be subject to draft affirmative procedure rather than negative resolution.

166. In relation to clause 89 (2) and (4) the first regulations made under new Article 27A are subject to draft affirmative procedure but subsequent regulations are subject to negative resolution. The Committee noted that this formulation no doubt followed a precedent enacted at Westminster (probably as a pragmatic compromise in the interests of parliamentary time there) and agreed with the view of the Examiner of Statutory Rules that it would be more logical and satisfactory that all regulations made under new Article 27A should be subject to the draft affirmative procedure.

167. The Committee wrote to the Minister of Justice requesting that he amend clauses 85 (2), 89 (2) and 89 (4) so that the powers contained in them would be subject to the draft affirmative procedure.

168. The Department responded to the Committee indicating that the Minister had concerns about the proposed recommendations.

169. The Department outlined that currently legal aid regulations cover a myriad of situations and the insertion of an affirmative procedure at this stage and in one specific context could have wider knock-on effects. The Department stated that every adjustment, no matter how minor, e.g. a change in state benefit regulations which necessitated a change to the legal aid Rules or Regulations, would require debate on the floor of the Assembly. Consideration would also need to be given to all other legal aid procedures and the structure of the regulations themselves would need to be unpicked and rewritten.

170. Given the structure of the legal aid regulations system, and the time available, the Minister was not minded to make the proposed amendments. He did however undertake to consider the recommendations with a view to assessing Assembly control procedures around legal aid regulations more generally.

171. The Committee strongly believed that these powers, particularly in relation to a fixed means test for criminal legal aid, should be subject to the higher level of scrutiny that would be provided by the draft affirmative procedure and agreed that, in the absence of amendments from the Department, it would request that appropriate amendments be drafted for consideration.

172. Given the strongly held views of the Committee in relation to this matter the Minister asked officials to look again at finding a solution. The Department responded by proposing a draft amendment to provide for affirmative procedure when the Rules in clause 85 are being considered for the first time.

173. The effect of this would be that both of these new and key powers would be subject to full public and Committee consultation followed by an Assembly debate the first time they were brought forward. While this would, in the interim, leave any future adjustments to be made by the negative resolution process the Minister recognises the concerns of the Committee and will make this a key aspect of his wider review of legal aid rule making. Proposals for such a review will be brought to the Committee and the review will be concluded before any substantive proposals emerge to amend Rules 85 or 89 by negative resolution.

174. The Committee accepted that the proposed amendment from the Department provided for full and rigorous scrutiny of the principle and procedures for the introduction of a fixed means test for criminal legal aid and therefore satisfied its requirements. The Committee also welcomed the commitment by the Minister to undertake a wider review of legal aid rule making.

175. The Committee agreed that the Rules in clause 85 and clause 89 should be subject to affirmative procedure when being considered for the first time.

Clause 90 – Litigation Funding Agreements

176. The Committee noted that the Legal Services Commission is in discussions with the Bar Council and the Law Society in relation to the development of an alternative funding arrangement for handling money damage claims.

177. The Committee was therefore of the view that it is appropriate to take the option provided for in clause 90 to provide Litigation Funding Agreements in the future if that is identified as the preferred route either by itself or in conjunction with other methods of funding money damage cases.

Part 8 – Miscellaneous

  • Assembly scrutiny of Magistrates' Court Rules
  • Rules Committee Membership

Clauses 95 and 99 – Assembly scrutiny of Magistrates' Court Rules

178. The Committee considered the advice provided by the Examiner of Statutory Rules in relation to the background and reasons why rules made by the Magistrates' Court Rules Committee (and the County Court Rules Committee) are not subject to Assembly procedures unlike rules made by other Court Rules Committees.

179. The Committee noted that the difference in scrutiny accorded to different court rules probably had more to do with historical origins than logic or principle and a change in the position to make Magistrates' Court Rules and County Court Rules subject to negative resolution would not be unduly complicated, requiring amendment in primary legislation.

180. As such a change appeared to be logical and consistent with the level of scrutiny of other Court Rules, the Committee wrote to the Minister of Justice seeking his views on changing the position so that Magistrates' Court Rules and County Court Rules would be subject to negative resolution procedure and the feasibility of taking this forward by way of amendments to the Justice Bill.

181. The Minister agreed that it would be preferable for the same level of scrutiny to be applied to all court rules. However, he highlighted that the proposal does have implications for rules dealing with excepted matters for which the Lord Chancellor continues to exercise responsibility.

182. The Minister indicated that he had asked for the matter to be raised with officials in the Ministry of Justice with a view to bringing forward the necessary changes. While it is unlikely that the necessary provision can be included in this Bill he gave an undertaking that the changes will be brought forward in the next available Bill after consultations are complete.

183. In the interim he assured the Committee that, notwithstanding the absence of legislative provision, Magistrates' Courts and County Court rules have in practice complied with the conventions applicable to Rules subject to negative resolution procedure. The Secretariat to the Rules Committee is also mindful that Departmental Committees may consider any rule dealing with a transferred matter whether or not it is subject to Assembly procedure and will ensure the Justice Committee is consulted through the Rules forward work programme.

184. The Committee is content with the assurances provided regarding consultation and welcomes the Minister's commitment to bring forward the necessary provision in the next available Bill.

Clauses 96 and 97 – Rules Committee Membership

185. In response to comments from the Committee on the need for clarification in relation to the wording of clauses 96 and 97 regarding a person nominated by the Attorney General for membership of the Crown Court Rules Committee and the Court of Judicature Rules Committee, the Department proposed to amend the Bill to specify that the Attorney General's nominee shall be a practising member of the Bar or a practising solicitor. The amendments would ensure that the necessary qualifications of the Attorney's nominee(s) on the Rules Committees were specified in similar manner to those of the other members.

186. The Committee agreed that it was content with these proposed amendments.

Consideration of the Bill by the Committee

187. In response to a call for evidence, the Committee received 69 written submissions, took oral evidence from 16 organisations and heard from a further 21 organisations at a stakeholder evidence event in relation to the Policing and Community Safety Partnership clauses.

188. Those who provided evidence to the Committee welcomed the introduction of the Bill. There was however a wide range of views expressed on its contents and there were issues within it which raised concerns. The Committee explored these with the Department both in writing and during the oral evidence sessions.

Part 1 – Chapter 1: The Offender Levy

189. This Chapter contains the power for a financial levy to be imposed by the court on conviction or attached to any voluntarily accepted non-court imposed penalty.

190. There were several issues raised on this Chapter of the Bill. These included the general principle of an offender levy; administration of the levy; ability of offenders to pay; deductions from prisoners' earnings; use of victim impact statements; offender levy on penalties such as road traffic offences; and the amount of the offender levy.

General Principle of introduction of an offender levy

191. Organisations such as Victim Support Northern Ireland, the Probation Board for Northern Ireland (PBNI) and the Northern Ireland Association for the Care and Resettlement of Offenders (NIACRO) welcome the principle of reparation.

192. Some respondents however highlighted that offenders must be made aware of the reason behind the imposition of the levy in order that the offender understands that the levy is a mechanism for holding them accountable for the harm their actions cause to the victims and witnesses of crimes.

193. British Irish Rights Watch (BIRW) opposes the levy as it imposes a financial sanction in addition to a penal sanction which it considers to be a contravention of Rule 57 of the United Nations Standard Minimum Rules for the Treatment of Prisoners and Rule 2 of the European Prison Rules 2006. BIRW stated that the deprivation of liberty is the punishment for a crime and that punishment should not be exacerbated by any further deprivation.

Administration of the levy

194. Some organisations expressed concerns in relation to the administrative costs of the scheme which could outweigh the potential benefits and the need for the scheme to be administered efficiently and effectively was emphasised. Victim Support stated that the funds created must be an additional source of funding to support initiatives that protect the victim from further harm and underlined that the funds must be ring fenced for this purpose.

195. The Committee sought further information from the Department on the anticipated cost of administering the offender levy and the use of the funds collected.

196. The Department stated that it would maintain the principle of using levy revenue exclusively to support services meeting victims' needs. It proposes that the revenue from the levy is ring-fenced through an administrative arrangement with the Department of Finance and Personnel (DFP) and used for the sole purpose of resourcing the dedicated victims of crime fund. Confirmation of the arrangements is awaited and, in the interim, implementation of the levy will not commence until DFP has reached agreement on the way forward.

197. Regarding the administration of the levy, the Department advised that implementation of the levy would incur one-off capital costs of around £100,000 with the day to day administration cost largely absorbed within existing administrative processes. Around 5% of disposals will not map onto existing administration arrangements and the Department therefore proposes to phase implementation over 3 years. The combined effect of phased implementation and the lead-in time to imposition on qualifying disposals means that levy revenue will build steadily, achieving a significant revenue return by year 3 and reaching its fullest potential – a maximum of £500k per year – in years 4 to 5 of its operation.

198. The Department also confirmed that the Victims of Crime Fund would pay for projects that support victims and witnesses during their engagement with the justice process, as well as small local initiatives working with victims in the community. The Fund would be managed centrally by the Department of Justice, within existing departmental financial management structures, without incurring any additional running costs. The Fund would also be clearly separated from other funding streams, which would provide transparency and accountability on the movement of money into and out of the Fund. The Department will be required to report regularly to DFP and Treasury on its operation, and will publish data on revenue, spend and projects supported.

199. The Committee noted the assurances provided by the Department regarding the use of the funds for victims projects and that administration costs were not excessive.

Ability of offenders to pay

200. A number of respondents, including the Women's Support Network (WSN), Women's Aid Federation Northern Ireland and Include Youth, expressed concerns regarding the ability of offenders to pay. The Bar Council indicated that at the heart of the offender levy scheme must be the ability of the convicted person to pay any of the amounts sought yet those who are responsible for causing the greatest impact on victims arising from their crime are those least likely to be able to pay either fines or levies. Extern expressed concerns that, as many offenders have limited financial resources, such a levy may lead a person into further crime rather than enabling rehabilitation.

201. The Northern Ireland Human Rights Commission (NIHRC), while welcoming the provision in clause 1 (9) regarding the ability of the court to reduce the levy and/or fine in certain circumstances, sought assurances that the court should have effective mechanisms to assess an offender's means prior to sentencing. Concerns were also expressed by several respondents that the provisions for remitting the levy within clause 4 (3) will not resolve the wider issue of the number of fine defaulters going through the criminal justice system.

202. In response to the issues raised, the Department of Justice advised that provision has been made which will allow the courts to consider the issue of means in relation to the levy. The amount of the levy may be reduced (to nil if necessary) by the court in circumstances where a victim compensation order has been given, and it has been determined that the offender does not have the ability to pay both the compensation order and the levy. This is to ensure priority is afforded to securing the payment of compensation awarded by the court to the direct victim of the offence. Where the ability to pay both the compensation order and the levy is not an issue, then the levy will not be reduced.

203. Additionally, in circumstances where it is assessed by the court that the offender does not have the means to pay both a court fine and the levy, it will be the court fine and not the levy which may be reduced to an appropriate level. Whilst some may perceive this as potentially diminishing the penalty for the offence, it is a reflection of current practice in relation to the imposition of court fines. When a fine or other financial order is imposed at court, there is already statutory provision for the court to consider the offender's means and to reduce the fine if necessary to a level which it is assessed the offender is capable of paying.

204. As with other monetary orders imposed by the court, if the offender is unable to pay in full by the due date, he/she will be able to make an application to the court for an extension of time in which to pay, or to agree payments by instalment. This means that those who may have particular difficulties are given the appropriate assistance to help them make payment.

205. The levy is a comparatively modest amount in most cases and, with the existing arrangements in place to assist offenders to make payment, the Department believes that the levy amount is unlikely to place significant hardship on an offender. Also a court cannot set a default period of imprisonment for non-payment of the levy. The higher levy rates of £25 and £50 are attached to immediate custody disposals, where the Bill makes separate provision for the collection of the levy through deductions from prisoners' earnings.

Deductions from prisoners' earnings

206. BIRW states that the proposal to deduct the levy from a prisoner's earnings contradicts European Prison Rule 26.10 which provides for an 'equitable system of remuneration' and that to work without payment offends Article 4 of the European Convention on Human Rights in addition to undermining the rehabilitative nature of gainful employment whilst in custody. Further there is no proposal for a means test or consideration of the financial status of juvenile offenders.

207. The NIHRC also states that the proposal that prisoner earnings should be deducted to meet the costs of the levy should be considered in the context of the human rights standards that govern prison regimes.

208. NIHRC, like BIRW, refers to European Prison Rules highlighting that the European Prison Rules state (rule 105.5) that "In the case of sentenced prisoners, part of their remuneration or savings from this may be used for reparative purposes if ordered by a court or if the prisoner concerned consents". Reference is also made (Rule 103.7) to a "programme of restorative justice" which envisages a broader incorporation of restorative principles than a mere financial penalty. The NIHRC considers that it is also important to view the proposal within the wider context of Rule 26 which states that prison work should never be used as a punishment (European Prison Rules, 26.1); prisoners may also be encouraged to save part of their earnings (26.12); sufficient work of a useful nature should be provided (26.2); prisoners should be able to spend at least part of their earnings on approved articles, and to allocate a part of their earnings to families (26.11). These concepts are also referred to in the Basic Principles for the Treatment of Prisoners (8) and Standard Minimum Rules for the Treatment of Prisoners (76.2).

209. The NIHRC concludes that the proposal to deduct the levy from prisoners' earnings needs careful consideration as the amount earned by prisoners may vary considerably, for example due to the availability of work in particular prison establishments. The negative impact that weekly deductions may have upon vulnerable prisoners and on staff/prisoner relations may require further risk assessment.

210. The Prisoner Ombudsman suggested that when determining the rate at which the offender levy can be deducted from a prisoner's earnings, various factors should be taken into account, namely that prisoner earnings have not increased in 8 years; prisoners who have no family to supplement their prisoner earnings find it difficult to make their earnings cover those basic needs which are not provided for by the prison; and prisoners should continue to be encouraged to work and motivated to do so and the level of any levy taken off their earnings should not act as a discouragement to work.

211. The Department advised that Rule 26.10 is that dual work will be provided for prisoners and there should be adequate remuneration for any work that is undertaken. It is a matter for each member state to set the earnings levels. That is something that the Northern Ireland Prison Service has done with the basic, standard and enhanced regime providing the opportunity to earn £6, £11, and £20 per week respectively.

212. Provision has been made to deduct the levy by instalment from earnings at a consistent rate across all the regime levels (potentially £1.00 per week). The Department considers that this would be both proportionate and would provide no disincentive to prisoners to progress to higher regime levels. In doing so, they increase their earnings capacity enabling them to afford to buy non-essential items in prison without requiring financial help from families and, if they choose, to pass money to their families or save towards their resettlement.

Use of Victim Impact Statements

213. The NIHRC states that in cases where a victim impact statement is introduced this may have the potential to influence the court in its consideration of a levy. The Commission wished to see the introduction of a clear protocol regulating the use of Victim Impact Statements as is the case in England, Wales and Scotland.

Offender levy on certain penalties such as road traffic offences

214. The Bar Council noted that the levy can be applied in respect of certain penalties in the Road Traffic Offenders (NI) Order 1996 and asked whether in principle it is right for someone who breaks a speed limit to be obliged to contribute to this levy in circumstances where it could not be said that there was any victim of such an offence.

215. In response, the Department of Justice holds the view that attaching the levy to the proposed road traffic offences (those attracting licence endorsement such as driving at excess speed, using a mobile phone whilst driving and parking at a pedestrian crossing), which have the potential to lead to more serious accidents and fatalities, is appropriate and that no offence which causes concern to the public is 'victimless'.

Amount of the offender levy

216. In response to concerns raised by the Committee during the policy consultation stage, the Department of Justice introduced in the Bill a two-tier rate on immediate custody sentences, which reflects the greater harm caused to victims by those who commit more serious and violent offences. £50 will apply to those who are serving sentences of more than two years, and £25 will apply to those who are serving sentences of two years or less.

Part 1 - Chapter 2: Vulnerable and Intimidated Witnesses

217. This Chapter amends the Criminal Justice (Northern Ireland) Order 1999 to introduce improvements to the special measures provisions and deal with some procedural changes.

218. There were several issues raised on this Chapter of the Bill including the general principle of enhancing special measures; the need for balance; special provisions relating to sexual offences; presence of supporters; definition of the role and qualifications of an intermediary; and mental health and the criminal justice system.

General Principle of enhancing special measures

219. There was widespread support among the respondents, including the Police Service of Northern Ireland (PSNI), BIRW, Victim Support NI and Extern for any enhancement of the current provisions for special measures.

220. Victim Support did however highlight its concerns that the prevailing measures are not being deployed to their fullest extent and questioned if new legislation will therefore be effective. This view was also raised by a Committee Member who referred to a 2006 report commissioned by the Home Office that looked at how the provisions were implemented in England and Wales. In many cases it was found that the measures were not being implemented properly, prompting the question of whether extra legislation is needed or whether existing legislation needs to be properly enforced. Victim Support NI indicated that awareness is the key point to improve delivery and the proposals in the Bill, with the intention of giving somebody the opportunity to give better evidence, should improve the process of justice.

221. The Department of Justice highlighted that it has established a Vulnerable and Intimidated Witness sub-group of the Victim and Witness Task Force to address concerns that eligible witnesses were not being considered for special measures assistance and other operational issues which were raised during the evaluation of the effectiveness of special measures.

Need for balance

222. The Bar Council states that whilst there is a general recognition that certain witnesses require special facilities to enable them to give their evidence most effectively, practitioners have guarded jealously the oral tradition of the criminal trial process and have striven to ensure the fairness of a trial is never compromised by impediments being put in the way of a witness's evidence being effectively tested. It is imperative that the Courts continue to play an important role in ensuring the new provisions are applied in a way that will meet the needs for justice in a particular case.

223. Similar concerns were expressed by a Committee Member during the oral evidence stage regarding the importance of balance and assurances were sought that, in the special measures provisions, the balance has not been pushed too much in the direction of the prosecution and away from the defence.

224. In response, the Department of Justice states that the purpose of the special measures provisions, which have been in place for 10 years now, is to get the best and most accurate evidence. It is not about favouring the prosecution over the defence but about allowing a witness, who may have been through very difficult circumstances, to give the best and most accurate account of what happened to them. That is what underlies the special measures provisions and the new guidance that is issuing on special measures is called 'Achieving Best Evidence'.

Special provisions relating to sexual offences

225. WSN and Women's Aid note that clause 9 enables adult complainants of sexual offences to automatic entitlement of video recorded evidence in chief; however this does not apply for proceedings taking place in a Magistrates Court. Both organisations believe that this clause fails to recognise that, in domestic violence cases, there is often an element of sexual violence involved and that women seeking non molestation orders in Magistrates Courts may have been subjected to sexual violence by respondents. WSN and Women's Aid Federation NI wish to see the special provisions in clause 9 extended to cases of non molestation orders in Magistrates courts.

226. In response, the Department of Justice advised that adult complainants, who are called as witnesses in sexual offence proceedings, are automatically eligible to be considered for special measures assistance. However, as part of its commitment to reduce the rate of victim withdrawal of complaints in sexual offences cases (or in a sexual offence and other offence), the Department wishes to go a step further and provide greater certainty to adult complainants in sexual offence cases, which include rape, buggery, indecent assault and incest, that they will be able to give their evidence in chief by way of a video recorded statement.

227. Clause 9 therefore makes provisions in favour of admitting the video recorded statement of adult complainants in respect of sexual offences tried in the Crown Court, when an application to do so is made and the court is satisfied that the requirement would be likely to maximise the quality of the complainant's evidence. The provision applies to the Crown Court as, due to the serious nature of these offences, they tend to be heard in that court tier. If a case is heard in the Magistrates court, a special measures application can still be made. There is just not the presumption in the legislation in favour of granting it.

228. In relation to requests that this provision should apply to proceedings relating to breaches of non-molestation orders in Magistrates courts, the Department advised that victims who have experienced domestic violence can be considered as eligible for consideration for special measures assistance by virtue of Article 5 of the 1999 Order (witnesses eligible for assistance on the grounds of fear or distress about testifying).

Evidence by Live Link - Presence of supporter

229. With reference to presence of supporters for those providing evidence by Live Link, MindWise recommends that the person who supported the vulnerable person in the police station is best placed to offer further support to the person when giving evidence by video link and that the advocacy role should be someone from the trained mental health field.

230. MindWise recommends that the services of a trained advocate (not Counsel/Barrister) be called upon to support the person (now to give evidence by intermediary). If that person required the help of an appropriate adult during the investigative stage of the enquiry this is considered to be good evidence that the services of an advocate as intermediary are required.

231. The Law Society suggests that appropriate guidance be provided to supporters to ensure they are fully aware of their role and that such guidance should safeguard against the possibility of the content of the witness's statement being improperly influenced.

232. In response the Department of Justice outlined that these issues would be covered in the guidance document, 'Achieving Best Evidence', which is due to be published in early 2011. The guidance will set out standards for supporters in the Live Link room. These will include the role of the supporter; who can act as a supporter (generally speaking, it can be anyone known to the witness who is not a party to the proceedings and has no detailed knowledge of the evidence in the case); what skills they require; and standards for conduct. Standards for conduct include how they should act whilst in the Live Link room and contact with the witness. For example they must remain visible to the courtroom when the witness is giving evidence and they must not prompt or influence the witness in any way.

233. The Department also highlighted that the clause provides that the court determines who the supporter is, whilst taking the views of the witness into account. As with other special measures directions, the court has the power to discharge or vary the direction.

Definition of the role and qualifications of an intermediary

234. Concern was expressed by respondents that there is no definition of 'intermediary' and there is insufficient detail regarding the characteristics and role of intermediaries and what level of expertise and experience will be required. The Law Society suggests that it should be made clear that an intermediary's duties to support a defendant extend to assist the accused to understand the proceedings and to facilitate consultation and communications with his/her legal team.

235. Regarding the definition of 'intermediary', the Department considers that Article 21BA(4), of the Criminal Evidence (Northern Ireland) Order 1999, which outlines the intermediary's function, provides an adequate definition of an intermediary. The Department considers that it would not be practical to specify who can act as an intermediary in the legislation as they can come from such a wide background of roles and occupations. The aim is to keep it as flexible as possible to tailor services specifically to victims. The legislation attempts to provide the courts with enough latitude to provide an intermediary where necessary and not tie its hands by stating specifically who the intermediary should be.

236. The Department confirmed that guidance would issue when the intermediary service for the vulnerable accused goes live.

237. In relation to expertise and training of intermediaries, which the Committee pressed the Department on during oral evidence, the Department advised that it is planned that intermediaries will come from a wide background of roles and occupations, including social workers, psychologists, speech and language therapists, occupational therapists, those in the medical profession and teachers. Intermediaries will have to apply to become a "Registered Intermediary" and, if successful at interview, will then be expected to undergo an accreditation and assessment process to provide them with the necessary knowledge and skills to meet the required standards for the role. The court will have a list of people who have been trained and qualified from which it can pick those who have the skills or expertise required in any specific case.

238. The accreditation and assessment course will prepare prospective intermediaries to understand their role in the criminal justice system. They will learn about relevant criminal law and procedures, and about stakeholders and participants with whom they will be working to enable them to operate effectively and credibly. The course currently costs £2,000 per person and this is a cost which the Department plans to meet. The overall cost of the training will however be dependent on how many people apply to be registered as intermediaries and who are successful at interview.

Mental health and the criminal justice system

239. The Law Society cited the Bradley report in England and Wales and the Criminal Justice Inspection Northern Ireland report 'Not a Marginal Issue: Mental Health and the Criminal Justice System in NI' which emphasised the importance of diverting those with mental illness away from criminal prosecution and stated that the proposals within this clause would appear to be contrary to this emphasis.

240. The Law Society is aware that when similar proposals were put forward for England and Wales, these were subjected to scrutiny by the Houses of Parliament Joint Committee on Human Rights and that the Committee raised significant concerns that the proposal may result in the criminal prosecution of the mentally unfit. The Law Society emphasises that in considering this proposal, sufficient regard must be had to Article 6 of the European Convention of Human Rights which states that an accused must be able to effectively participate in his/her trial. This includes understanding the nature of the trial process and the significance of any penalty imposed. The Law Society highlights that the assistance of an intermediary is unlikely to overcome such a lack of understanding. The Law Society states that the Joint Committee on Human Rights recommended the Government consider asking the Crown Prosecution Service and the Judicial Studies Board to consider issuing guidance, making clear the scope of the right to effective participation in criminal proceedings and highlighting circumstances where the use of an intermediary would be appropriate and highlighted that the Justice Committee may wish to make a similar recommendation.

241. During oral evidence the Department of Justice outlined that it would be a decision of the court, based on the evidence provided, whether examination through an intermediary was allowed. The Department acknowledged that there has been some concern that this provision may result in the criminal prosecution of the mentally unfit. However, it should be noted that the assistance of an intermediary is applied for by the accused's legal representative not the Public Prosecution Service.

242. While the Department believed some progress had been made in recent years to assist defendants in their understanding of the proceedings in which they are being tried, it considered that more could be done, and that there is therefore merit in extending the intermediaries special measures provision to vulnerable defendants who would benefit from an intermediary to assist them when giving evidence, to ensure that they receive a fair trial.

Part 2 – Live Links

243. This part of the Bill expands the use of Live Links facilities in courts to include physical disability and provide for defendants or patients who have a psychiatric illness. Live Links will also be available for a wider range of appeals, for sentencing hearings in a county court as well as bail hearing in the High Court.

244. The main issues raised in relation to Part 2 of the Bill regarded the general principle of the use of Live Links and also their use for vulnerable accused.

General principle of the use of Live Links

245. Most respondents regarded the use of Live Links as a valuable tool to enable all to have access to justice. The Bar Council and the Law Society were however cautious about the use of Live Links as they are not convinced that the objective of giving 'best possible evidence' is achieved by such measures.

246. The Northern Ireland Human Rights Commission (NIHRC) states that the European Convention principle (from Article 6) that court hearings should be "public" creates a strong presumption that, in particular, the defendant in a criminal case should have the right to be physically present in the courtroom for all elements of the process. The NIHRC has in the past (in relation to the draft Criminal Justice Order of 2008) objected to the use of Live Links for sentencing and appeal hearings, particularly in the latter case where there was no requirement for the appellant's consent. This Bill extends the use of Live Links.

247. On further consideration and having regard to the recent Criminal Justice Inspection Report on prisoner escort and court custody, the Commission is, however, persuaded that in the circumstances addressed by the Bill, the use of Live Links ought not to amount to a significant intrusion on the Article 6 right and has a potential to reduce the delays, inconvenience and costs of prisoner transport and court custody, overcoming the issue of segregation of male and female prisoners in transit, and, to a small extent, reducing escape risk. The NIHRC positively welcomes clauses 11, 14 and 19 as working in the interests of vulnerable groups, but would prefer that clause 16 (Live Links at preliminary hearing on appeals to the county court) be amended to insert a requirement for the appellant's consent.

248. MindWise supports the provision for the use of Live Links for those accused under 18 years whose level of intellectual ability or social functioning compromises his/her ability to give evidence in court, or as an adult of 18 years if he/she suffers from a mental disorder with a significant mental health impairment assuming the same assistance is afforded when giving evidence by video link as when attending in person.

249. MindWise stated that an advocate in supporting vulnerable people should be present to ensure the level of understanding takes place regarding administering and accepting the oath and the giving of evidence via a TV link. MindWise recommended that if a person required the help of an appropriate adult during the investigative stage of the enquiry this is considered good evidence that the services of an advocate as intermediary are required and the services of a trained MindWise advocate should be the default intermediary in relation to Shannon Clinic.

250. The Bar Council stated that it should be remembered that the purpose of the special measures and Live Link provisions is to ensure that 'vulnerable' witnesses give their best possible evidence in criminal proceedings and that it is not necessarily the case that this is achieved by the use of video evidence or Live Link evidence. It is generally recognised that witnesses make a bigger impact on juries when they give evidence live in court. The Bar Council considers that there is the risk that the over use or automatic use of special measures could result in a dilution of the effect of such evidence and not necessarily serve the interests of justice.

251. The Law Society advised that a number of practitioners consider that defendants find it difficult to understand and participate in proceedings and communicating with clients can be problematic, particularly when it comes to taking instructions. The Law Society noted that it is proposed that persons remanded to hospital or who are subject to a hospital order may be able to appear via Live Link. The Law Society cautioned against the burden of prisoner movement being given primacy over a defendant's right to a fair trial.

252. In response, the Department of Justice advised that the Live Link package contains a series of procedural protections and controls to ensure a fair trial and access to justice for all defendants whereby appellants can make application or representations; where consent is required; and where the court must be satisfied that a Live Link is in the interests of justice. Legal representatives can consult with their clients, via Live Link or telephone, in private booths situated in the courthouse. These facilities are available to legal representatives prior to the court hearing (and afterwards) and facilitate consultation during the hearing at the courts discretion.

253. The Department confirmed that provision will be made for an intermediary to provide assistance at a psychiatric hospital when an application is made by a patient who is appearing via a Live Link. The Live Link package contains a series of procedural protections and controls to ensure a fair trial and access to justice for vulnerable defendants. Use of the facilities will be subject to judicial consideration prior to any decision on the use of a Live Link. The patient's Responsible Medical Officer (RMO) will also be available to provide advice on their fitness to participate in proceedings. The Department also indicated that these provisions were developed in conjunction with relevant health authorities.

Live Link direction for vulnerable accused

254. Include Youth advised that the experiences of young people in using video link technology have highlighted issues in relation to limiting full access and participation to the judicial process. In respect of clause 19 (5), Include Youth supports the use of Live Links for accused under the age of 18 and aged over 18 where their ability to participate effectively in the proceedings as a witness giving oral evidence in court is compromised by their level of intellectual ability or social functioning, and where the use of live link would enable more effective participation. Include Youth recommended that this provision be piloted to assess effectiveness.

Part 3 – Policing And Community Safety Partnerships

255. Part 3 of the Bill creates new Policing and Community Safety Partnership (PCSP) structures.

256. It is proposed that there will be one PCSP in each Council area with the exception of Belfast where it is proposed that there will be a principal PCSP and four DPCSPs. clauses 20 to 35 and Schedules 1 and 2 of the Bill detail the Department's proposals for the new structures and how they will operate.

257. Many of the submissions on this part of the Bill were from District Policing Partnerships (DPPs) and Community Safety Partnerships (CSPs) as well as affiliated organisations such as the Northern Ireland Local Government Association (NILGA), Community Safety Managers and from independent members of CSPs. There were also issues raised by organisations in the wider Voluntary and Community sector as well as from the PSNI, the Probation Board and the Policing Board. Given the large number of organisations that responded on the PCSPs an evidence event was held on 16 December 2010 in the Long Gallery of Parliament Buildings. Representatives of 21 organisations attended and gave evidence on the relevant clauses and schedules of the Bill.

General principle of the establishment of PCSPs and DPCSPs

258. The majority of organisations that commented on the proposed partnerships welcomed the amalgamation of the District Policing Partnerships (DPPs) and the Community Safety Partnerships (CSPs) in principle. These respondents pointed out that the integration of DPPs and CSPs would streamline the work and would enable a more joined up approach with better communication and increased cost effectiveness.

259. However some organisations did voice concerns about the proposals. The Superintendents' Association of Northern Ireland believes that the concept of amalgamating DPPs and CSPs to form a body tasked with delivering an effective partnership on policing matters to the community is ill-founded. It is of the view that a partnership body should be specifically set up to deliver effective solutions to policing and community problems and that the PCSPs as proposed in the Bill will not achieve that aim.

260. NIACRO's opinion is that, in the absence of the implementation of the Review of Public Administration, the current Community Safety Partnerships remain the best option to discuss issues of community engagement, planning and safety.

261. Concerns were also expressed that amalgamating the functions of the District Policing Partnerships (DPPs) and the Community Safety Partnerships (CSPs) would allow policing issues to dominate the agenda at the expense of wider community safety issues. NIACRO and Include Youth both felt that the introduction of PCSPs will further cement community safety into the criminal justice system and reinforce, in the eyes of the community, the view that community safety is a policing issue rather than a community and partnership issue. Include Youth also felt that combining policing issues with community engagement poses the very real danger that 'anti-social' behaviour is considered to be the responsibility of the police and not of the community.

262. Some Councils including Belfast City Council and Dungannon and South Tyrone Borough Council indicated that Councils are the third strand and need to be involved as a partner with the Department of Justice and the Policing Board rather than being a stakeholder consultee when it comes to planning how the partnerships will operate and how the structure will link with communities.

263. In response to these concerns the Department of Justice pointed out that the provisions will create new local partnerships in the policing and community field and that the partnerships will integrate all the functions of existing CSPs and DPPs in a single partnership for each district council.

264. In the Department's view the great advantage of a single partnership is that it would have the responsibility for the full range of functions and would ensure a holistic approach to identifying local concerns, prioritising issues, working out how problems can be tackled, agreeing who is to take the lead and who is to support, committing resources and expertise, ensuring the delivery of solutions and evaluating the success or otherwise of specific projects. A fully coherent body of such work, centred on the production and delivery of a unified partnership plan, ought to enable the new partnership to be effective in securing safer communities.

265. NILGA raised concerns over the governance and accountability relationship between the PCSPs and councils, pointing out that, while it welcomes the streamlining of the administrative process through the establishment of the Joint Committee, it felt that the proposed model does not take account of the role of councils in supporting PCSPs.

266. Extern was concerned about how it and other organisations supporting community safety in Northern Ireland will be represented on the partnerships.

267. Some respondents felt that the Department should take this opportunity to remodel this new partnership to develop the current functions and roles of both partnerships to help create a new culture, identity and remit. They considered that the functions of the new PCSPs should be remodelled to avoid silos within the partnership and to embrace a new culture in monitoring policing and enhancing community safety collectively. Others considered that there is an opportunity to reflect on the Patten Report and look at a community planning model in which the wider public safety organisations are brought in.

268. In response, the Department of Justice considers that it is taking the current arrangements closer to an integrated model, particularly one envisaged by Patten, but also by others, in the years since the DPPs and CSPs were established and indicates that this is not necessarily the final word on local partnership working in this field. There will always be opportunities and times when this could change and when there will be further innovation.

Name of the PCSPs and DPCSPs

269. The majority of Community Safety Partnerships (CSPs) and some other organisations expressed the view that the proposed name, "Policing and Community Safety Partnership", should be changed. The issues raised on this matter were voiced by a representative of Strabane CSP during the oral evidence event when he outlined that the title chosen by the Department of Justice was not one of the titles they had consulted on and that the title could give the impression that the police are the dominant partner in the new partnerships. For these reasons the CSPs who responded urged the Justice Committee to re-examine the proposed title.

Recruitment

270. In relation to recruitment to the partnership, most District Policing Partnerships (DPPs), Community Safety Partnerships (CSPs) and Councils hold the view that the costs of the recruitment of independent members by the Policing Board are too high and estimate the costs across Northern Ireland to be at least £600,000.

271. Some Councils suggest that they should be allowed to nominate and appoint independent members which would significantly reduce costs. The majority of the CSPs recommended that the potential cost savings of Councils undertaking the recruitment of the independent members should be examined.

272. The Policing Board stated that it is working to reduce the costs of recruiting independent members but welcomes proposals for councils to recruit independent members.

273. The Department was of the view that it is important that the present role of the Policing Board in appointing independent members be carried over and is aware that discussions have taken place between the Policing Board and Councils.

Expenses and allowances

274. With regard to expenses for members of the partnerships, the majority of Community Safety Partnerships (CSPs) and District Policing Partnerships (DPPs) are of the view that expenses should be set at a central level through the code of practice, as in the case of the DPP, to ensure equality through council areas and among members of the partnership, and to allow councils to recoup the potential costs. The majority of the CSPs, DPPs and Councils also stated that the amount of total expenses should not affect the overall delivery of frontline services and should provide cost savings in comparison to the current models, and recommended that the Justice Committee investigate cost savings of expenses compared to the current arrangements.

275. Coleraine DPP believed that the independent members should receive a nominal allowance to attract the calibre of person for such an appointment and encourage input into the partnership.

276. Newtownabbey, Coleraine and Moyle District DPPs noted that the payment of allowances to members of the Northern Ireland Policing Board by virtue of Schedule 1 paragraph 12 of the Police 2000 Act has not been repealed and that this raises issues of equality between members of the Northern Ireland Policing Board and members of District Policing Partnerships and consequently the PCSPs. Belfast CSP, DPP and City Council feel that the withdrawal of allowances to independent members will result in a reduced uptake and therefore impact on the input of the community sector. Strabane DPP also indicated that consideration should be given to the provision of a members' allowance and that the proposed structures will involve a significantly increased workload from that of current structures, and that activity from dissidents and others would have a detrimental impact on the take-up from the independent sector.

Designation

277. In relation to organisations designated to participate in a PCSP, the majority of CSPs stated that given the multi-agency nature of the partnership and the success of Crime and Disorder Reduction Partnerships (CDRPs) in England and Wales, named agencies should be included in the legislation, as in the Crime and Disorder Act. The majority of the CSPs recommended that the Justice Committee look to name agencies in order to place an obligation on them to reduce crime and disorder.

278. The Probation Board for Northern Ireland (PBNI) indicated that it wished to be specifically named in the Bill as one of the designated organisations. The Probation Board stated that having it identified as a designated organisation within the Bill would bring a consistent level of experience and skills to the offender management role of each PCSP/DPCSP and allow for better coordination across the sector in pursuing the objective of reducing offending/reoffending.

279. Include Youth was also of the view that the categories and sectors of organisations need to be made explicit in this section.

280. A number of DPPs raised issues regarding designation of agencies. Giving the PCSP powers to appoint and revoke will increase the bureaucracy and training requirements for the PCSP. Moyle DPP sought further information on how organisations will be designated and what contribution they will be required to make. Newtownabbey Borough Council considers that such designations should be made by the council, having regard to functions that are delivered through partnership arrangements with other statutory and community bodies, such as those involved in good relations, neighbourhood renewal and Peace III. It considers that this would allow for a more joined-up, corporate approach to achieving the aims of the legislation and associated council objectives, particularly in anticipation of future developments in community planning.

281. While the Department had received a number of representations from the Probation Board and many others stating that they should be included and designated it had avoided designating organisations as small local groups, which might usefully contribute to the area, could be useful on the partnership. The Department accepted there was strength in both positions and, noting there may be a consensus that perhaps three or four organisations should be designated, undertook to consider further. Rather than being prescriptive, the Department thought that it was best to be flexible. It is up to the Partnership to determine who should be designated and they have a statutory duty to follow section 75 in the same way as the partnership.

282. Committee Members questioned the Department on why, as a general principle, if the right type of organisation such as the Probation Board, has been identified, it should not be named as a designated organisation across all Partnerships, in the same way that the Bill specifies 9 or 10 elected members. Committee Members also highlighted that the downside of not naming specific organisations meant that, for whatever reason, a locality could just take the view that they are not relevant and should not be there.

283. The Department's response was that designation was taking the decision out of the hands of the local Partnership, the elected members in the locality, and the independents appointed to that Partnership. Therefore the Department formed the view that, on balance, allowing districts the flexibility to make those decisions seems to be the best way to do it. The Department also reiterated that involvement can be not only through being designated as an organisation, but community and voluntary groups can be involved in the work of the partnership and the Voluntary and Community Sector are mentioned specifically. It may well be that some independent members come with a background in a certain field, and there is the provision that each partnership could set up smaller groups working on specific themes and areas where it is more appropriate to co-opt some of the smaller organisations on to the specific work group in that area or on that themed basis. Therefore, there are still lots of opportunities for community and voluntary organisations to be involved.

Chair and Vice Chair

284. Regarding appointment of a chairperson and vice-chairperson of a PCSP, the majority of CSPs and DPPs noted that Schedule 1 paragraph 10 means that these offices can only be held by elected members or independents respectively, which they consider could devalue the role of the agencies on the PCSP and further limit their perceived role on the partnership. Strabane, Derry and Limavady DPPs and Limavady Borough Council felt that the exclusion of 'designated members' from holding office is contrary to the spirit of partnership working and shared responsibility and negates the inclusive nature of the partnership. Ballymoney CSP shares this view, highlighting research by the Improvement and Development Agency for Local Government (IDeA) in England which found that the most effective chairs of the CDRPs came from the voluntary, statutory and community partners. The majority of the CSPs recommended that the Justice Committee re-examine the chair and vice-chair positions.

285. In contrast Lisburn City Council noted at Schedule 1 (10) that in the first 12 months of the new PCSP the Chair of the Policing Committee will be the Chair of the PCSP but that this will change after the first year. Lisburn Council is of the view that if the chair was not an elected member then democratic accountability would be diminished.

286. The Policing Board also felt that the position of chair should be held by an elected member of the council and that there should be a single chair for the complete organisation. This was based on the rationale that councillors are elected, have a mandate and therefore are accountable. As regards the policing function, the Board felt that it would be a much better arrangement to have a single chair, a single entity, for continuity purposes if nothing else. NILGA also felt that, in respect of democratic accountability and the role of the policing committee, the chairperson should be an elected member.

287. Regarding the current practice in CSPs for holding the positions of chairperson and vice-chairperson, Limavady CSP stated that any member excluding an elected member would hold the chair in the interests of partnership working. Councillors felt that the council was facilitating the CSP therefore they would enable other organisations to hold the post. Craigavon CSP and DPP have the same chair which they regard as allowing both bodies to work cohesively together and they do not see the added value of this legislation.

288. In response, the Department's position is that there is particular value in having the same chairperson and vice-chairperson of a policing committee as the partnership as a whole and that this would maintain the unity of the partnership and ensure the connection between the functions of the policing committee and the functions of the partnership as a whole. As that is the case, it would not be possible for a member of a delivery agency to be the chairperson of a policing committee, and therefore, they would not be the chairperson of the overall partnership.

289. After consideration of this issue the Committee adopted a proposal to amend the Bill to ensure that the chair of the PSCP should always be an elected member and asked the Department to bring forward such an amendment. In response, the Minister of Justice wrote to the Committee indicating that he was not minded to make such an amendment as he "does not believe that the statutory exclusion of independent Members would be acceptable to the public at large — nor to the many current independent members of DPPs in particular". After consideration of the Minister's view the Committee agreed to propose its own amendment to the Bill which would ensure that an elected Member would always be the Chair of the PCSP. The Committee agreed to adopt this amendment.

Quorum

290. With regard to the procedures on quorum, Strabane, Derry and Limavady DPPs pointed out that a quorum is defined in terms of the PCSP and that to ensure representation, consideration should be given to stipulating the ratio between the Policing Committee members and designated members. Strabane District Council recommends that the quorum is broken down and it should stipulate the numbers of independent and political members required to make a quorum. In relation to voting, Strabane, Derry and Limavady DPPs also suggested that Schedule 1, paragraph 13(2) should be reconsidered and suggested that the chairman should seek "consensus of agreement" rather than a vote on every question raised within the PCSP. Votes should be taken only on items of particular significance. Strabane District Council suggests that this should be reworded as follows: "Every question at a public policing committee meeting shall be determined by a majority of votes of the members of present…" The Council agrees that a more formal approach is required when holding policing committee meetings in public but that normal private meetings do not require a majority vote for every question raised.

Finance

291. The vast majority of all the CSPs, District Policing Partnerships (DPPs) and a number of Councils and the Policing Board raised the issue of the financing of the new structures. As funding for NIPB and Community Safety Units comes from the Department, streamlining for funding and accountability should be feasible. Respondents consider that the proposed arrangements are bureaucratic and unnecessary. The removal of the existing 25% contribution from local government may reduce the degree of ownership the Council has to the Partnership and how it is embedded locally.

292. In response, the Department noted that the legislation states that the Department "may" pay a contribution towards councils' expenses in setting up Partnerships. It is not the Department's intention to draw funding from Partnerships.

293. The Policing Board recommends that the Department of Justice fund a single way for the organisation, which should come through the Policing Board. The rationale being that it would save on the confusion that people have articulated. There would be one point of contact and one point of appeal. The Policing Board could build up the trust and the true partnership working that people want to be underpinned by these structures.

294. In response the Department stated it did not know what overall funding will be coming from the Budget just yet and what the ramifications of that are. However, it noted that if the budget is left aside for the time being, the money available through the Policing Board and the Department, through the Community Safety Unit, will go towards the new partnership. The Department will not require the council to contribute and is not stipulating that they must contribute 25%, as the Board has stipulated for the District Policing Partnerships (DPPs). It can be quite administratively burdensome if every invoice has to be split.

295. In relation to the financial structures, the vast majority of CSPs and several councils indicated that Schedule 1, paragraph 17 needs to be amended to reflect that the two bodies 'should' rather than 'may' provide a grant. The majority of the CSPs recommend that the Justice Committee amend paragraph 17 to the above wording.

296. The Department agreed to amend paragraph 17 as suggested in order to ensure that the Department and the Policing Board's commitment to funding the PCSPs is conveyed. The Department subsequently brought forward such an amendment which was accepted by the Committee.

297. The Department, in its proposed amendment to Schedules 1 and 2, paragraph 17 provide further detail on the actual mechanism for funding of PCSPs, in that the intention is to allow provision of a grant in advance of spend, rather than retrospectively. The Committee agreed this amendment.

Complexity of the Belfast Model

298. Belfast City Council is of the view that the proposal to establish one Policing and Community Safety Partnership and four District Police and Community Safety Partnerships in the Belfast area, as well as associated policing committees for each, is complex, will increase the administrative burden already on staff in trying to manage and facilitate all of those structures and could reduce the ability to deliver front line services. Belfast City Council also feels that it would place a burden on elected members and independent members to sit on both the police and community safety committee and the policing committee itself, as well as on other statutory agencies. It is vital that the new structures connect with existing structures because, to make a difference, communities must be involved in identifying the problems and trying to solve them.

299. The Committee questioned what seemed to be a very complicated structure and requested clarification of what consideration had been given as to how the PCSP and DPCSPs will integrate with other existing structures such as the West Belfast Community Safety Forum, PACT; area partnership boards; and neighbourhood structures. The need for clarity regarding how the various organisations would interact was emphasised.

300. Clarity was sought by the PSNI on the definition of 'police district' as the legislation appears to offer two definitions which may create inconsistency with the PSNI definition of a District Command. A number of other respondents also sought assurances that the legislation, guidance and codes of practice enable flexibility in the future if, for example, the Chief Constable were to bring about a change to the number of police districts in Belfast.

301. On the issue of complexity, the Department of Justice noted that the proposed model for Belfast in many ways reflects the fact that, at present, there is a principal DPP and DPP subgroups, yet there is a single CSP. However, the model that has been taken with the District Policing Partnerships (DPPs) also reflects the fact that Belfast is a big city with different issues in different areas. The Department has noted what the council has said and, in the preparation of the codes of practice will continue the engagement that is already on-going. The Department highlighted that creating a single partnership out of the functions of the District Policing Partnerships (DPPs) and the CSPs is one step towards greater clarity. The new single partnership does not clear the field of any possible relationship complexities but does simplify the situation while not wiping out the role that CPLCs and PACT groups have and will continue to have.

302. The Committee regarded that the Department must issue clear guidance and illustrations on how the organisations working in related fields might interact in order to provide clarity.

Balance between policing and community safety functions

303. A number of respondents expressed concern that the functions are too similar to the Police (Northern Ireland) Act 2000; too police oriented; lacking in emphasis on community safety and delivery to the community; neglecting multi-agency working; and implying that the role of the police is to be monitored rather than to work in partnership. One council considered that the functions of the new PCSPs should be remodelled to avoid silos within the partnership and to embrace a new culture in monitoring policing and enhancing community safety collectively. A view was held that monitoring and supporting relationships between policing, community representatives and all agencies that deliver community safety outcomes, whether they be community, voluntary, private or public, must be the agenda, actions, outputs and outcomes of all of those partnerships. The majority of the CSPs wanted the proposed functions re-examined.

304. In response, the Department of Justice states that the point of creating the partnership is to find the best way to deliver those services to the public and to make it easier for the public to get the community safety and policing services that they need. The Department emphasises that the policing committee is a very important part of the partnership and it has a particular role, which is to monitor the police and it is important that it is maintained. However, in creating the partnership it wants both to work together. It is the Department's view that the community, in general, does not make a distinction between police and community safety issues. They simply want a solution to problems. The idea of the partnership is to enable those solutions to be identified, action to be taken and how it has worked to be evaluated.

305. The Department referred to the code of practice that will be established and stated that if clarity is needed about particular approaches and how they will work together, it will aim to provide that.

306. Include Youth believes clause 21 is crucial, in recognising that young people are partners in making communities safer. It welcomes and applauds the notion of genuine and meaningful participation with the public and with communities in general. However, the organisation has concerns that clause 21(1) and particularly (c), (d) and (e) have limitations and suggests the addition of the following words to clause 21(1)(d): "fully considering", after "to make arrangements for obtaining" to make 21(1)(d) read: "to make arrangements for obtaining and fully considering the views of the public about matters concerning the policing of the district and enhancing community safety in the district".

307. Include Youth also raised the issue of anti-social behaviour in clause 21(3). The clause places a level of responsibility on PCSPs and DPCSPs to reduce actual and perceived levels of crime and antisocial behaviour. Include Youth has fundamental difficulties with what it describes as a vague definition of behaviour and asks that the term "antisocial behaviour" be removed from the Justice Bill until there is a definition that is clear.

308. In response, the Department of Justice states that they have used the definition of antisocial behaviour that is in use currently in the Anti-social Behaviour (NI) Order 2004. The Department did not feel it necessary to amend this definition but felt that it could be addressed in other forums, not least through the community safety strategy, which is out for consultation. The Committee were satisfied with this response.

Functions of the Policing Committee

309. Several councils raised issues around the functions of the Policing Committee and state that clause 21 (2) and clause 22 (2) should not be restricted to the policing committee but rather apply to the whole partnership. The ability of a partnership to be formed when there are functions which pertain to only one part of the model i.e. the policing committee was questioned.

310. Belfast City Council indicated that it understands why the separation of the PCSPs and the policing committees is being put forward, however, it believes that there is a risk that a culture of distinctiveness could build up in the new structures. The council therefore called for clear guidance on how the PCSPs and DPCSPs can work in an integrated fashion, have a shared culture and establish clear communication lines with one another.

311. In contrast it is the view of the PSNI that if the functions in sub-paragraphs 1 (d) and (e) of clauses 21 and 22 (which are primarily focused on police accountability) are conducted by the full PCSP or DPCSP, rather than the policing committee, then these functions may prevail at the expense of practical and constructive co-operation on community safety issues.

312. In response, the Department states that it would not be appropriate for officers or officials of other statutory bodies on the main partnership to be responsible for monitoring the work of the Police Commander. It indicates that the predominant view from stakeholders has been that any future partnership arrangements must maintain the special policing accountability arrangements that are in place in Northern Ireland and ensure that the line of accountability for this monitoring directly links back to the Policing Board.

313. The Department indicates that in developing a model for a single partnership it has been required to work within an existing statutory framework established by the Police (NI) Act 2000 and Police (NI) Act 2003. The Policing Board has a statutory duty to assess the level of public satisfaction with the performance of the police. The current DPP framework assists the Board in fulfilling this statutory duty, consequently it is proposed that these functions are fulfilled by the Policing Committee reporting to the Board. The Policing Committee will report on the delivery and outcome of these functions to the Policing Board and the Chair of the Policing Committee will be an Elected Member of the partnership.

Powers of the new structures

314. A number of councils requested clarity around the legal status and powers of the new body and how these powers will fall between the partnership and local councils.

315. Some councils regard clause 21(1)(e) as not clear in its intent. In addition, it is considered that the delivery methodology of the PCSP is unclear. The wording implies that the PCSP will tackle community safety issues primarily through provision of funds to persons to undertake community safety activities. In line with Crime and Disorder Reduction Partnerships operating in England and Wales, it is preferable that the PCSP not only develop actions plan but take the lead in tackling complex community safety issues, supplemented by third sector involvement to ensure that outcomes are achieved. Regarding the amendment proposed by some councils to clause 21 (h), the Department did not consider that the term 'persons' as used in the Bill precludes organisations and therefore is not necessary.

316. Amendments were proposed by a council to clause 21 (g) for clarity, to read "to quantifiably measure the performance of the partnership in terms of reducing crime and enhancing community safety in the district".

317. One council recommends that at clause 21 (4) the relationship between the PCSP and the Council is clarified in this Bill and not the Code of Practice. The funding arrangements should also be clarified in legislation.

318. The Department clarified that the proposed structures mirror the current structure of DPPs as regards the statutory organisation of a body. The structures proposed, will be statutory bodies, but not a body corporate. The partnerships will not be able to enter into contracts themselves, but the council will be able to enter into contracts on their behalf, which is currently the relationship between councils and the DPPs.

Code of practice and accountability

319. BIRW expressed concerns over the level of accountability, stating that the functions of both the Police and Community Safety Partnership and the District Police and Community Safety Partnership legislated for at clause 22(3), 23(3) and clause 34(3) seem to provide some level of enhanced accountability but BIRW is not convinced this goes far enough. For example both bodies are "to provide views to a relevant district commander and to the Policing Board on any matter concerning the policing of the district." The provision of views cannot be considered an effective mechanism of accountability for a police service and BIRW fears the potential for the PSNI to avoid scrutiny, shielded by the weakness of the proposed model.

320. A number of CSPs, DPPs and Councils commented that accountability is with three bodies, namely the Joint Committee, Policing Board and the Council, with potential requests from the Department of Justice and given that the process was to simplify lines of accountability, this legislation may led to conflicting targets and requests. Clarity was also sought on the level of accountability and oversight that will rest with Councils if it was considered that a PCSP was underperforming. The majority of the CSPs that responded believed that the lines of accountability needed to be re-examined with the aim of simplifying them.

321. The majority of the CSPs that responded also noted that many of the proposed provisions refer to practices which are currently taking place within the DPP model under the Police Act. They therefore proposed that robust evaluations of these practices are carried out in order to establish whether there is merit in including them within this current piece of legislation. In addition they expressed the view that this clause provides clear insight into the role of the policing committee, however little is mentioned in relation to the practices which the overall partnership will have to adhere to. The view was expressed that many of the codes of practice are very traditional, and the legislation provides a key opportunity to look at alternative and more innovative ways of community engagement. A cost-saving analysis should also be carried out.

322. The Policing Board welcomed the legislation and pointed out that the District Policing Partnerships (DPPs) have been subject to periodic review by the Policing Board. A very comprehensive review was undertaken a short time after the DPPs were formed and as a result of the review, a number of changes to the code of practice were implemented. The Policing Board also carries out a consultative exercise annually and assesses annually the effectiveness of the DPP functions against that.

323. The Committee during the oral evidence session also questioned, whether the Department had evaluated current practice and how it would ensure imperfections would not be carried forward in this legislation.

324. In response, the Department of Justice indicated that it is required, with the Policing Board, acting together in a joint committee, to issue a code of practice for the PCSPs and DPCSPs. The code will be developed afresh and will be informed by the experience of DPPs and CSPs to date. Crucially it will inform the new partnership about the exercise of its functions and ensure a degree of consistency.

325. The Department states that it was aware of inadequacies in the current procedures that have developed through time. They have served a purpose, but there are some aspects that merit change. It has had some preliminary discussion with the Policing Board, Councils and others on the effectiveness of current procedures and will continue those discussions when drawing up guidance on the code of practice.

Reporting mechanism

326. In relation to clause 24 (5) a number of CSPs, DPPs and Councils felt that the practice of providing an annual report to the policing committee in order to consult with the district commander seems inappropriate, given that, it would be assumed, the area commander will be a member of the overall partnership. Therefore it would be more appropriate, in line with policing structures, for the police representative to carry out this consultation with said commander. Several respondents also related this issue to clauses 27 and 30. The majority of the CSPs recommended that clause 24 (5) be removed. The Department indicated that this provision forms part of the current arrangements for DPPs and therefore the Department is reluctant to remove this provision.

327. The Department of Justice noted that clauses 24 to 32 detail the statutory reporting requirements and mechanisms which must be operated by PCSPs and DPCSPs and advised that there is a desire to simplify and create a single line of accountability. The Department states that the reporting mechanisms set out in the clauses reflect the fact that there are three different authorities with an interest in the work of the partnership. The Department wants to preserve the responsibility of all three authorities. It does not mean that there would be three separate reports of a different nature going to three separate authorities, but rather that a report needs to be provided to the Department, the Policing Board and the council, all of which have an interest in the success of the partnership and what it is achieving.

328. The Department has indicated its intention to work with the Policing Board to consider how the framework could be supported by less onerous requirements. The Department indicated that the reporting mechanisms captured within clauses 24 to 32 do essentially mirror the existing reporting provisions for DPPs. It also acknowledged that a familiar comment from stakeholders was that the current reporting mechanisms in place for District Policing Partnerships (DPPs) were overly complicated and labour intensive.

Consultation

329. Extern states that it was not clear what clause 33 means or what it will look like when it is implemented. Extern is concerned that clause 33 suggests that consultation could be approved by the Policing Board but not approved by the PCSP. This would create governance and coherence issues and, potentially, conflict and sought assurance that that is not what it means.

330. Coleraine CSP believes that the consultation requirements should include more than policing and should encompass all aspects of community safety, which would reflect the spirit of the single partnership and avoid consultation duplication. Additionally, the establishment of bodies could duplicate various roles in the council, including community development.

331. Strabane District Council sought assurance that the policing committee is not required to undertake consultations which involve operational policing matters and to this end recommends that clause 33(1) be amended to include "on any matter affecting the community policing of the district" to ensure that the roles of the PCSP locally are safeguarded, the council recommends that clause 33(3) be amended to include "to consult in relation to community policing matters".

332. In response, the Department of Justice stated that there appears to have been a misunderstanding about what clause 33 says, explaining that its focus is on facilitating the police to consult the public. There would be a lot of consultation with the public, the policing committee and the overall partnership so, wanted to avoid consultation fatigue the Department saw that as being as minimal as possible. In particular, clause 33(2) relates to where it appears, to the Board's mind, that the partnership has not made sufficient arrangements for the police to consult a local community. Clause 33 reflects a provision that is currently relevant to the DPPs.

Statutory Duty to consider community safety implications

333. The Policing Board, the vast majority of CSPs and a majority of DPPs and NILGA fully support clause 34 and view this provision as key to developing policy for the new partnerships and providing the opportunity for placing policing and community safety at the centre of local service delivery enabling more effective working together and outcomes for local communities. The Policing Board also supports views expressed that the clause should go further and mirror some of the legislation in England and Wales, particularly the Crime and Disorder Act.

334. The PSNI also considers it important and wholly appropriate that other public bodies are required to exercise a duty to consider community safety implications in exercising their duties. For some time it has appeared to the Police that monitoring and accountability mechanisms are disproportionately skewed towards the PSNI and away from other delivery partners.

335. Include Youth indicated its support pointing out that any consequences of having the statutory duty are fully justified and recommending that the core bodies should be named and consideration should be given to how the legislation will be enforced.

336. NILGA states that the inclusion of this clause provides an opportunity to build broad-based responsibilities for community safety and contribute to the delivery of a shared community safety agenda. The duty should ensure that community safety issues are made central to all policy development by government and public authorities and are not limited to these public bodies directly involved in the PCSPs. NILGA believes that this clause has the potential to make a real difference to the lives of the people of NI by providing a framework to design public services around the needs of individuals.

337. Strabane, Derry and Limavady District Policing Partnerships (DPPs) point out that there are significant resource implications for all public bodies to have "due regard to the likely effect of the exercise of those functions on crime and anti-social behaviour in that community, and the need to do all that it reasonably can to enhance community safety." This brings with it a requirement to "community safety proof" all policies and procedures. It is suggested that the PCSP should be consulted within this suggested policy development process, so that the effectiveness of this structure is not diluted by mainstreaming. This policy aspect would be more effective if initiated in the context of community planning. Strabane and Lisburn Councils also noted that this is a significant clause which will have resource implications for all public bodies.

338. Some Departments have concerns about the implications and requirements that might arise for them and related organisations and the Executive has indicated that it will revisit this clause following the Committee's consideration of it. The Committee too voiced concerns about the impact of clause 34 and discussed the issue with the Attorney General who expressed significant reservations and the potential for the clause to create vast expense in relation to legal challenges to public bodies. The Attorney General also noted that the language used in the clause, for example the reference to 'perceived', was ambiguous and considered that the clause is likely to give rise to a great deal of problems without necessarily generating positive outcomes in improving policy making by public bodies. The Attorney General suggested that if clause 34 was to be included in the Bill, it should be ensured that the duty can be made justiciable only by for example the Minister or the Minister and/or the Attorney General, comparable to the Contempt of Court Act.

339. The Department noted that there appeared to be a lot of support for the clause during the oral evidence session which was welcome as the Department regards it as an important part of the Bill that adds a lot of benefit to the partnerships. The Department believes that this provision will be an extremely useful tool for the future partnerships. A provision of this sort was a desire of the majority of stakeholders, notably the PSNI and the Policing Board who had hoped the provision might be further reaching.

340. The Department acknowledged that concerns do however exist within some of the Departments regarding this provision. In summary these related to the perceived wide scope of the clause and the corresponding potential for legal challenges, the potential costs both in relation to any legal challenge and in implementing the requirement within Departments and Arms length Bodies and the associated administrative burden. The Department is committed to working closely with the Executive and the Justice Committee to secure inclusion of the clause.

341. The Department indicated that the intent is not to create a bureaucratic construct in which people have to fill in lots of forms to demonstrate how they are complying. However, if the duty is there, organisations will have to demonstrate that they have complied with it. Departments and the other bodies listed will have that obligation.

342. The Department also clarified that the bodies to which clause 34 will apply are listed (in Schedule 2 to the Commissioner for Complaints (NI) Order 1996) which is very extensive and stated that it is difficult to anticipate any Body that is not included in that Schedule. The Department stated that it anticipated that, for an organisation that takes into account issues such as community safety and its policies, that could have beneficial consequences and returns, such as saving money in the long run. One practical example would be the Housing Executive taking into account such policies when designing estates, buildings or facilities. The reduction in crime and antisocial behaviour would pay for any additional features that it may have to design.

343. The Department emphasised that it is committed to and has a statutory obligation to consult with all NI Departments to produce statutory guidance on the operation of clause 34 and will not commence the provision until the Executive is content. The current position is that there is agreement in principle from the Departments on the intention of the clause but concerns regarding the implementation of it.

344. The Department explained that in crafting this requirement it looked at legislation in England, Wales, Scotland and the Republic of Ireland and those countries have not had significant legal challenges. While not suggesting that that means that there will not be any challenges here, it has not been their experience. Alert to that possibility, in drawing up the guidance, the Department wants to work with other Executive Departments and their advisers to see how that could be minimised and feels that it is still a worthwhile feature.

345. The Committee raised the issue of community impact assessments and whether this clause would be a suitable mechanism to introduce such assessments given it could be assumed that CSPs would have significant input into community impact assessments.

346. In response, the Department confirmed that significant work has been undertaken on plans for community impact assessments as recommended in the Criminal Justice Inspection report but that in order to undertake widespread consultation and develop workable proposals, inclusion in this Bill would be premature. The Department advised that it plans to bring forward proposals on community impact assessments in June 2011 and confirmed that this is a Ministerial priority. The Committee welcomed this commitment.

347. With regard to naming the appropriate public bodies the Department indicated that the Crime and Disorder Act 1998 is specific about the kinds of organisation which, it is assumed, will naturally have a contribution to make to community safety in a locality. The difference between what has been done in England and Wales and what is proposed here is that the Department has endeavoured to capture all public authorities so as not to limit the duty placed on public authorities. It may well be that there are all sorts of public authorities who can usefully make a contribution to community safety in one district in particular circumstances, and this applies the duty to that authority at the outset.

Functions of Joint Committee and Policing Board

348. Within the proposed structure BIRW notes the establishment of a joint committee of representatives from the Policing Board and the Department of Justice which will assist the Department and the Policing Board to work more closely together in setting high level strategic objectives providing coherent, cohesive strategic direction to the Partnership. As long as this joint committee is a mechanism to hold the PSNI to account, and the rationale of the community policing policy is the achievement of greater police accountability and confidence in policing in Northern Ireland, then this is a welcome move.

349. The Policing Board supports the establishment in legislation of a Joint Committee as a model for operating joint governance arrangements between the Department of Justice and the Board. Its support is on the understanding that the establishment of a Joint Committee will not affect the statutory duties that the Board currently has. The Policing Board also welcomes the recognition of the importance of maintaining the accountability of policing arrangements in the proposed model.

350. Belfast City Council welcomes the setting up of a joint committee and any attempt to ensure that there is joint working between the Department of Justice and the Policing Board around the new partnership arrangements. However, what is specified in clause 35 refers solely to the monitoring roles and separates the monitoring roles of the joint committee and the Policing Board. If it is necessary to separate them in that way, it is fundamental that the wider role of the joint committee is defined in the legislation.

351. For example, the legislation should set strategic direction for the partnerships and how they operate, streamline how they operate and ensure that there is no duplication. Furthermore, we should look jointly at the funding arrangements for the partnerships and take on board the views of the partnership structures and make decisions on those where there is a need for change. There is a need for clarity on the role of the joint committee and the role of councils, particularly if it is the role of the joint committee to set strategic direction. There should be input from councils to enable them to have a say in the strategic direction of the partnerships.

352. Belfast CSP, DPP and City Council, are concerned that the proposed model will not, in practice, lead to a more streamlined process of reporting or accountability. Strabane, Derry and Limavady District Policing Partnerships (DPPs) state that the legislation provides for the Joint Committee to assess public satisfaction and effectiveness of the overall PCSP; while the Policing Board will assess the public satisfaction and effectiveness of the Policing Committee. This duplication of roles will lead to confusion for all stakeholders and streamlining should be considered. Strabane District Council suggests in relation to clause 35(1) (b) that the tripartite reporting structure is rather bureaucratic and that this prioritisation of functions of the PCSP shall create an unhelpful degree of hierarchy within the partnership.

353. Strabane Council also notes that clause 35(2) outlines that the NIPB shall assess public satisfaction with the policing committee and assess their effectiveness and queries what powers the NIPB would have if the Policing Committee was proven to be lacking in public satisfaction or in effectiveness and how would this be related into the joint committee. Clarity at the outset would be welcome in order to ensure that this power has sanctions and that Councils can comment fully on its implications.

354. Craigavon CSP highlights the need for a robust, independent assessment of the levels of public satisfaction to get a clear picture of the performance of both the policing committee and the PCSPs.

355. A number of Community Safety Partnerships (CSPs), District Policing Partnerships (DPPs) and Councils commented that accountability is with three bodies, namely the Joint Committee, Policing Board and the Council, with potential requests from the Department of Justice and that this is a concern given that the process was to simplify lines of accountability and this legislation may led to conflicting targets and requests.

356. During the oral evidence session Larne Borough Council raised concern about the accountability of the four bodies — the joint committee, the council, the Northern Ireland Policing Board and the Department of Justice — in the new proposed PCSP model given that the process was to simplify the lines of accountability, not to add more bureaucracy. Again the view was expressed that the legislation may lead to conflicting targets and requests in the future and lines of accountability needed to be simplified.

357. Regarding indemnities and insurance, Strabane, Derry and Limavady DPPs and Strabane District Council seek clarification on the relationship between the council and PCSP in particular in relation to funding allocations. It would be difficult for a council to justify indemnifying persons or organisations such as the PCSP over which it has no control or responsibility. In the absence of clarity, Strabane District Council is opposed to Schedules 1 and 2, paragraph 15, 16 (1) – (4).

358. In response, the Department highlighted that the provisions within the Bill in relation to indemnities and insurance are carried over from existing provisions for DPPs.

Sub-committees

359. Antrim CSP, DPP and Borough Council felt that, in the absence of information in the Bill on the relationship between the main PCSP and the policing committee, there is a danger that if two different subgroups were set up, communities would not get the best level of service. They consider that there is confusion on lines of accountability and a lack of information on agreed priorities between the Department of Justice and the Policing Board, and that having two separate sets of potentially conflicting objectives could result in perverse outcomes for communities. Antrim CSP, DPP and Borough Council proposed that establishing geographically-based or issue-based groups should be within the remit of the overall body of the PCSP so that a joined-up approach to problem solving at a local level is taken, which will deliver the best for local communities.

360. In response, the Department confirmed that Schedule 1, paragraph 14 addresses these concerns and highlights that the PCSP may constitute other committees, smaller groups, subgroups and offshoots from the partnership.

361. Ballymoney CSP sought assurances that given that the policing committee would be responsible for inviting other organisations to sit on the policing and community safety partnership that there would be equality of representation in the overall partnership.

362. Regarding the role of the policing committee vis-à-vis the partnership as a whole, the Department advised that the legislation refers to the appointment of subcommittees by the policing committee, which may or may not be something that they would want to do.

363. The Department highlighted that those subcommittees would be purely responsible for the restricted functions that the policing committee would look at, and not the roles of the whole partnership. Again, it is connected to the issue of the policing committee sitting within the partnership and what the point or role of that is.

364. The Department again emphasised that the policing committee would not be working in isolation. The whole partnership encompasses the policing committee, and any subcommittee that the policing committee would set up would, by its very nature, be encompassed within the whole partnership which is why the policing committees should do it.

365. The Department indicated that the provisions allow each PCSP (and DPCSP) to set up other committees to look at specific issues and neighbourhoods and deliver specific projects. These would be made up of five or more members of the Partnership and would in addition be able to co-opt people who are not members of the other committee or the PCSP. There would be no maximum size. The ability to set up these committees provides PCSPs and DPCPS with the flexibility to bring on board additional delivery partners as and when required.

Part 4 - Sport

366. This part of the Bill creates new offences to promote good behaviour by fans of association football, Gaelic games and rugby. The offences are unauthorised pitch incursion; offensive chanting; missile throwing; the possession of alcohol, bottles, flares or fireworks and being drunk at regular matches; and the possession of alcohol on hired buses en route to and from regulated matches. It also introduces football banning orders and bans ticket touting for the purpose of helping to prevent violence and disorder at football matches. A court will be able to make a banning order prohibiting a person from attending certain football matches for a set period. It will be a criminal offence to fail to comply with a football banning order.

367. Chapter 1 and Schedule 3 set out the definitions for regulated matches and the period of a regular match. Chapter 2 deals with the new offences, Chapter 3 deals with alcohol on vehicles travelling to a regulated match, Chapter 4 creates the offence of ticket touting and Chapter 5 deals with banning orders.

368. Given that sport falls within the remit of the Committee for Culture, Arts and Leisure, the Committee for Justice specifically sought the views and comments of that Committee on this part of the Bill.

369. There was broad support among respondents for the intention of the sports provisions and it was recognised that the aim of the Bill is to improve safety arrangements at sports grounds to promote a spectator friendly environment. This aim was welcomed by Sport NI, the major sporting organisations and Belfast City Council. However, there were a large number of issues raised in relation to specific clauses. They included general comments on the provisions; equality issues; legislation versus self regulation; regulated matches; definition of missiles; chanting; pitch incursions; laser pens; drunkenness at matches; drink containers; alcohol at matches; application of legislation that applies in England and Wales; alcohol on vehicles; ticket touts; banning orders; enforcement; and a requirement to include a definition of Ulster GAA.

General provisions of the clauses relating to sport

370. Ulster GAA broadly supports the spirit of the proposed legislation to deal with disorder associated with travelling to and from, attending and behaviour at sporting events. However, it raised a number of overarching issues – clarification must be provided on which measures apply to GAA events, the commencement orders for introduction should not be relied on solely to create exemptions, it should be confirmed that venue operators are in overall control of their events and the Safety of Sports Grounds legislation does not currently demand the presence of PSNI officers at all fixtures and the legislation should take account of the similar measures which were applied to British sport, in particular football and rugby fixtures played at the same venue but with differing arrangements applying.

371. The Irish Football Association (IFA) fully supported the proposals, viewing them as essential elements of enforcement and helpful in creating a safer environment for football supporters. The Association did however have issues in relation to banning orders and around the time period for the possession of alcohol in any area of the ground from where the match may be directly viewed.

372. The Amalgamation of Official Northern Ireland Supporters Clubs (AONISC) broadly welcomes the proposal to introduce specific legislation on spectator controls to NI. It believes that it is important that the legislation is in line with the rest of the UK and it could act as an effective deterrent and encourage people to behave in a responsible fashion. However the AONISC has concerns with fundamental aspects of the proposals, in particular that elements are unnecessary, superfluous and could have severe ramifications for the future of football social clubs and viewing lounges.

373. Ulster Rugby has no particular objections to the clauses that deal with missile throwing and chanting, but has serious objections to the inclusion of Ravenhill in clause 43. The Ulster Rugby Supporters Club (URSC) was of the same view in relation to clause 43.

374. The Department highlighted that it had very much taken its lead on this part of the Bill from the Northern Ireland Assembly debate on 11 September 2007 in which the Assembly, in response to a Private Members' Motion, called on the responsible department to introduce legislation to address racism, sectarianism and violence at sports events, having widened the original motion beyond football alone. Allied to this is the desire of the Department of Culture, Arts and Leisure to improve spectator control and crowd safety across the three main spectator sports in Northern Ireland. The package provides essential criminal law measures to complement the Safety of Sports Grounds (Northern Ireland) Order 2006 which principally affects Association Football, Gaelic Games and Rugby Union. The sports law proposals are therefore a package that helps sports authorities make improvements in safety terms and in response to an identified need at a strategic level.

375. The Department acknowledged that local sports bodies have already made great strides in improving their sporting events and atmosphere, but indicated that other jurisdictions have used crowd safety and sports law packages to great effect, increasing individual and family attendances. The sports law package is designed to support all of the work already undertaken and to help sport move even further forward.

Equality issues

376. Some respondents consider that the proposals within the legislation are discriminatory, in that Chapters 4 and 5, which cover ticket touts and banning orders in relation to regulated matches are focussed on football and given that the Minister of Justice has indicated that the other sports will be dealt with differently to football in relation to clause 43.

377. AONISC is also concerned that the emphasis of the proposals are directed towards football and asserts that many of the offences outlined are not exclusive to football and may also be relevant to Rugby and GAA. It points out that according to a DCAL 2004 survey 85% of fans attending Northern Ireland international matches and 78% of fans attending Irish League matches were male and protestant. It is essential to ensure that this section of the community is not unfairly discriminated against by this legislation.

378. The Department disagreed with the analysis that, by having a number of provisions apply solely to football, they were unfairly targeted at Protestant working class males.

379. The Department also disagreed that the Bill is anti-football or even anti-sport. As is the case with the offences and penalties aspects of the Bill as a whole, the powers are directed at those who break the law whatever their background. The Bill is designed to deliver improved community safety and public protection to everyone in Northern Ireland irrespective of their background. It will be the people who offend – and who choose to so offend – that will be affected by these powers, not because they are one religion or class or another.

Legislation versus self regulation

380. The Public Prosecution Service (PPS) indicated that while the policy intent behind the provisions relating to content is clear, there may be difficulty in certain circumstances in satisfying the test for prosecution or in proving the commission of an offence to the requisite criminal standard, namely beyond reasonable doubt. The PPS stated that confidence in the administration of justice is liable to be undermined where difficulties of proof lead to under-usage of the offence or a disproportionate number of acquittals.

381. During the oral evidence sessions, the Committee questioned whether the sports provisions within the Bill may represent legislation for legislation's sake. Issues discussed with the witnesses and the Department included whether there was already legislation in place to deal with the situations; the fact the Bill was creating criminal offences to deal with safety issues; and the reliance on stewards and volunteers for evidence and whether the offences would be enforceable. The question was also asked as to whether legislation was being used to deal with a minority who are causing harm to the majority and could an alternative to legislation and the creation of more criminal offences be more education, information and self-regulation.

382. The Committee explored the alternative of placing more emphasis on self regulation and strengthening the sports individual codes of conduct.

383. The PSNI confirmed that the vast majority of sporting events and fans do not pose any problems. The PSNI's ideal preference was self-regulation. Many clubs deal effectively with the issues daily at a law level within the management of the sports events and the PSNI stated self-regulation of such management has improved markedly and measurably over the past 10 years. The PSNI however highlighted that the effect of any legislation is not just to enforce but to deter and they welcomed the proposals, which would be useful in the small number of occasions when needed. They said the powers would be used discretely, sensibly and proportionately and in their view dealt with some gaps in the current law. They indicated that just because the powers are enacted on the statute book did not mean they would be used. When pressed by the Committee on the necessity of the provisions they did acknowledge that no police officer would turn down additional powers.

384. The Department stated that the sport clauses are about sending a positive message that our sports grounds are places where people can be safe, bring their families and be able to have fun, and be assured of basic standards of decent behaviour. The provisions sit alongside what the sports themselves are doing to make sport more family friendly and encourage people to come out and support their local clubs.

385. It is the Department's view that there are limits to the existing law which this section of the Bill is trying to address. One example is the current law on alcohol on vehicles, which is about the consumption of alcohol. This new provision however is saying that alcohol should not be brought on to vehicles at all. The new provision regarding throwing missiles will also strengthen current law on such offences.

386. The Department indicated that it was of the view that the three sports concerned were generally content with most of the proposals provided there were certain adaptations to suit their circumstances and that certain aspects do not apply. The Committee clarified that the IFA had asked for legislation but neither the GAA nor Ulster Rugby had actively done so.

Regulated matches

387. Three issues were raised with regard to regulated matches.

388. Concerns were raised by several respondents that the time period to be applied in relation to regulated matches of two hours before and ending one hour afterwards is too long. Cllr Ken Robinson MLA highlighted that the majority of spectators arrive in the period beginning 30 minutes before kick-off for major games with the majority leaving immediately after the final whistle, reducing the need for a one hour time period afterwards. The IFA also viewed the proposed time period as lengthy.

389. The second issue relates to what is a designated match.

390. NIHRC states that the principle of proportionality must be considered. As long as there is an evidence base justifying the application of the special measure to particular types of events the European Court of Human Rights principles of proportionately and non-discrimination should be satisfied.

391. Ulster GAA believes that the requirements about how a game becomes regulated need to be examined and that paragraph 6(b) of Schedule 3 takes the scope of the legislation too far. Ulster GAA points out that the safety of sports ground legislation identifies two types of designation. First, grounds are designated, which normally applies to the main county grounds that it uses, the grounds used by the two top leagues in Irish Football Association competitions, the ground used by Derry City and that used by the Ulster Branch of the IRFU. Secondly, stands can be designated which includes those in grounds that are used almost entirely by clubs. The scope of paragraph 6(b) would bring designated stands within legislation even though the games being played there would not be part of any planning by the Ulster GAA or by the safety advisory groups that would be set up under the safety of sports grounds legislation. Ulster GAA believes that the inclusion of paragraph 6(b) in the definition of regulated games poses a serious problem, is superfluous and impossible to enforce.

392. Sport NI also states that some matches played at the venues covered by the sports provisions can often host junior/youth or other matches with low or minimal attendances. It may not therefore always be appropriate to apply the legislative provisions as proposed for such fixtures.

393. The third issue was raised by the PPS in relation to the provisions of Schedule 3 which appear to extend jurisdiction for prosecution of offences committed at certain gaelic games and rugby taking place extraterritorially i.e anywhere outside Northern Ireland. If this is the intended impact of the provisions the PPS recommends that it be expressly stated in the body of legislation that certain offences are extraterritorial.

394. The PPS indicated that investigation and prosecution of offences committed outside the United Kingdom, whether during cross-border or international sporting occasions, may give rise to difficulty, particularly in gathering the necessary evidential proofs.

395. In response the Department highlighted that clause 36 sets the framework for the sports and matches across which the new provisions would operate. Clause 36 and Schedule 3, which have to be read together, define the concept of regulated matches and outline which powers will apply to which matches. For football, regulated matches are generally defined in terms of teams playing in certain competitions; whereas for Gaelic Games and Ulster Rugby, the definitions are based on sports grounds.

396. During oral evidence the Department indicated that consideration could be given to substitute other periods of time. The Department also undertook to give further consideration to the concerns about the designation not just of grounds but of stands and how broadly that would apply to matches.

Definition of missiles

397. While the provision for the throwing of missiles was generally welcomed, particularly by Sport NI who considered it to be an essential component relating to safety at sports grounds, some respondents wished to see a clearer definition of "missile".

398. The CAL Committee supported the clause subject to the definition of the word 'missile' and also expected that sufficient court discretion would be exercised in determining fines in a proportionate manner which would differentiate, for example, between someone throwing a coin with malicious intent and someone throwing a snowball.

399. Justice Committee Members also questioned the use of the wording "to throw anything" and whether existing legislation already covers offences of throwing missiles onto a pitch.

400. The Department clarified that it is illegal to throw something onto the pitch if it constitutes an assault or an attempted assault, but, in order to show that, it has to be shown that there was an intention to hit someone and cause injury. Simply randomly throwing something that lands on the pitch is not illegal. The message that the Department is trying to get across with this provision is that, when people are in a sports stadium, they should not throw anything.

Chanting

401. While there was widespread support for the intentions of the legislation with regard to chanting, several respondents sought clarity on the term 'indecent' and a question was raised regarding political opinion not being included.

402. The inclusion of the word "sectarian" had been raised by the Committee during pre-legislative discussions with the Department and the CAL Committee also recommended this.

403. The NIHRC states that any restriction criminalising particular speech or expression requires justification under Article 10(2) of the ECHR which sets out permitted limitations on freedom of speech. This allows restrictions and penalties only when they are clearly prescribed by law (legal certainty) and are 'necessary in a democratic society' for one of a number of legitimate aims, including protecting the reputation or rights of others. In order for a restriction to be deemed 'necessary in a democratic society' the state must demonstrate that there is pressing social need for the measure and that the restriction is proportionate to addressing that need. The Commission advises that the inclusion of a measure to sanction chanting containing sectarian and other discriminatory expression on interrelated grounds is consistent with human rights standards.

404. The Commission does not regard defining sectarianism in Northern Ireland as a complex matter and draws attention to the well developed body of international standards from which definition can be drawn.

405. The Committee also discussed whether there was a need for the clause as offensive chanting is already an offence if it incites hatred or causes offence.

406. In response, the Department highlights that clause 38 makes it an offence to engage in indecent, threatening, abusive or insulting chanting and considers that chanting that is sectarian is already covered – by reference to race, nationality, religion and the other Section 75 categories. It is also aware that to date there has been no definition in law of "sectarian" and there had been concerns about how successfully it could be defined in law – other than by use of the Section 75 list. However, given the views expressed by the Committee, the Department undertook to look again at this clause, with a view to including "sectarian".

407. With regard to the term "indecent" the Department believes that interpretation is best left to match officials, police and ultimately the courts. The Department did not wish the chanting offence to limit a person's fun at sporting events. Friendly "banter" could continue - however if it were to stray into the offensive arena it will certainly be caught by the offence. Again it will be for match organisers to step in or ultimately for the police and courts to act.

408. The Department acknowledged that offensive chanting is already an offence if it incites hatred, however showing that it does is sometimes difficult. The purpose of this new provision is to promote a standard of behaviour.

Pitch incursions

409. While Sport NI and the IFA fully support the provisions relating to going onto the playing area, some respondents were concerned that the provisions would create an offence where pitch incursions occur on celebratory occasions and are often a long standing tradition. Several respondents highlighted that existing sports ground regulations already cover pitch incursions.

410. The CAL Committee recommends the inclusion of the phrase "controlled celebratory occasions" as pitch invasions are acceptable in some sports. The CAL Committee was concerned that the phrase "which shall be for that person to prove" places too much onus on the individual and recommends that this phrase is removed from the clause.

411. Both Ulster GAA and the CAL Committee recommends that the phrase "lawful excuse" is clarified and in particular questions if this covers emergency evacuation procedures.

412. The Department states that the offence provided for in clause 39 is needed primarily for safety reasons. With most perimeter fences to be taken down under new DCAL ground safety rules allowing safe, emergency spill-off from terraces, new risks are presented. Pitch incursion – even for good-humoured reasons – can cause problems that all three sports recognise. It can mask some who might have less humorous intent and referees and players need protecting too. It can also damage pitches, affect commercial contracts and lead to injuries and civil claims. More seriously, it can also provoke trouble between rival fans.

413. The Department emphasised that the provision will only apply to unauthorised pitch incursions, and the situations when pitch incursion is authorised will be for match organisers to make clear as part of their ground rules.

Laser Pens

414. Several respondents, including the CAL Committee, recommended that laser pens are included among those prohibited items under clause 40.

415. In response the Department highlighted that existing legislation already covers anyone with illegally made/sold laser pens to ensure that they are in breach of the law.

416. During the oral evidence session the Department stated that laser pens that are legal may be a nuisance, but do not cause injury. Illegally made or sold pens are the problem, and it is already an offence to possess illegally made pens. In its view match organisers could ban fans from bringing any sort of laser pen into a match under the terms and conditions of buying a ticket and they could eject fans who do so. So far individual sports have not flagged up this issue as a major problem. The Department indicated it was willing to keep the matter under review.

Drunkenness at matches

417. The requirement for legislation in this area was questioned as each of the sporting organisations confirmed that procedures were already in place to refuse entry or remove persons from their respective grounds if they behaved in a drunken and/or disorderly way and there are existing laws already.

418. Views were also expressed by some respondents that the definition of "drunk" needed to be more explicit and questions were raised by the Committee regarding how the application of this provision would work in practice.

419. The PPS states there may be difficulty in certain circumstances in satisfying the test for prosecution or in proving the commission of an offence to the requisite criminal standard, namely beyond reasonable doubt. The proposed offence in clause 41 of being drunk at a regulated match does not include a definition of drunkenness for the purposes of the offence. Accordingly, an assessment of a defendant's condition is likely to be open to challenge on a number of grounds, including that such assessment is subjective and wrong, and that the alleged symptoms observed are attributable to other explanations such as tiredness, medication and/or drugs.

420. The Department indicated that the same sort of tests will be used as those that are used for ordinary drunkenness offences. The offence of "being drunk in a public place" was put into legislation in 1980. For this offence whether a person is drunk is for the police, and ultimately, if a case were prosecuted, the courts, to decide – "drunk" is not defined in that legislation. The Department is of the view that it is best to remain consistent with this approach and with other legislation. Defining "drunk" might only limit its meaning with undesirable effect. The Court would draw on the evidence of people who were nearby, stewards and the police, if they were there. The legislation supports existing procedures and codes of conduct.

Possession of Drink containers

421. This provision raised concerns in relation to its necessity and its enforceability, and both the Committee for Justice and the CAL Committee queried the need for this provision.

422. Sport NI is aware that bottles have been used as missiles and weapons at some soccer matches in Northern Ireland in recent years and considers that guidance is required to clarify the term "article capable of causing injury" and whether it refers to plastic bottles with / without the cap removed and plastic receptacles such as cartons.

423. Several respondents stated that this provision needs to be more explicit to allow for the taking into grounds of reusable containers which may contain a substance that cannot necessarily be bought within the ground, such as a child's drink cup or baby's bottle. Inflexibility within legislation could result in needless prosecution, or difficulty in obtaining entry for families.

424. Ulster GAA believes this issue is best addressed under the general application of the safety certificate provided by the local authority and within the responsibility of the event controller in the organising of the games and under its ground regulations.

425. In response the Department highlighted that the offence is focused on drink containers which could cause injury that are routinely either discarded when empty or normally returned to the supplier. Drink cans or bottles are what is intended. The Department is aware that in many instances, for safety reasons, sports clubs already remove drinks containers from spectators entering the ground. Clause 42 is designed to provide the authority of the criminal law as an important supporting power. Spectators could then be told that it is in fact a criminal offence to bring such containers in.

426. The Department considers the level of detail used to describe a "drink container" as essential for the practical working of the provisions. It is important that it clearly defines which items people will or will not be allowed to bring to sporting events.

Alcohol at matches

427. This provision also raised concerns about the need for it and again the question of whether the issues it pertained to could be better achieved through regulation by the Sports Governing bodies arose.

428. The AONISC contends that clause 41, "Being drunk at a regulated match", is more than sufficient to deal with any drunkenness at matches and believes that the Bill has the potential to criminalise a person for having a single drink — a person who is not drunk — which is excessive, given that there will be powers to deal with persons should they become drunk.

429. Sport NI considers that care should be exercised in the implementation of this provision and it should be applied on the basis of associated risk to spectators who attend fixtures and the reputation of that sport.

430. It was noted that the Minister of Justice has already indicated he is minded to implement the legislation at different levels across the three main sports. This approach was supported by Sport NI who regarding that provisions relating to the possession and sale of alcohol should be applied on the basis of associated risk to spectators who attend fixtures.

431. Sport NI considers it appropriate for this provision to be implemented at 'designated' venues where soccer is played given persons in possession of alcohol at some football matches have behaved in a disorderly and alcohol related anti social manner in recent years. However, it would not be appropriate to implement this provision in relation to the 'designated' venue where rugby or Gaelic sports are played unless there were to be deterioration in alcohol related spectator behaviour.

432. Cllr Ken Robinson MLA however believes that such a differential approach, which the Department has indicated it is minded to adopt, would raise equality issues. Cllr Robinson also proposed that the clause should be expanded to include the Odyssey Arena and other sporting occasions held at venues with large numbers such as race courses.

433. Ulster Rugby strongly opposes the inclusion of matches played at Ravenhill in clause 43 and is concerned about relying solely on a commencement order to create an exemption. Ulster Rugby notes that the intention of the sports clauses is to complement the safety in sports ground legislation, however believes this provision goes far beyond the scope of that legislation and is disproportionate when applied to Ulster Rugby. It urges the Committee to remove it completely from clause 43 for the following reasons:

  • there is no history of disorder problems at Ravenhill
  • it is inconsistent with legislation elsewhere in the UK and Europe where such legislation applies only to soccer
  • it will have grave implications for the future financial viability of Ulster Rugby
  • if clause 43 were to apply to Ulster Rugby, Ravenhill would be the only rugby ground in the major competitions of the Magners League and Heineken Cup which are played across England, Ireland, Scotland, Wales, Italy and France where restrictions around the consumption of alcohol are in place
  • it could affect obligations to tournament sponsors
  • it is inconsistent with the plans for the redevelopment of Ravenhill which were produced in conjunction with Sport NI and with prior consultation with DCAL, and rely heavily on the provision of better food and beverage facilities within the grounds, and the supply of food and beverage to people in their seats
  • major rugby matches at Ravenhill create a boost for tourism in Belfast and beyond. The limitations on being able to enjoy a sociable drink whilst watching their team at Ravenhill may make the notion of a weekend in Belfast, based around rugby, a less attractive proposition for opposition supporters and particularly those who expect to be able to enjoy a sociable drink whilst watching the game because they can do so at any other rugby match they attend.

434. The URSC, who represents the views of fans who attend Ravenhill on match nights, and several individual rugby fans, also stressed that this legislation is irrelevant given the non existence of crowd trouble at Ravenhill over the past 10 years and reiterated many of the points made by Ulster Rugby.

435. Ulster GAA suggests that, in relation to the possession of alcohol in sports grounds application of the legislation that applies in England and Wales is worth considering when it comes to being more specific about the level of application for different sports rather than using commencement orders. The GAA considers that it is probably best placed, having used Croke Park to manage other fixtures including soccer and rugby, to know that the governing bodies in control of the fixtures should have a level of autonomy and be able to look at the profile of their spectators and the categorisation of fixtures from a risk assessment point of view. Ulster GAA asks for that control to be afforded to governing bodies and it wishes to have more autonomy to control the possession of alcohol at matches rather than there being blanket legislation.

436. Ulster GAA stated that the commencement orders for introduction of clause 43 should not be relied on solely to create exemptions. It indicated that, in taking some of those matters forward, different sports might need entirely different requirements placed on them and believes that regulation is better dealt with by safety advisory groups rather than specific legislation.

437. In response, the Department states that clause 43 creates the offence of possession of alcohol in view of the pitch (excluding rooms to which the general public are not admitted) during set times and highlighted that over-consumption at any of the sports could lead to anti-social behaviour.

438. It's view has been that it is therefore important to provide a consistent framework within which these proposals could be applied to each sport without penalising the well-behaved. The Bill therefore allows for sport flexibility and provides a model (within clause 43 and clause 107 on commencement) that would allow the application of the powers to individual sports to be considered and consulted upon and commenced at different times.

439. The Department proposed to take the powers relating to alcohol, but not to commence them without further consultation with the Committee and the sports bodies. That was the case for all three sports. The Department acknowledged the concerns of Ulster Rugby and agreed that there may not be a need for the provisions in relation to rugby at the moment. However it believed that the powers should be there so that if the need arises, they could, in principle, be introduced very quickly.

440. The Department indicated that it had received feedback that the situation arising from the legislation in England and Wales which resulted in different rules applying for different sports that are played in the same stadium – the no alcohol rules apply at soccer matches but spectators are permitted to consume alcohol in view of the pitch at rugby matches – can lead to confusion among fans.

Alcohol on vehicles

441. The CAL Committee supported this provision subject to clarification around some of the issues raised in written and oral evidence and clarification of the treatment of cross border events. Both Sport NI and the IFA also supported it.

442. Ulster GAA welcomes any measures that stop situations in which buses arrive at grounds and the supporters on them cause a public disorder or a difficulty. It highlights some difficulties that will occur given that only two thirds of the association will be affected by the legislation. As a governing body, Ulster GAA has responsibility for Cavan, Donegal and Monaghan. A cross-jurisdictional partnership with the relevant authorities is important and clarity is sought on the operational function of any cross jurisdictional co-operation on the policing of such matters. Ulster GAA also noted that the reverse operational application to transport operating outside Northern Ireland travelling to regulated matches is not specifically referred to in the legislation.

443. AONISC however has concerns about alcohol being banned on buses travelling to designated football matches, especially international matches involving the Northern Ireland national team as these matches tend not to be contentious and the period of time spent travelling is quite often relatively short. AONISC is of the view that banning the consumption of alcohol on transport to football games will not eliminate the potential for drunken behaviour in or around football matches. The introduction of a ban on drinking alcohol on any transport to a football match will not stop individual fans from drinking for prolonged periods in bars or public houses in the vicinity of the football ground. Indeed, there is the distinct possibility that fans drinking in bars close to any sporting venue have a greater potential to become drunk than any fan arriving by some form of transport. AONISC believes that legislation already exists to deal adequately with unlawful consumption of alcohol in private-hire transport and that the banning of alcohol whilst travelling to matches is unreasonable in a Northern Ireland context. It would urge a rethink of this clause and the introduction of provisions that are commensurate to the nature of Northern Ireland.

444. The PPS cites the proposed offence in clause 44 as an example of difficulty in proving the commission of an offence to the requisite criminal standard, namely beyond reasonable doubt. Clause 44 requires the prosecution to establish that the operator of a hired vehicle knowingly permitted alcohol to be carried in his vehicle. In the absence of an admission from the operator, the amount of alcohol carried may allow a court to conclude that the operator may have knowingly permitted alcohol to be carried in the vehicle. This, however, may be more difficult to prove where the amounts of alcohol are small and easily secreted.

445. The PSNI highlighted that this was one of the clauses that perfectly illustrates the fact that it will have more of a deterrent value than an enforcement value and it would be applied with common sense.

446. Cllr Ken Robinson MLA suggests that, while Translink have their own by-laws covering alcohol on trains, it would perhaps be helpful to expand this clause to cover trains as well. Cllr Robinson also suggests that this provision may cause similar difficulties to clause 41 in terms of identifying "drunk".

447. The Department indicated that existing legislation only bans consumption in vehicles. This clause covers possession in vehicles and is about addressing gaps in the existing legislation and building on the existing offence of consuming alcohol on public service vehicles – the new provision tightens things up in terms of making it an offence to possess alcohol on hired buses. The Department's view is that this will also provide additional authority to transport providers and drivers to refuse to take passengers who are intending or are actually consuming alcohol. These are powers that were welcomed by football authorities and GAA – which already have their own codes in place to control spectator travel and drink.

448. Match buses have been linked to disorder en route and at grounds, so the Department thinks it is right to ban possession on hired buses going specifically to matches as well as on the way home. The Department clarified that trains are specifically not included in the provisions as the offences are already covered by rail transport by-laws and the conditions of liquor licences on relevant train services.

Ticket Touts

449. There was support for this provision from Sport NI and the IFA.

450. The AONISC welcomes the proposal in general terms as a means of deterring criminality and promoting public confidence however indicates that if this part of the Bill is about segregation it should be called segregation and not ticket touting and highlighted that segregation only occurs at matches between the bigger teams. The AONISC expressed concerns that the provisions would criminalise fans who buy or sell tickets for friends and suggested it would make more sense to target the matches that are perceived as high risk and put in place arrangements to deal with those rather than cover all games.

451. In response the Department indicated that clause 45 creates an offence of ticket touting at regulated football matches. The Department indicated that the clause was driven by safety concerns and the need to segregate fans. So far, the few matches where segregation has been necessary have been football matches and the clause only applies to those. The Department indicated that ticket touting powers are included, not for reasons of commercial exploitation – distasteful as that may be - but based on issues of public safety both inside and outside grounds.

452. The Department does recognise that the occasions when ticket touting might occur will be limited, in all likelihood to international games or major finals. The provisions are intended to be preventative and as an aid to match organisers and the police.

453. The Department confirmed that the proposed legislation refers to ticket touting being unauthorised and persons being unauthorised. The Department expects that the terms and conditions under which tickets are sold will say that, if someone is passing tickets on to a family member or an acquaintance or buying them on behalf of identified people, that is fine. The requirement for written authorisation can simply be on the back of the ticket or in the terms and conditions that are published that apply to ticketing. The Department intends to issue some guidance to help the clubs to frame those clauses.

Banning Orders

454. Support for the Banning Orders Provisions came from Sport NI, the PSNI, the IFA and the AONISC, but some issues were raised during the oral evidence. The Committee also questioned whether sports grounds are such dangerous places that banning orders have to be introduced.

455. The CAL Committee agreed that banning orders should be extended to include all categories of matches, not just regulated matches and also to other jurisdictions.

456. The IFA strongly supports the notion of a fully reciprocal system of banning orders throughout the UK and believes a 'stand alone' two tier system is illogical given the high migration of football fans from Northern Ireland to Great Britain. The IFA also highlights that creating a banning order only upon conviction and not fully utilising the 'civil or administrative' process again puts Northern Ireland out of step with the rest of the UK and strongly urges the Committee to review this change. The IFA's grounds for supporting this alternative option is based upon lengthy discussions in England and Wales and especially Scotland where this method has been used to good effect to exclude trouble makers from matches.

457. Cllr Ken Robinson MLA states that any legislation should be capable of dealing with those convicted of misdemeanours around a sporting event, no matter what the event is, by providing for banning orders from similar occasions rather than just focusing on football.

458. The AONISC supports the introduction of banning orders for football supporters where individuals have been engaged in a violent act. It also believes that banning orders should not be restricted to football.

459. The AONISC supports the Department's assertion that making individuals who intend to travel abroad to a football fixture, surrender their passports would be ineffective in Northern Ireland, given that all citizens have the potential to hold dual nationality with the Republic of Ireland. The AONISC favours the method advocated of making the individual have to present themselves to a police station at the time of the match, rather than surrendering their passport.

460. The PSNI noted that the provisions within the Bill differ from the detail contained within the Department's original consultation on the legislative proposals, in that the Bill provides for creation of a banning order only upon conviction, whereas in the original consultation, it was stated that a banning order could be created on application without a prior conviction. The PSNI however remains content with the position taken on the basis that it is a proportionate initial response considering the relative absence of serious football-related disorder experienced elsewhere.

461. The Department confirmed that the intention had been for banning orders to apply beyond Northern Ireland; to be retrospective; and to have a civil application route. However, legal advice had raised concerns that football banning orders requiring a person to report to an NI police station at the time of a match outside NI could be extra-territorial and beyond the scope of the Assembly. The Department was exploring the legislative competence issue and if there was the potential to bring back a provision in relation to a reciprocal system of banning orders throughout the UK the Department would do so.

462. In terms of the civil route the Department had a concern that the imposition of a banning order following what could be lawful conduct, and the potential for remand into custody, would be too wide in the absence of a criminal charge. Retrospective aspects of football banning orders - that they could be imposed following conviction of offences committed before the commencement of the provisions - may contravene Article 7 (no punishment without law) of the European Convention.

463. In relation to views expressed regarding why the provisions were needed, and why the provisions did not apply to other sporting events apart from football the Department stated that football has unfortunately been the sport that has experienced major crowd incidents in recent years and the intention is that these powers will assist in preventing similar incidents in the future. The Department fully acknowledges and welcomes the improvements in behaviour of Northern Ireland team fans. However, the proposals are about addressing and preventing the sort of trouble that has been known to arise - albeit amongst a minority of fans.

464. The Department highlighted that the only thing that would be banned is attendance at regulated matches and expected that the orders would apply to a relatively small number of people. In imposing a banning order, courts will be required by general law to take account of a person's human rights, such as the right to enjoyment and the right to a private life — the usual rights under the ECHR.

Enforcement

465. During the oral evidence sessions the Committee raised issues regarding enforcement. Concerns were expressed regarding who is going to enforce the legislation, particularly as the PSNI is not present at the majority of the matches that will fall within the sporting provisions, and what evidence there was to suggest stewards would do it. Views were expressed that there was no point in introducing legislation if it cannot be enforced.

466. Respondents also expressed concerns that the proposals would be unworkable unless there is adequate stewarding at a match. Even with adequate stewarding concerns were raised as to the role of a steward in enforcing legislation and whether appropriate and robust evidence could be procured.

467. The PPS indicated that while the policy intent behind the sporting provisions is clear , there may be difficulty in certain circumstances in satisfying the test for prosecution or in proving the commission of an offence to the requisite criminal standard, namely beyond reasonable doubt.

468. The PSNI indicated that if they are not present at a match, they are reliant on evidence being presented by third parties who were present. The PSNI have been trying to push to a position in which a lot of these matches are self-regulated, quite successfully over the past years, but if evidence is presented, whether through video footage taken on site or evidence from stewards or marshals, the PSNI will consult with the PPS and decide what meets evidential standard and what does not.

469. The PSNI acknowledged that there could be difficulties if an act takes place when the police are not there and indicated that some of the offences will require a different approach and prior consultation with the PPS. They also highlighted that it would not stop the responsibility on clubs to self-regulate and on occasions ban people from their grounds.

470. In response, the Department states that clause 55 would give police powers of ground entry and personal search but with most games self-stewarded there needed to be clarity of roles and discretion in application. The Department confirms that responsibility for safety at sports grounds rests with the organisers of games and owners of venues. It will be for match organisers to manage events with the PSNI available should they be required. Match organisers can request their presence if required though police will retain the power to act if it becomes necessary. The package however gives match organisers the strength of the criminal law behind them as an important backstop and preventative tool.

471. The Department indicated that in many ways, it is no different from any other legislation or from situations that occur every day. For instance, there can be trouble in shopping centres, amusement arcades and nightclubs, and, in those instances, there are many situations in which stewards or security guards are the first line of defence.

472. The Department stressed the wider package, which includes issues around safety and the concept of good safety management, and good behaviour fitting in with that and creating the kind of safe, welcoming and comfortable environment for sporting grounds. The Department views the provisions as a useful deterrent and a tool to encourage an acceptable standard of behaviour.

A requirement to include a definition of Ulster GAA

473. Ulster GAA is concerned that, in setting out the definitions of regulated matches, the Association that they represent and that controls Gaelic games is not defined in Schedule 3, and this may create a potential loophole in the future.

474. The Department pointed out that other organisations such as the IFA and IRFU are defined in Schedule 3 because it mentions these bodies specifically. The Bill however refers to gaelic games not the GAA, therefore there is no need to include a definition. The Department undertook to ensure that the current wording of Schedule 3 fully covered Ulster GAA and in due course confirmed that this was the case.

Part 5 – Treatment of Offenders

475. This part of the Bill makes various amendments to existing legislation.

476. There was broad support for the provisions within this part of the Bill, with the Bar Council recognising that the provisions are "tidy up" improvements, not new sentences in themselves, addressing gaps and inconsistencies in existing laws and the PSNI stating that the proposals will provide more robust sentencing options.

477. Comments were made in both written and oral evidence on a number of issues including the increases in penalties for certain knife offences and for common assault; the extension of the maximum period for deferment of sentences; breach of licence conditions by sex offenders; and supervised activity orders.

Increases in penalties in respect of common assault and knife crime

478. Extern and the PSNI support the increase in maximum penalties in respect of common assault and knife crime.

479. Extern is of the view that the increases denote the seriousness of such illegal behaviour.

480. The PSNI states that while it is of some reassurance that the number of knife related incidents in Northern Ireland schools remains relatively low the proposal for an increase in penalties for knife offences in schools will both act as a deterrent and demonstrate the commitment of the devolved administration to ensure that schools remain a safe environment.

481. The Department highlighted that the provision in clause 56 to increase the maximum penalty for common assault to six months imprisonment was developed at the request of District Judges, who reported that the existing maximum penalty of three months imprisonment was not sufficient to deal with the wide range of cases tried under common assault. The proposal was also supported by the Minister of Health as it would have the benefit of increasing the sentencing powers available to the courts when dealing with cases relating to health care workers assaulted in the course of their duties.

482. The Department also indicated that clause 57 amends an inaccurate sub-section reference in Article 90 of the Criminal Justice (NI) Order 2008 to ensure the full and consistent application of the 2008 package of maximum sentences for offences involving knives, offensive weapons, etc,.

483. In response to questions by the Committee during oral evidence the Department confirmed that the increase in penalties relating to knife crime would apply to juveniles and adults.

Deferment period of sentences

484. Extern considers that the extension of the deferment period must be seen as giving the offender a more realistic opportunity to show change, improvement and evidence of sustaining such. Extern also recognises that the offender would have the opportunity to comply with required programmes but may require some level of support to maximise effectiveness and positive outcomes.

485. The Department states that clause 58 increases the period for which sentences can be deferred from six months to twelve months. This power will allow courts to better monitor improvements in behaviour ahead of sentencing. The increase to 12 months was requested by District Judges who felt that the longer period would offer them a better timeframe for assessing the behaviour of some offenders ahead of sentence. The Department's view is that the extra time will create real prospects for offenders to show good behaviour; indicate an ability to stay out of trouble; and demonstrate a change before informed sentencing takes place. The Department did not envisage an increased level of support would need to be delivered as a result of extending the deferment period.

Breach of licence conditions by sex offenders

486. The Probation Board NI (PBNI) welcomes clause 59(11) (a) as a means of overcoming problems, associated with petty sessions boundaries, in respect of warrant applications for offenders residing in Northern Ireland. In relation to warrant applications required outside of office hours, PBNI would ask that the single jurisdiction boundary also applies to warrant applications before Lay Magistrates. In addition, it would be beneficial to extend clause 59 (11) (a) to custody Probation Orders and Probation Orders respectively.

487. The PBNI also points out that the provision does not deal with the bigger issue, of territoriality in respect of Article 26 Orders, as per the Criminal Justice (NI) Order 1996. As the law stands at present Article 26 Orders are limited to the territory of Northern Ireland. Therefore if an offender leaves Northern Ireland and travels / moves to England, Scotland or Wales, the Article 26 Order is not enforceable. Furthermore sex offenders, in such circumstances, cannot be compelled to return to Northern Ireland. Given the potential public protection concerns that could arise in such instances, PBNI recommends that legislative change is made to extend the provision of Article 26 Orders, to the jurisdiction of England and Wales; and Scotland.

488. In response to the issues raised by the Probation Board, the Department stated that creating a single jurisdiction for warrant applications, custody probation and probation orders had not been considered for the Bill but will be considered as part of a wider review of jurisdictional boundaries for future legislation. Extending the territoriality and enforcement of Article 26 licences beyond Northern Ireland could not be created by way of a NI Justice Bill and would require amendment to UK legislation.

489. The Department recognises that wider powers would be useful beyond this jurisdiction and will raise with the Ministry of Justice and the Home Office the question of whether those changes can be accommodated in future legislation for England and Wales. The Department is also prepared to look at whether the provisions on warrants could be extended to custody orders and probation orders as well and will consider it for future legislation.

490. The Committee welcomed the commitments given by the Department on these matters and will monitor progress in this area.

491. The Department also highlighted that it is working separately on an EU decision on mutual recognition which will be helpful in enforcing things in other European countries, including the Republic of Ireland.

Supervised activity orders

492. In its oral evidence to Committee, PBNI stated that in respect of supervised activity orders it has made preparations to pilot disposal and can see the benefits of those orders, such as the direct benefit to the community through community service work and reserving prison for those who pose the greatest risk to the public.

493. The NIHRC indicated that it has previously drawn attention to the lack of an alternative to custody for fine defaulters in Northern Ireland and that it is disappointing that seemingly minor amendments to commencing the supervised activity order scheme (legislated for in the Criminal Justice (NI) Order 2008), are now part of a wide-ranging Justice Bill, the outworking of which may lead to further delay in the introduction of an alternative disposal.

494. In respect of clause 63(2)(c), the Commission raises concerns that the circumstances in which the Court would consider committal more appropriate than a supervised activity order should not rest simply on the availability of a supervised activity order in a particular locality. A fine defaulter living in one area of Northern Ireland could be committed to prison for fine defaulting whereas another living in an area covered by such a scheme could benefit from a non-custodial disposal. The Commission sought clarification as to when supervised activity orders will be piloted; what geographical area will be covered; and how long the pilot is envisaged to run prior to evaluation.

495. The Department indicated that clause 63 is a technical adjustment to allow fines imposed abroad to be mapped onto NI supervised activity order powers. The clause ensures that supervised activity orders, when introduced, are available to magistrates' courts in respect of anyone who has had a financial penalty imposed elsewhere in the EU, who then returns or moves to Northern Ireland without having paid the fine, and in respect of whom the penalty is transferred to Northern Ireland.

496. The Department's view is that it is important to have the opportunity to run a short pilot on supervised activity orders for a number of months to see how they work in practice and how linkages between the Court and the Probation Service work.

497. During oral evidence the Committee sought further clarification regarding the proposed pilot project. In response the Department indicated that it would look at supervised activity orders and a possible pilot project in the context of a wider fine default strategy.

Part 6: Alternatives to prosecution

498. This part provides for two new diversionary disposals – penalty notices and conditional cautions – aimed at dealing effectively with minor offences outside the court room. They may be offered to offenders as an alternative to prosecution in suitable cases but offenders will retain the right to ask to have their case heard at court instead.

499. Penalty notices are introduced for first-time or non-habitual offenders committing a prescribed offence. Paying the notice within 28 days discharges his liability for that offence. They are issued by the police, without a direction from the PPS. There are 7 eligible offences which are listed in Schedule 4. Offences will attract either £40 or £80 penalties. Where recipients take no action within 28 days of the issue of the penalty, its value is uplifted by 50%, registered as a court fine and enforced through existing court fine default arrangements.

500. The PPS is currently able to direct the issue of an unconditional caution (by police or departmental officials) as a disposal in suitable cases. The conditional caution provisions will enable prosecutors to attach rehabilitative and reparative conditions to a caution with which the offender must comply or face reconsideration of prosecution for the original offence. This disposal is intended to be used for individuals who might willingly avail of the opportunity to begin addressing any issues underpinning their offending behaviour in order to minimise their risk of re-offending. Rehabilitative conditions would include for example attendance at relevant programmes, whilst reparative conditions may include an oral or written apology to a victim or other reparative activity to make good the harm caused.

501. There were a number of issues raised on this Part of the Bill in both written and oral evidence including the general principle of alternatives to prosecution; operation of the penalty offences system; recommendation of diversionary measures rather than fines; restriction of application to over 18s; protection of an individual's rights; requirement for safeguards and guidance for police officers; conditional cautions; consideration of victims; provision for vulnerable offenders and young people; and Assembly scrutiny of delegated powers.

General principle of alternatives to prosecution

502. There was a general welcome for the introduction of alternatives to prosecution as a means of freeing up police officers and court officials; as a cost effective measure and as a means of promoting restorative interventions involving the victim and the community.

503. The Prisoner Ombudsman for Northern Ireland strongly supports the new proposals. She knows through her work that often the needs of victims are not best addressed through an offender receiving a prison sentence and often the length of the sentence means that it is impossible for the Prison Service to do any meaningful work with the prisoner. The opportunities for this are further reduced if a prisoner is on remand.

504. Some interested parties expressed disappointment that fixed penalties were being proposed as an alternative to prosecution and outlined their preference for the use of other non-monetary diversionary options. In many cases this was based on the premise that those unable to afford to pay a fixed penalty would inevitably end up in the criminal justice system on default without any consideration of the sometimes complex needs that underpinned their offending behaviour.

505. In response, the Department of Justice indicated that fines remain the most commonly used disposal at court, accounting for around two thirds of all sentences imposed in any year. The proposed fixed penalty therefore does not represent an additional application of a financial penalty but rather an alternative to the court fine which would otherwise be imposed in those cases. The fixed penalty amounts of £40 and £80 are pitched slightly lower than the average court fine which a first-time or non-habitual offender is likely to receive for one of the seven eligible offences proposed. An individual retains the right to opt to have the offence considered at a court hearing at which their means can be taken into consideration in setting the appropriate court fine level or agreeing payment by instalment.

506. During pre-legislative consultation on these proposals, the Committee recommended an extension to the arrangements for dealing with first-time petty shoplifting to provide that a fixed penalty could be issued in a case of petty shoplifting where the individual agreed to replace goods which had been eaten or inadvertently spoiled and not just where goods were recovered in a re-saleable condition.

507. The Department accepts the value in this suggestion and proposes to supplement the provision in the administrative guidance to police accordingly. This will provide police officers with additional discretion to issue fixed penalty notices in cases of first-time petty shoplifting where the offender and the retailer are in agreement to the cost of spoiled or consumed goods under £100 being reimbursed.

508. The Committee welcomes the action being taken by the Department in response to its views.

Operation of the penalty offences system

509. The PSNI outlined its understanding of the proposed system and the differing manner in which various offences will be handled. It is concerned that this differing approach may add unnecessary bureaucracy and suggests that an alternative, simpler process could be based on the use of a Penalty Notice for up to two offences in a rolling twelve month period. For example, an individual can have one issued for criminal damage and a further one for theft within a rolling year. However any second or subsequent Penalty Notice for the same offence would only be issued in cases where another non-court disposal is deemed inappropriate.

510. It is the PSNI's view that penalty notices will best contribute to effective justice as one of a range of available measures which includes Discretion, Informed Warnings, Cautions and Prosecutions and which form part of an escalating process to address offending.

Recommendation of diversionary measures rather than fines

511. Several respondents recommended increased emphasis on alternatives to divert people from the criminal justice system and address the root cause of the offending.

512. Include Youth recommends the use of effective diversionary alternatives for young people and is sceptical as to whether the approach favoured within the Bill, of using fines and conditional cautions, is the best method to keep young people out of the criminal justice system and to keep them from re-offending.

513. Include Youth highlights that the current proposals will not assist someone whose offending behaviour is occurring within a context of mental health problems, drug and alcohol abuse, homelessness, dealing with past experiences of abuse and a chaotic and unstable social background.

514. A holistic early intervention and diversionary approach will not only be more cost effective but will also actually deliver the desired outcome. Following the oral evidence session, Include Youth wrote again to the Committee and stated it was now of the opinion that the proposals about the use of fixed penalty notices and conditional cautions should be removed from the legislation and held back until the findings of the Youth Justice Review, the development of the Reducing Offending Strategy and the Prison Review can be assessed.

515. NIACRO accepts that penalty notices and conditional cautions for minor offences may reduce police, prosecution service and court caseload. They may also reduce delay in the justice system but NIACRO disputes that they will reduce re-offending.

516. NIACRO supports focussed interventions which can assist those involved in low level offending in remaining out of the criminal justice system. It proposes a system of assessment of offenders at the first point of contact, when they are apprehended or being charged with a low level offence. Instead of immediately being issued with a penalty, the individual should be offered a referral to an appropriate service. In offering a diversion as the first alternative to prosecution, the causes of offending behaviour can be addressed. NIACRO believes its proposals could result in the same cost reductions as is being suggested can be achieved by these proposals.

517. NIACRO acknowledges the DOJ proposals include a rehabilitative element via conditional cautions and commends the Department for seeking alternatives to prosecution. However it is concerned the proposals focus almost exclusively on fines and conditional cautions neither of which deal with the causes of offending behaviour. NIACRO recommends the introduction of a proper diversionary based system, rather than reliance on fine based solutions and conditional cautions, as alternatives to prosecution.

518. The WSN and Women's Aid welcome the focus on developing alternatives to prosecution. However both are concerned that Part 6 of the Bill relating to alternatives to prosecution focuses mainly on financial penalties which will not address the causes of offending behaviour. They believe that financial penalties are not a suitable alternative for all offenders, particularly female offenders given that the recently published "Strategy to Manage Women Offenders and those Vulnerable to Offending Behaviour" acknowledges that poverty is one of the prime motivators for women becoming involved in offending behaviour. They also have concerns that conditional cautions will continue to bring people into the Criminal Justice System and support the view that interventions should take place to divert low level offenders away from the criminal justice system and address the causes of offending behaviour.

519. The NIHRC has consistently stated its preference for a strengthening of alternative or diversionary measures that address the root causes of re-offending, rather than recourse to additional penalties for minor offences that have the potential to escalate to fine default and potential imprisonment, particularly for low income groups. In considering the imposition of a fine as an appropriate response, the high levels of poverty that exist in Northern Ireland must be acknowledged along with the potential difficulties that this may present in relation to fine default.

520. The Department highlights that there are already a range of existing diversionary measures – based around restorative interventions, warnings and cautions - which act as alternatives to prosecution. The fixed penalty provisions increase the range of options available for responding proportionately to isolated and uncontested incidences of minor offending by mainly first-time offenders. The seven eligible offences which have been identified would usually, on conviction in the Magistrates' Court, result in a court fine of £100 or less.

521. In response to questions from the Committee, the Department provided a list of existing alternatives to prosecution. These include verbal warning; road traffic fixed penalties; driver improvement scheme; police discretion; juvenile and adult informal warnings; juvenile restorative caution; adult caution; youth conference order; and community based restorative justice disposal (authorised by PPS).

Restriction of application to over 18s

522. MindWise notes that the penalty notice is for people over 18 years and suggests this should read 'people who have attained the age of 18 years'. The term over 18 years suggests this is aimed at those people aged 19 years and above. The age of adulthood is 18 years with a child being under 18 years. Include Youth welcomes the restriction of fixed penalty notices to over 18 year olds. However, it is concerned that police officers may mistakenly think that a youth may be over 18 years old when they are not.

523. Some respondents to the Department's consultation commented that officers must be assured of an individual's identity and age before considering the issue of a fixed penalty.

524. The Department confirmed that police undertake checks to ascertain the age of an alleged offender. This is a fundamental requirement and guidance to police will clearly state that a fixed penalty may not be issued by an officer unless the age and identity of the alleged offender has been confirmed. The Department explained that in the event of the police issuing a fixed penalty notice in error to an individual under 18 years old, then that ticket would be declared void as the issue of the penalty would be unlawful. The Department also provided in writing to the Committee information on the checks undertaken by the police to ascertain the age of an alleged offender.

Protection of an individual's rights

525. The Human Rights and Professional Standards Committee of the NI Policing Board expressed concern that the potential out workings of the new diversionary proposals are consistent with Human Rights standards, Equality obligations and the PSNI Code of Ethics.

526. The Bar Council emphasises the need to ensure that power to issue fixed penalties notices is exercised responsibly by police officers. The issuing of a notice is effectively an invitation to an individual to accept responsibility for a criminal offence; it remains important that the individual is fully advised as to the consequences of acceptance. In particular there is a risk that this could have a potentially disproportionate impact on younger and vulnerable males and in this respect the guidelines issued by the Department to the PSNI will be important. There is also a danger that the "easy fix" of the penalty notice results in the penalisation of behaviour that would have previously attracted only verbal censure without resort by police to a formal response.

527. The Law Society considers that it is important to note that penalty notices effectively operate outside of the justice system. The Committee may wish to consider the judgement of the Court of Appeal in England & Wales in R v Hamer (2010) EWCA Crim 2053, in particular, the Court's comments; "the delivery of justice implies the admission or determination of guilt and not the mere issuing of a notice of a penalty based on reasonable suspicion. It is correct to describe Fixed Penalty Notices (FPNs) and Penalty Notices for Disorder (PNDs) as punishment for suspected offending, or a deterrent, as they plainly do deter. However, it seems to us to cause confusion, and may well have caused confusion in the present case, by the assumption that the issue of such a notice is some form of "swift, simple and effective justice" which is not in the ordinary sense of these terms."

528. In the Law Society's view, this is an important observation to be conscious of when considering this proposal and in light of it, appropriate safeguards must be put in place. Government must ensure that fixed penalty notices are only issued when a police officer has a genuine reasoned belief that a person has committed a penalty offence.

529. The Law Society states that police officers should be properly trained and the exercise of their powers should be audited. It is of fundamental importance that persons are informed of their right to be tried for the alleged offence. The penalty notice should inform the recipient of their right to seek independent legal advice. The Society notes the provisions of PACE will not apply when a suspect is having a fixed notice served upon them. It is considered that any comments from the suspect at this time should not be considered as evidence of guilt.

530. In relation to conditional cautions the Law Society notes that they will only be given where an offender signs a document admitting to the offences committed. Again the Society considers that sufficient safeguards must be put in place to ensure that any admission by an offender is made in the full knowledge of the case before him and the consequences. Government must avoid a situation in which an offender admits a crime he is not guilty of, simply to avoid prosecution. The Code of Practice referred to at clause 82 must provide appropriate safeguards and alleged offenders should be advised to discuss their options with their solicitor.

531. Include Youth stated that the use of Fixed Penalty Notices (FPNs) is a form of summary justice and as such removes the right to due process. There is a concern that overzealous application of FPNs could result in large numbers of young people being brought into the criminal justice system, through their inability to pay. It is also concerned that an individual may agree to a fine even though guilt has not been totally established, simply to have the matter dealt with quickly. This could be particularly true of a young person who may want to choose the immediate easiest option at a moment in time, but is not completely informed about the consequences of failing to pay.

532. MindWise stated that the associated instructions that accompany the penalty notice needs to be in a format that is understandable to all recipients.

533. It is the Department's view that the rights of individuals, including vulnerable individuals, are properly observed in the provisions in the Bill. In relation to the Fixed Penalty Notice, the individual will have a period of 28 days after issue in which to pay or to reject a fixed penalty notice and request a court hearing instead. This will be explained by the issuing officer and will be fully detailed in writing on the penalty notice itself. The individual can seek the advice of a legal representative before exercising their options.

534. The Department also highlighted that there are two additional safeguards built into the process which provide that the individual can make a declaration to the court to set aside the registration of the penalty on default (in circumstances where he or she is not the recipient of the penalty notice or had already requested a court hearing within the 28 day period) or the court can do so, of its own volition, in the interests of justice. The latter provision enables the court to deal with any case where an individual has a legitimate reason for not complying with the requirements within 28 days. The Department believes that this adequately protects the individual's right to a fair trial under Article 6 of the ECHR.

Requirement for safeguards and guidance for police officers

535. The Law Society states that police officers should be properly trained and the exercise of their powers should be audited. The Bar Council and Extern state that guidelines issued by the Department to the PSNI will be important and should be clear. Include Youth is of the view that the development of the Guidance will be critical in the outworking of the use of fixed penalty notices and would welcome the inclusion of guidance specifically for dealing with 18-21 year olds.

536. In its written submission BIRW states that there is a need for a safeguard for individual civil liberties in the form of a mechanism to challenge the validity of either the penalty notice or the conditional cautions as these both enhance the discretionary powers of the police officer. It is important that if these proposals are implemented both their effectiveness and integrity of application are regularly assessed and monitored.

537. The NIHRC states in its submission that this provision creates a power for the police to dispose of certain prescribed offences without a direction from the PPS, through a FPN. There is a potentially problematic degree of discretion available to the police in responding to a range of offences such as being drunk; breach of the peace; disorderly behaviour; obstructing police; indecent behaviour; criminal damage and petty shoplifting. This proposal removes the separation of functions of investigation, prosecution and adjudication, so a robust mechanism would have to be in place to ensure effective police training and oversight of the use of the proposed new powers. The seriousness, or otherwise, of such offences is open to interpretation, and runs the risk of being susceptible to subjective decision-making by police officers.

538. The Commission is of the view that net widening through an 'over-enthusiastic' application of the Penalty Notice may run the risk of minor offending behaviour that may previously have been disregarded or dealt with informally by police officers, escalating to the use of a penalty. Clear guidance to police officers must be put in place to ensure that responses are proportionate, reasonable and fully accountable.

539. In response, the Department indicated it will produce clear guidance on the issuing of fixed penalty notices by the police and the PSNI has committed to undertaking staff training before implementing fixed penalty provisions. In terms of internal monitoring, supervisory officers will check and verify all penalty notices issued and operational experience will also be subject to external reviews by Inspectors from Criminal Justice Inspection NI.

Conditional cautions

540. Extern and the Prisoner Ombudsman for Northern Ireland believe that the system of conditional cautions can provide a more effective means of providing reparation as they will include measures to address underlying offending behaviour. They can also helpfully promote restorative justice interventions involving the victim and the community.

541. The NIHRC states in its submission that decisions in relation to this disposal are prosecution-led, unlike the issuing of Penalty Notices which are police-led. This disposal appears to conform better to restorative justice principles, in that it enables prosecutors to attach rehabilitative and reparative conditions to a caution. However, the Commission understands that a conditional caution will be included on an individuals' criminal record. Experience in England and Wales demonstrates that compensation to the victim is the most commonly applied condition to cautions (in 64% of cases). Again, the issue of cost neutrality has been raised by way of explaining the high use of compensation rather than referral to rehabilitation programmes. Such high use of a condition that involves financial compensation raises similar concerns in relation to the ability of some low-income groups to meet the compensation payment. If such a disposal were to be introduced in Northern Ireland, conditions other than a financial penalty should be considered where appropriate.

542. Whilst the Probation Board welcomes the clauses covering Conditional Cautions, it states that more detail on budgetary and personnel commitments will be required in order to properly cost this development in the Justice procedure.

543. The Department indicated that the conditional caution is aimed more specifically at assisting individuals to address matters underpinning their offending behaviour and minimise their risk of re-offending. This is achieved through a combination of rehabilitative conditions, which challenge inappropriate behaviour and support individuals in tackling substance misuse or other factors contributing to offending, and reparative conditions which seek, where appropriate, to repair the harm caused to victims.

544. The Department believes their introduction will bolster the range of options for considering the diversion of suitable cases of minor offending from prosecution. Their introduction is however only one element in the development of a cross-cutting Reducing Offending Strategy which will encompass broader objectives dealing with prevention, diversion, sentencing and reducing recidivism.

Conditional Cautions - Consideration of victim

545. Victim Support states the proposal in the Bill to have restorative conditions imposed as part of the new diversionary disposals may provide a benefit to an individual victim and perhaps also to a local community. However it is essential that an identified victim is provided with an opportunity to comment on action being proposed in relation to an offender, particularly where the victim's participation is integral to the proposal. Only the victim is in a position to advise if a proposed reparative condition would serve the purpose as opposed to 'pouring salt on the wound'. For example, a victim of criminal damage may not want to have the person responsible approach their home. They may be fearful of reprisals and may not wish the offender to be provided with their name and address. For these and other reasons it is essential that the police consult with any victim before such reparative conditions are imposed to take fully into account the wishes of the victim. In addition, appropriate support needs to be provided to the victim to ensure that they are fully informed of their options and can thus make an informed choice.

546. The Department confirmed that this matter will be covered in the Code of Practice.

Conditional Cautions - Provision for vulnerable offenders and young people

547. A number of respondents expressed the view that vulnerable offenders, who required specific support during the investigative process, should be similarly supported during the cautioning process to ensure full comprehension of its requirements and the consequences of non-compliance. The Department confirms that these matters which will be covered in the Code of Practice.

548. MindWise states that the development of a cautioning system that included conditions helping rehabilitation or reparation is a welcome expansion of the caution process; however care is needed with regards to those offenders who admit offences and have a mental health difficulty. As part of the cautioning process an 'advocate' trained in supporting vulnerable people should be present, and ensure the same level of understanding takes place regarding the administering and accepting of a caution as occurs in the initial investigation stage. MindWise recommends that its suggestion be incorporated into the statutory codes namely, that the services of a trained Advocate be called upon to support the person (now to be cautioned) if that person required the assistance of an appropriate adult during the investigative stage of the enquiry.

549. If a person is interviewed and is deemed to need an appropriate Adult under PACE during questioning and admission, then this confirms the person requires support. It recommends the service of an advocate is called upon to attend with the person when cautioned so that there is clarity of understanding of all the criteria laid out in the caution, and any conditions that follow. This is of particular importance as breach of the caution conditions carries a power of arrest for failure to comply. In respect of conditional cautions the Department must prepare a Code of Practice.

550. Women's Support Network (WSN) and Women's Aid state that clause 77(4) of the Bill provides a requirement that an authorised person explains the effect of the conditional caution to the offender and to warn the offender of consequences in instances of failure of non compliance. Both organisations are concerned that the caution could be given when an offender is in distress or is experiencing mental health problems, domestic violence or addiction issues. WSN and Women's Aid urged the Committee to ensure that cognisance is taken with respect to persons with mental health and other complex needs to ensure they understand the implications of the conditional caution. WSN and Women's Aid also recommends training for authorised persons i.e. police officers or persons authorised by the Director of Public Prosecutions on complex needs such as mental health issues, domestic violence and addiction issues and ensuring that women are diverted to appropriate support services.

551. NIACRO and Include Youth express concerns that conditional cautions and youth conference plans, while attempting to deal with causes of crime, can also result in barriers to an individual's chance of employment and/or provide the entry to the criminal justice system that leads to further offending.

552. NIACRO states that, as the proposed Justice Bill places further expectations on conditional cautions which means that a person who fails to comply without reasonable excuse (clause 79 (1)) can be arrested without a warrant, there is a very real chance vulnerable people may fall through the cracks and be arrested without knowing or understanding why.

553. WSN and Women's Aid note that there is no definition of what constitutes reasonable grounds contained within clause 80, nor does it define what constitutes a reasonable excuse. WSN and Women's Aid seeks assurances that those accused of non compliance of conditions are afforded every opportunity to provide a reasonable explanation and to have that explanation verified. WSN and Women's Aid recommends the Bill is amended to include this safeguard.

554. In response to the views expressed that vulnerable offenders, who required specific support during the investigative process, should be similarly supported during the cautioning process to ensure full comprehension of its requirements and the consequences of non-compliance the Department indicated this will be covered in the Code of Practice.

555. The Department also stated that in relation to clauses 79 and 80 decisions about whether an individual has failed to comply with conditions without reasonable excuse will be made taking account of all available information and in accordance with guidance set out in the Code of Practice. The power of arrest will only be exercised in circumstances where such action is necessary to allow such a determination to be made. It is intended that offenders are assisted as far as possible in achieving their rehabilitative or reparative objectives and that is why there are provisions at clause 78 which allow conditions to be varied in recognition of changing circumstances or unforeseen consequences.

Conditional Cautions – Code of Practice

556. The Law Society states that it is proposed that a conditional caution will only be given where an offender signs a document admitting to the offences committed. The Society considers that sufficient safeguards must be put in place to ensure that any admission by an offender is made in the full knowledge of the case before him and the consequences. A situation must be avoided in which an offender admits a crime he is not guilty of, simply to avoid prosecution. The Code of Practice referred to at clause 82 must provide appropriate safeguards. Alleged offenders should be advised to discuss their options with their solicitor.

557. The Department advised that in relation to conditional cautions, the offender will have made a PACE-compliant admission of the offence before the disposal is administered. The caution, its conditions and the consequences of non-compliance will be fully explained by the issuing officer, in the presence of an appropriate adult where this is required, and provided in writing. The individual can seek the advice of a legal representative before exercising their options.

Assembly Scrutiny of Delegated Powers in Clause 82

558. The Assembly Examiner of Statutory Rules, in his scrutiny of the delegated powers contained in the Justice Bill, highlighted that clause 103(3) requires the Department of Justice, in relation to clause 82(5), to prepare a Code of Practice in relation to conditional cautions and lay it (or any amending code) before the Assembly in draft, after which the Department may make an order to bring the code into operation.

559. The Examiner noted the provision is closely modelled on section 25 of the Criminal Justice Act 2003 for England and Wales with one crucial difference – an order bringing a code of practice into operation under section 25(5) of the 2003 Act is subject to draft affirmative procedure whereas an order under clause 82(5) of the Justice Bill is subject only to negative resolution. In terms of scrutiny and procedure generally - the Department could lay the draft code of practice and draft order at the same time - the Examiner is of the opinion that the draft affirmative procedure is more appropriate in this instance.

Part 7: Legal Aid, etc.

560. This part allows rules/regulations to be made to introduce a new means test for the granting of criminal legal aid in Northern Ireland and to make amendments to Legal Aid. These include powers to enable the courts to make recovery of defence costs orders; repeal of a provision which prevents the Northern Ireland Legal Services Commission from establishing or funding services under a Litigation Funding Agreement; and a number of miscellaneous amendments to legal aid legislation, mainly relating to the scope of civil legal services, to ensure that access to justice is maintained.

561. There were several issues raised in relation to Part 7 of the Bill. These included the general provisions of the Part; a fixed means test for criminal legal aid; orders to recover defence costs of legal aid; non molestation orders and legal aid; Assembly scrutiny of delegated powers; and Litigation Funding Agreements.

General provisions of Part 7

562. The Bar Council highlights the potential tension or conflict, on the one hand between the need to reduce costs and on the other the requirement to do business better and improve access to the justice system. The Bill provides for a new means test for criminal legal aid and for recovery of defence cost orders in appropriate cases. It is the Bar Council's view that in drafting the Regulations it will be imperative that those who appear before the Criminal Courts and who are charged with serious crime are afforded proper representation and that the most vulnerable in our society have access to Legal Services. The balance will need to be struck in such a way as to ensure effective representation for those who appear before the Courts. The Regulations will also need to have regard for the entirety of the potential financial implications for those brought before the Courts and should not be judged in isolation.

563. The Law Society notes that the Bill will create new administration and questions has this been costed and have funds been set aside to deliver it. There will be a legal aid impact, new cases, new offences; a need for new legal aid defence certificates and an inevitable rise in legal aid spend. The Law Society questions whether that is provided for in the estimates and funds to meet these costs.

A fixed means test for criminal legal aid

564. BIRW does not support these proposed provisions to reform criminal legal aid that implies that defendants who are financially able to contribute to their defence costs should be required to do so. It opposes the principle because defendants have no control over whether or not they face prosecution and it should therefore be the State that bears the cost of prosecution. This is particularly so where a defendant is acquitted, as they should not be expected to pay for being prosecuted for a crime of which they are innocent. BIRW goes on to state that if these proposals are pursued the following safeguards are required:

  • The mechanism devised for means testing does not result in the infringement of the defendant's human rights to be properly represented. A defendant may choose to represent him/herself, although not adequately able to do so, risking their right to a fair trial.
  • When making the decision as to whether someone is financially eligible for legal aid, significant consideration must be given to the monthly expenditure of the defendant.
  • Consideration of the major negative financial implications on the defendant's dependents.

565. BIRW recommends that if the amendment to Article 31 of the Legal Aid, Advice and Assistance (NI) Order 1981 at clause 85(2) is adopted, it is important that the prescribed financial eligibility is not too strict and can be applied with discretion.

566. Extern agrees that it seems realistic to review the means-test element which permits the granting of legal aid. However any review would need to consider Extern's experience that the offenders it deals with are almost wholly dependent on state benefits; face a range of personal, structural and legislative barriers to employability; have no assets; have low levels of numeracy, and literacy generally and limited money management skills.

567. The WSN and NIACRO voiced concern that the provisions within clause 85 have the potential to limit a person's access to a fair hearing. WSN state that access to a fair hearing is protected by Article 6 of the European Convention on Human Rights. Article 6 (1) sets out that "in determination of civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." Furthermore Article 6 (3) (c) provides that where a person is facing a criminal charge, they have a minimum right to free legal assistance if they do not have the means to pay for it themselves. WSN wishes to highlight the importance of ensuring the right of access to a fair hearing, particularly for those going through the criminal justice system and ensuring the State complies with its obligations under Article 6 of the European Convention on Human Rights (ECHR).

568. NIACRO also states that the interests of justice test must have precedence over means testing. Reform of the system should not be driven by the need to reduce costs.

569. The Bar Council fully accepts that there is a need to reduce the Legal Aid bill from £104 million to £79 million; however it has a number of issues with the proposed change to the means test for eligibility for criminal legal aid. Firstly, it is the strongly held view of the Bar Council that the decision to grant legal aid should remain a judicial function. The court and judges are best placed to judge what is in the interests of justice. Secondly, with regard to the level at which the financial eligibility test will be set, the Bar understands that the legislation is closely modelled on the English and Welsh systems and its introduction in this jurisdiction with the same financial threshold means that it will have serious consequences for legal representation. The Bar expressed the view that it cannot be right that a schoolteacher, for example, or someone with a reasonably good standard of living who earns more than £22,500 a year, would be denied legal aid if they were faced with a serious criminal charge. The Bar also questions whether the levels will be different for different courts. Will the test for someone who is facing a minor charge in a Magistrate's Court be very different from that for someone who is facing, for example, a murder charge or a serious fraud charge in the Crown Court?

570. The third issue that the Bar points out is that the new test will require a high level of administration and that will result in very significant administrative costs. Finally the Bar is concerned that the new test will result in delay as people are entitled to say that they are not ready for trial because their legal aid application has not yet been considered.

571. The Law Society also emphasised the need for proper analysis of the likely cost of the schemes, and the importance of putting into place effective administrative arrangements to ensure that the introduction of a fixed means test for criminal legal aid does not create delay in the criminal justice system. The Society considers the levels of eligibility must be set appropriately and an individual's right to a fair trial must remain paramount.

572. The Law Society believes that reform of the means test is so closely intertwined with a review of the interests of justice test that it is inappropriate to consider reform of one without considering the consequences for the other. It is the Law Society's view that means testing should first commence in the Magistrates Court and be the subject of a pilot scheme before it is fully introduced across all courts. Early review arrangements should also be put in place.

573. The Law Society highlights that introducing prescribed financial limits to assess financial eligibility for criminal legal aid is likely to exclude all but the poorest citizens in Northern Ireland and believes that it is incumbent to consider the particular circumstances of Northern Ireland. The Society hopes that lessons learnt from the post-implementation review conducted in England and Wales are reflected in any arrangements put in place for Northern Ireland.

574. The Society also believes that it is crucial that arrangements put in place for means testing do not infringe Article 6 (3) of the ECHR, nor lead to breaches of the "equality of arms" safeguards under the convention. The Society has concerns that there will be an increasing number of persons being either unrepresented or inadequately representing themselves at court. There is also the possibility of pressure being applied on some defendants to plead guilty to dispose of the proceedings as quickly as possible in order to avoid financial burden of contesting the charges.

575. The Law Society seeks clarification on the administrative arrangements for the means test as it is not convinced that the potential for savings will outweigh the likely delays and increased administration which will result. Where a decision is awaited on initial eligibility, the Society anticipates that there will be the potential for delays and adjournments will be sought. It also considers that as a result of an increasing number of unrepresented defendants appearing in the courts, there is the potential for significant additional judicial time having to be expended in dealing with those cases.

576. The Department outlined that clause 85 contains a new power to introduce a fixed means test for criminal legal aid. There is already a means test for criminal legal aid. If a judge considers that a defendant has insufficient means that will satisfy the means test. The power in clause 85 would allow the Department to set a specific income or assets limit to rule someone ineligible for legal aid.

577. The Department advised the Committee that consideration was being given to introducing a fixed means test for criminal legal as every part of the legal aid budget was being reviewed in an effort to reduce the Legal Aid bill to within the available budget.

578. The Department emphasised that, at this stage, it was looking at introducing an enabling power rather than the means test itself and believes that it is worthwhile to have the enabling power in place. It acknowledged that the points made by the Law Society and the Bar needed careful analysis but if a way to address a lot of the concerns satisfactorily is found the Department may wish to proceed to make further, more detailed proposals.

579. The Department pointed out that the final outcome of any proposal would be subject to subordinate legislation, which would be subject to a full equality impact assessment and scrutiny by the Justice Committee under negative resolution.

580. In response to questions from the Committee during oral evidence the Department clarified that if a fixed means test is put in place an applicant whose income is above the upper threshold would not be eligible for criminal legal aid and the judge will have no choice but to find that the means test has not been met even if, in the interests of justice, the judge felt otherwise. An applicant whose income is below the lower threshold would be granted legal aid if they were also able to pass the interests of justice test.

581. The Department also indicated, in response to a request for clarification on the legal implications of Article 6 of the ECHR, that its legal advisers had proofed the provisions and it was content that they are consistent with Article 6. The Department also indicated that the Attorney General had advised the Minister that the Bill is within competence.

582. On 20 January 2011 the Department briefed the Committee on the results of research commissioned into the impact of introducing a new means test for criminal legal aid. The research indicated that any significant savings could only be achieved by reductions in the eligibility rate of 10% or more. The Department ruled out the introduction of several of the options considered in the research as the impact would be too great but wished to consider some further sub-options and undertake more work on the cost assumptions.

Orders to recover costs of legal aid

583. Whilst recognising the financial constraints, Extern asserts the importance of the rights of individuals to justice and the importance of recovery of defence costs orders (RDCOs) being realistic and monitored. Extern has no evidence from its experience in delivering services that would indicate that this proposal would have a negative impact on any individual.

584. The Law Society states that the defendant's right to a fair trial must be paramount. The Society understands that these orders will initially apply only in respect of defendants at the Magistrates Court and welcomes this. The Society recommends that the application of the recovery of defence costs orders be closely scrutinised before their extension to the Crown Court.

585. The Department stated that this provision gives effect to the policy aspiration that resources should be targeted at those who need them most and that those who can afford to pay for their own defence should do so.

586. The introduction of RDCOs will allow the courts to recover costs from legally aided defendants where the court considers that the defendant has sufficient funds to pay for all, or a proportion of, the costs of his defence. The power would operate at the end of a trial, at which stage a judge could make such an order. The intent is that it would be used only in cases that are very clear — where the defendant very clearly has the money to pay for his own defence.

587. The clause provides an enabling power to introduce statutory rules to govern the operation of RDCOs. Initially, RDCOs would be restricted to grants of legal aid under the 1981 Order for cases in the Crown Court, though it may be extended to grants under the Criminal Appeal (Northern Ireland) Act 1980 for cases in the Court of Appeal at a later date.

588. In response to a request for clarification from the Committee during the oral evidence session regarding who would indicate an order to recover costs, the Department stated that the reasons for an order would be acquired by going to a court, so the reasons for seeking the order would be specified in the request. The Judge could initiate it at the end of the trial but the Department anticipates that, in most cases, the Legal Services Commission will do so as it is the body that will recover the cost and the money will then go back into the legal aid fund.

Assembly Scrutiny of Delegated Powers in Clauses 85 and 89

589. The Examiner of Statutory Rules in his scrutiny of the delegated powers contained in the Justice Bill highlighted that clause 85 (2) substitutes a new Article 31 of the Legal aid, Advice and Assistance (Northern Ireland) Order 1981 for the existing Article 31. The new Article 31 (1) and (2) contain new provisions enabling the Department of Justice to make rules, subject to negative resolution, for the determination by a court of the question of whether a person has insufficient means in respect of an application for legal aid in criminal proceedings. This is a new and distinct power (grafted onto the rather limited existing rule-making power in Article 36 of the 1981 Order).

590. It was the opinion of the Examiner that this is a particularly important power that merits thorough Assembly scrutiny, particularly as it relates to applications for legal aid in criminal proceedings and is an issue the Committee may wish to raise with the Department with a view to amending the clause to make the power subject to draft affirmative procedure.

591. Both the Law Society and the Bar Council are also of the view that the introduction of a fixed means test for criminal legal aid could have a major impact, particularly around access to justice, and should therefore be subject to the highest level of scrutiny possible.

592. The Examiner also indicated that clause 89(2) inserts a new Article 27A in the Access to Justice (Northern Ireland) Order 2003 in respect of financial eligibility for a grant of representation in criminal proceedings and clause 89(4) amends Article 46 of the Access to Justice Order to provide that the first regulations made under new Article 27A are subject to draft affirmative procedure, whereas subsequent regulations made under that Article are subject to negative resolution.

593. The Examiner stated that this formulation no doubt followed a precedent enacted in Westminster (probably as a pragmatic compromise in the interests of more limited parliamentary time there) and was of the view that it would be more logical and satisfactory that all regulations made under new Article 27A should be subject to the draft affirmative procedure. The Examiner suggested this was an issue that the Committee may wish to raise with the Department with a view to amending the clause to make all regulations subject to draft affirmative procedure.

Litigation Funding Agreements

594. In its written submission the Bar Council stated that its initial reaction to the proposal to permit the Legal Services Commission to provide services under Litigation Funding Agreements (LFAs) is that difficulties associated with LFAs e.g. risk of "cherry picking" cases with only the most difficult cases using the scheme, major issues in catastrophic/high value cases – is it appropriate that seriously injured persons use a proportion of their damages, perhaps required to provide care in the future, to fund other cases – etc may not have been fully thought out and that potential serious difficulties have not been identified. If these difficulties can be identified and overcome and the proposals lead to a greater availability of funds for money damage cases the Bar would certainly not be opposed to it. The Bar intended to continue to work with the Legal Services Commission on this issue.

595. In its oral evidence the Bar Council suggested that LFAs which would allow third parties – essentially insurance companies – to finance money damage cases would very much restrict access and the effect of that would be to prevent access to justice for victims who have claims that are entirely justified and for which they are entitled to compensation.

596. While not totally opposed to LFAs the Bar believes they need careful scrutiny and warn about what it could lead to in a small jurisdiction and whether we could get to the situation that exists in England and Wales where the costs of litigation became phenomenal. The Bar also questions whether the difficulties and practicalities of delivering LFAs are fully appreciated and whether, if the cost is so little at the moment, there is any need for it but does recognise that there are significant administrative costs involved.

597. The Law Society states that the removal of the prohibition on the NI Legal Services Commission funding legal services under litigation finding agreements is to be welcomed. The Commission consulted on a proposed Funding Code in June 2009. This code sets out the criteria for the determination of public funding for civil legal services. If implemented, the proposed criteria would have unduly restricted access to legal aid for those in need with legitimate claims for personal injury. This proposal would have jeopardised access to justice for vulnerable persons who had suffered the negligent actions of others. The Commission has listened to the Society's concerns and has been in discussion with the Society in relation to the development of alternative funding arrangements that could guarantee access to justice for those in need. The availability of litigation funding agreements should be of assistance in resolving this issue.

598. During oral evidence the Law Society confirmed that it was more accepting of LFAs than the position outlined by the Bar Council. The Law Society stated that there is a need to consider the administrative costs of civil claims in which money damages are pursued within the Legal Services Commission and is broadly in support of the principle of exploring alternatives to the current arrangements. The Law Society does not have an objection to this clause as it stands.

599. Extern supports the setting up of a Litigation Funding Agreement.

600. The Department outlined that clause 90 repeals Article 41 of the 2003 Order. Article 41 of the 2003 Order places a restriction on the NI Legal Services Commission from maintaining or establishing LFAs. This was because Government at the time did not propose to meet the costs of establishing or underwriting LFAs. However, the Commission has argued that Article 41 restricts its ability to consider fully the range of alternatives to the current funding of money damage cases. Current proposals to replace the merits test for civil legal aid with a "Funding Code" based on the England and Wales' model has the potential to reduce the number of people who can access legal aid for money damage cases. The repeal is necessary to allow the Legal Services Commission to put money into what is called a litigation funding agreement.

601. The Department highlighted that if Article 41 is repealed it does not automatically follow that LFAs will be introduced in NI or that they will be publicly administered. It indicated that the Legal Services Commission has been in discussion with the Law Society and the Bar Council in relation to the development of an alternative funding arrangement for handling money damages claims, which could provide an evidence base for the introduction of a statutory arrangement. Those discussions have identified a range of options and identified the key impediments to be resolved. Further meetings are scheduled to bring the discussions to a conclusion.

602. The Department stated that it will wish to consider closely the findings of the Review of Access to Justice in NI which will examine a range of options with regard to funding money damage cases. The Department also highlighted that it is not a case of having either money damages in legal aid or the LFA. There may well be other ways of doing this as well.

Non-molestation Orders and legal aid

603. The WSN, NIACRO and Women's Aid highlighted that in Northern Ireland, some women fleeing domestic violence situations and seeking legal remedies such as non molestation orders or occupation orders may have to meet financial eligibility criteria. However in England and Wales, women in domestic violence situations may not have to meet financial eligibility criteria in seeking such remedies. WSN believes that women suffering from domestic violence should not have to incur financial costs in order to keep themselves safe. WSN believes that this Justice Bill provides an ideal opportunity to remedy this situation and they support Women's Aid Federation's call for the amendment of current civil legal aid rules to ensure women in domestic violence situations have automatic right of access to justice. WSN believes that the Justice Bill could be amended to include an enabling power to amend civil legal aid rules and recommends the insertion of a clause which makes provision for an enabling power to address this issue.

604. In response, the Department pointed out that the Justice Bill does not contain any legal aid clauses on domestic violence. However, together with the Legal Services Commission it was examining the viability of introducing a waiver similar to that which operates in such cases in England and Wales.

605. The Department outlined that it was considering whether it can use an existing power to authorise the Commission to waive income and capital limits for non-molestation proceedings, rather than seek to make an amendment to regulations at this stage. While the income and capital limits would be waived the requirement to make a financial contribution would remain and the extent of the contribution would be dependent on the applicant's means.

606. On 22 December 2010, the Minister of Justice informed the Committee of his decision to make changes to civil legal aid to remove the income and capital limits attached to applications for those seeking to secure Non-Molestation Orders made in the Magistrates Court. The Minister pointed out that this will allow persons access to legal aid who in the past would not have been eligible for funding due to their financial status. As in England and Wales, a contribution from disposable income and capital would be required. The Minister also indicated that he would use his power under the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 to authorise the Legal Services Commission to disapply the current threshold for applications of those seeking to secure Non-Molestation Orders therefore an amendment to the Justice Bill was not necessary.

607. The Committee very much welcomed the action being taken by the Minister of Justice to address this issue.

Part 8: Miscellaneous

608. This part of the Bill contains miscellaneous provisions.

609. There were several issues raised on this Part of the Bill in both written and oral evidence. These included publication of material relating to legal proceedings; Assembly scrutiny of Magistrates' Court Rules; membership of Crown Court and Court of Judicature Rules Committees; witness summons; and criminal conviction certificates.

Publication of material relating to legal proceedings

610. Extern is of the view that the disclosure of information pertaining to family proceedings is rightly restricted. Any alteration to allow courts to set out special times when disclosure might be allowed seems appropriate if robust rule setting is implemented and the safety of all is maintained.

611. The Law Society is not opposed to the proposed rule making powers relating to the publication of material relating to legal proceedings, however, it would highlight that at the core of such rules must be the overriding principle that the interests of children are paramount.

612. In response, the Department advised that clause 95 creates the power to allow court rules to be made to specify the circumstances in which information on family proceedings concerning children can be shared without the need for the express permission of the court. For example, it will allow a parent to discuss a case about a child with an elected representative or with a professional adviser such as the Children's Commissioner. At present, such a conversation could potentially be a criminal offence or a contempt of court. The purpose of clause 95 is to make it easier for information on family proceedings concerning children to be shared in certain circumstances. Clause 95 is an enabling power only, and any court rules that are made will be subject to full public consultation to ensure that they are in the best interests of children in Northern Ireland.

Assembly Scrutiny of Magistrates' Court Rules

613. The Committee noted that clauses 95 and 99 contain provision in respect of Magistrates' Courts Rules.

614. In response to questions from the Committee, the Department clarified that the family proceedings rules that will apply in the High Court and the County Court will be subject to negative resolution. However, the rules that will apply in the Magistrates Court will be made in accordance with the Magistrates' Courts rules procedures and are not subject to any formal scrutiny in the Assembly. The Department did indicate that the Committee would be fully consulted on the proposed rules.

615. The Committee sought further information on the background and rationale for the Magistrates' Court Rules not being subject to any Assembly procedure and for the rule-making power to be vested in the Rules Committee.

616. The Assembly Examiner of Statutory Rules outlined that Rules of the Court of Judicature (High Court and Court of Appeal in civil proceedings), Criminal Appeal Rules (Court of Appeal in criminal proceedings), Crown Court Rules (Crown Court — criminal proceedings) and Family Proceedings Rules (High Court and county courts — most family proceedings) are subject to negative resolution. County Court Rules (county courts — general civil proceedings) and Magistrates' Courts Rules (magistrates' courts — general criminal and civil proceedings) are subject to no Assembly procedure (although they can of course be scrutinised by the Committee for Justice).

617. The Examiner expressed the view that this difference in the scrutiny accorded (or not accorded) to different court rules probably has more to do with historical origins rather than logic or principle. By way of comparison — in contrast to the position in England and Wales, in Scotland court rules seem, in general, to be subject to no procedure in the Scottish Parliament, again probably for historical reasons and perhaps also for constitutional reasons peculiar to Scotland arising from the central role of Scotland's most senior judge, the Lord President of the Court of Session/Lord Justice General — as the Lord President is styled (since 1836 at least, when the two judicial offices were merged) in relation to the High Court of Justiciary, the superior jurisdiction in criminal proceedings in Scotland. But court rules in Scotland are made as Scottish Statutory Instruments and are scrutinised as such (as regards technical scrutiny) by the Subordinate Legislation Committee of the Scottish Parliament.

618. The Examiner pointed out that any change in the position in Northern Ireland to make County Court Rules and Magistrates' Courts Rules subject to negative resolution would require amendments (in primary legislation) of the relevant provisions of the County Courts (Northern Ireland) Order 1980 and the Magistrates' Courts (Northern Ireland) Order 1981. In his opinion, from the brief historical and comparative survey, such a change would seem to be perfectly logical and consistent. Accordingly, it would not seem to be subject to any major objection in principle; nor would it seem to be unduly complicated and was an issue the Committee may wish to explore further with the Department of Justice, whether in terms of this Bill or for the future.

Membership of Crown Court and Court of Judicature Rules Committees

619. The Bar Council welcomed the expansion of members of the Crown Court Rules Committee and the Court of Judicature Rules Committee which will add to the value and expertise provided by these Committees.

620. The Law Society has no objection to the proposal to include within the membership of the Crown Court Rules Committee, a public prosecutor nominated by the Director of the Public Prosecution Service for Northern Ireland.

621. Extern is of the view that the nomination of a person bringing added knowledge and expertise to the Crown Court Rules Committee seems appropriate.

622. The Committee sought clarification of the status of the person nominated by the Attorney General as the terminology appeared to be less specific than the manner used to specify other members.

623. The Department advised that clauses 96 and 97 make adjustments to the membership of the Crown Court Rules Committee and the Court of Judicature Rules Committee and are designed to enhance the expertise that is available to those committees. The committees make the rules that govern the practice and procedure that should be followed in the Crown Court and the High Court respectively. Membership of those committees is prescribed in statute and includes the Lord Chief Justice, certain members of the judiciary and solicitor and barrister representatives.

624. The Department undertook to consider further the wording relating to 'a person nominated by the Attorney General'.

Witness summons

625. The Bar Council welcomes the provisions of clause 99, which provides for appropriate third party summonses and disclosure in the Magistrates Court on a par with the Crown Court.

626. MindWise recommends that when the witness is a juvenile and vulnerable by virtue of age or a vulnerable person by reason of mental health regardless of age they should be supported and assisted by a trained advocate.

627. The Department indicated that clause 99 contains a provision that will expand the powers of Magistrate's Courts in criminal proceedings to allow them to issue a witness summons to direct a third party to appear and produce any item of evidence where the court is satisfied that that person is able to provide material evidence. At present, the powers of the Magistrate's Court are limited to occasions when such an item would be admissible in evidence.

628. This amendment will bring the powers of the Magistrate's Court into line with those of the Crown Court and as a result, the Department hopes that more cases that are capable of being dealt with by the Magistrate's Court will remain there rather than defendants choosing to be tried in the Crown Court to avail themselves of its wider third-party disclosure powers.

629. In response to the concerns expressed by MindWise, the Department highlighted that any young or vulnerable witness attending court is already eligible for help through special measures. The changes within the Bill will be procedural changes to allow better access to material held by third parties – the same assistance would be available to a witness under what is called a third party summons, just as it would be under any other type of summons. The Committee was content with this explanation.

Criminal conviction certificates

630. NIACRO understands that if any employer or voluntary organisation requests an Access NI Standard or Enhanced Disclosure certificate, they are duty bound to comply with the Access NI Code of Practice in handling and assessing information safely and fairly. For Basic Disclosure certificates, while the employer is entitled to have sight of the information, they are not subject to the Code. NIACRO suggests that the proposed change to legislation at clause 100 does little to alter this process. Employers will continue to have access to basic disclosure information regarding an applicant, without being subject to regulation. NIACRO believes that there is a very real danger that employers will choose not to follow Access NI Code of Practice (as they are not duty bound to do so with basic disclosure information) and use the information to openly discriminate against a candidate who has a conviction.

631. NIACRO has a great deal of evidence that employers discriminate against people with a conviction. Employers are more likely to request disclosure information when it is not appropriate to do so and if they are provided with this, use it to discriminate. NIACRO wants legislators to deal with the wider issues surrounding an employer's right to request criminal conviction information and wishes to see legislation that both protects the public and allows people with a conviction to seek suitable employment.

632. Extern sees value in the issuing of a basic disclosure provided the employer is named in the application.

633. The Department clarified that clause 100 enables AccessNI to issue a copy of a criminal conviction certificate to an employer when the application is for employment purposes. At the moment, AccessNI is authorised to issue only one copy of the certificate, which normally goes to the applicant but can go to the employer. Very often, both want a copy, so the clause will allow two copies to be issued at the same time by AccessNI. It makes things more convenient and speeds up the process. The change will mean that Northern Ireland will be the only jurisdiction in the United Kingdom to provide that service.

Part 9: Supplementary Provisions

634. This part of the Bill contains the supplementary provisions including powers to make regulations.

635. The Committee did not receive or raise any comments in relation to this part of the Bill.

New Provisions to be introduced into the Bill by the Department of Justice

636. At a relatively late stage during the Committee Stage of the Justice Bill, the Department advised the Committee of its intention to introduce a number of new provisions into the Bill by way of amendments at Consideration Stage. These included provisions in relation to assets recovery law, sex offender notification, funds in court legislation and solicitors' rights of audience.

637. In the limited time available the Committee received written and oral evidence from the Department on the proposed new provisions and, briefly considered their merits. In relation to the proposed provisions on solicitors' rights of audience the Committee also received written evidence from the Law Society and the Bar Council and took oral evidence from the Law Society.

Assets recovery law

638. The Department proposes a new provision to be inserted into Part 8 of the Bill. This is necessary following amendments to the Proceeds of Crime Act 2002 (POCA) and the Administration of Justice (Northern Ireland) Act 1954 by the Northern Ireland Act 1998 (Devolution of Policing and Justice Functions) Order 2010. Following devolution there is no longer authority for the proceeds from criminal confiscation orders imposed under POCA to be paid to the Home Office. Instead, the receipts of criminal confiscation orders are now remitted to the Northern Ireland Consolidated Fund (NICF).

639. The Department of Finance and Personnel (DFP) is engaged with Her Majesty's Treasury (HMT) to agree arrangements whereby the Department of Justice may draw upon the proceeds of criminal confiscation receipts to the NICF up to a limit, in line with limits agreed for England, Wales and Scotland. Primary legislation is required to give the Department of Justice the authority to make payments from funds remitted to the NICF. The Department of Justice was notified in December 2010 by DFP that primary legislation was required and therefore the provision was not included in the Bill as drafted for introduction to the Assembly.

640. The proposed new provision will give the Department the power, with the consent of DFP, to allocate the proceeds of criminal assets remitted to the NICF by Northern Ireland Courts to prevent crime and reduce the fear of crime and to support the recovery of criminal assets. Allocation of receipts will bring additional funding to the Department.

641. The Department proposes the insertion of a new clause to give the Department the power to allocate criminal assets up to a limit to be agreed by DFP and HMT. This new clause would be inserted after clause 94. A textual amendment would also be required at clause 107.

642. The Committee welcomed these new provisions, noting that this would provide a new funding stream for the Department, and agreed to support their inclusion.

643. The text of the proposed amendments is:

After clause 94 insert -

'Power of Department of Justice to make payments in relation to prevention of crime, etc

'94A. - (1) The Department of Justice may, with the consent of the Department of Finance and Personnel, make such payments or grants to such persons as the Department of Justice considers appropriate in connection with measures intended to -

(a) prevent crime or reduce the fear of crime; or

(b) support the recovery of criminal assets and proceeds of crime.

(2) A grant under subsection (1) may be made on such conditions as the Department of Justice may, with the consent of the Department of Finance and Personnel, determine.'

Clause 107, page 62, line 7, at end add 'or (Power of Department of Justice to make payments in relation to prevention of crime, etc)'

Sex offender notification

644. The Department proposed a new provision to be inserted into Part 5 of the Bill which deals with treatment of offenders. Prior to the introduction of the Justice Bill, a legal challenge to the Sexual Offences Act 2003 resulted in a Supreme Court ruling that the indefinite notification requirements attached to sex offenders who have been sentenced to 30 months or more imprisonment were incompatible with Article 8 of the European Convention on Human Rights (ECHR). As a result all UK jurisdictions are under an obligation to remedy the legislative incompatibility as it applies to their own jurisdiction.

645. The Department briefed the Committee on a legislative amendment which would provide for a review mechanism which could be accessed by sex offenders who have completed 15 years of notification. The provisions of the amendment will allow an offender to apply to the police seeking a review of the notification requirements after a period of 15 years (8 years if under 18 at the time of conviction) from the date the offender is released from prison following sentence for the relevant offence.

646. A new clause to be inserted after clause 59 will deal with the review of indefinite notification requirements for sexual offences. A new Schedule will also be inserted after Schedule 3 of the Bill.

647. The Committee considered the proposed new clause and attendant Schedule. The Committee noted that these provisions are required due to a Supreme Court ruling and that other jurisdictions must make similar provisions. Given the necessity for them, the Committee will support the inclusion of the new clause and Schedule as drafted by the Department.

648. The text of the proposed amendments are:

After clause 59 insert -

Sexual offences: review of indefinite notification requirements

.-(1) The Sexual Offences Act 2003 (c.42) is amended as follows.

(2) In section 82 (the notification period) at the end insert -

"(7) Schedule 3A (which provides for the review and discharge of indefinite notification requirements) has effect."

(3) After Schedule 3 insert the following Schedule -

"SCHEDULE 3A
REVIEW OF INDEFINITE NOTIFICATION REQUIREMENTS

Introductory

1.- (1) This Schedule applies to a person who, on or after the date on which section (Sexual offences: review of indefinite notification requirements) of the Justice Act (Northern Ireland) 2011 comes into operation, is subject to the notification requirements for an indefinite period.

(2) A person to whom this Schedule applies is referred to in this Schedule as "an offender".

(3) In this Schedule -

"sexual harm" means physical or psychological harm caused by an offender doing anything which would constitute an offence listed in Schedule 3 if done in any part of the United Kingdom;

"the notification requirements" means the notification requirements of Part 2 of this Act;

"relevant event", in relation to an offender, is a conviction, finding or notification order which made the offender subject to the notification requirements for an indefinite period.

Initial review: applications

2. -(1) Except as provided by sub-paragraph (2), an offender may, at any time after the end of the initial review period, apply to the Chief Constable to discharge the offender from the notification requirements.

(2) Sub-paragraph (1) does not apply at any time when—

(a) the offender is also subject to a sexual offences prevention order; or

(b) the offender is also subject to the notification requirements for a fixed period which has not expired.

(3) Subject to sub-paragraph (4), the initial review period is -

(a) in the case of an offender under the age of 18 at the date of the relevant event, 8 years beginning with the date of initial notification;

(b) in the case of any other offender, 15 years beginning with the date of initial notification.

(4) In calculating the initial review period-

(a) in a case where an offender is subject to the notification requirements for an indefinite period as a result of two or more relevant events, the calculation to be made by reference to the later or latest of those events;

(b) in any case, there is to be disregarded any period during which the offender is, in connection with a relevant event -

(i) remanded in, or committed to, custody by an order of a court;

(ii) in custody serving a sentence of imprisonment or detention; or

(iii) detained in a hospital.

(5) The date of initial notification is -

(a) in the case of an offender who is subject to the notification requirements for an indefinite period by virtue of section 81, the date by which the offender was required to give notification under section 2(1) of the Sex Offenders Act 1997;

(b) in the case of any other offender, the date by which the offender is required to give notification under section 83(1) (or would be so required but for the fact that the offender falls within an exception in section 83 (2) or (4) of that section).

(6) An application under this paragraph must be in writing and must include -

(a) the name, address and date of birth of the offender;

(b) the name and address of the offender at the date of each relevant event (if different);

(c) the date of each relevant event, and (where a relevant event is a conviction or finding) the court by or before which, the conviction or finding occurred,

(d) any information which the offender wishes to be taken into account by the Chief Constable in determining the application.

(7) The Chief Constable may, before determining any application, request information from any body or person which the Chief Constable considers appropriate.

Initial review: determination of application

3. - (1) On an application under paragraph 2 the Chief Constable shall discharge the notification requirements unless the Chief Constable is satisfied, on the balance of probabilities, that the offender poses a risk of sexual harm to the public, or any particular members of the public, in the United Kingdom.

(2) In deciding whether that is the case, the Chief Constable must take into account—

(a) the seriousness of the offence or offences—

(i) of which the offender was convicted,

(ii) of which the offender was found not guilty by reason of insanity,

(iii) in respect of which the offender was found to be under a disability and to have done the act charged, or

(iv) in respect of which (being relevant offences within the meaning of section 99) the notification order was made, which made the offender subject to the notification requirements for an indefinite period;

(b) the period of time which has elapsed since the offender committed the offence or offences;

(c) whether the offender has committed any offence under section 3 of the Sex Offenders Act 1997 or under section 91 of this Act;

(e) the age of the offender at the time of the decision;

(f) the age of the offender at the time any offence referred to in paragraph (a) was committed;

(g) the age of any person who was a victim of any such offence (where applicable) and the difference in age between the victim and the offender at the time any such offence was committed;

(h) any convictions or findings made by a court in respect of the offender for any other offence listed in Schedule 3;

(i) any caution which the offender has received for an offence which is listed in Schedule 3;

(j) whether any criminal proceedings for any offences listed in Schedule 3 have been instituted against the offender but have not concluded;

(k) any assessment of the risk posed by the offender which has been made by any of the agencies mentioned in Article 49(1) of the Criminal Justice (Northern Ireland) Order 2008 (risk assessment and management);

(l) any other information relating to the risk of sexual harm posed by the offender to the public, or any particular members of the public, in the United Kingdom;

(m) any information presented by or on behalf of the offender which demonstrates that the offender does not pose a risk of sexual harm to the public, or any particular members of the public, in the United Kingdom; and

(n) any other matter which the Chief Constable considers to be appropriate.

(3) The functions of the Chief Constable under this paragraph may not be delegated by the Chief Constable except to a police officer not below the rank of superintendent.

Initial review: notice of decision

4. - (1) The Chief Constable must, within 12 weeks of the date on which an application under paragraph 2 is received, comply with this paragraph.

(2) If the Chief Constable discharges the notification requirements -

(a) the Chief Constable must serve notice of that fact on the offender, and

(b) the offender ceases to be subject to the notification requirements on the date of service of the notice.

(3) If the Chief Constable decides not to discharge the notification requirements -

(a) the Chief Constable must serve notice of that decision on the offender; and

(b) the notice must -

(i) state the reasons for the decision; and

(ii) inform the offender of the effect of paragraphs 5 and 6.

Initial review: application to Crown Court

5. - (1) Where -

(a) the Chief Constable fails to comply with paragraph 4 within the period specified in paragraph 4(1), or

(b) the Chief Constable serves a notice under paragraph 4(3), the offender may apply to the Crown Court for an order discharging the offender from the notification requirements.

(2) An application under this paragraph must be made within the period of 21 days beginning -

(a) in the case of an application under sub-paragraph (1)(a), on the expiry of the period mentioned in paragraph 4(1);

(b) in the case of an application under sub-paragraph (1)(b), on the date of service of the notice under paragraph 4(3).

(3) Paragraph 3 applies in relation to an application under this paragraph as it applies to an application under paragraph 2, but as if references to the Chief Constable were references to the Crown Court.

(4) The Chief Constable and the offender may appear or be represented at any hearing in respect of an application under this paragraph.

(5) Where an application under this paragraph is determined, the appropriate officer of the Crown Court must send a copy of the order made by the Crown Court to the offender and the Chief Constable.

Further reviews

6. -(1) Where a notice is served on an offender under paragraph 4(3) or 5(5), the offender may, at any time after the end of a further review period, apply to the Chief Constable to discharge the offender from the notification requirements.

(2) A further review period is the period of 5 years beginning on the date of service of a notice (or the last notice) served on the offender under paragraph 4(3) or 5(5).

(3) Paragraphs 2(6) and (7), 3, 4 and 5 apply with appropriate modifications to an application under this paragraph as they apply to an application under paragraph 2(1); and a reference in this Schedule to a provision of paragraph 4 or 5 includes a reference to that provision as applied by this sub-paragraph.

Discharge in Scotland

7. - (1) An offender who is, under corresponding legislation, discharged from the notification requirements by a court, person or body in Scotland is, by virtue of the discharge, also discharged from the notification requirements as they apply in Northern Ireland.

(2) In subsection (1) "corresponding legislation" means legislation which makes provision corresponding to that made by this Schedule for a an offender who is subject to the notification requirements as they apply in Scotland for an indefinite period to be discharged from those notification requirements.

Funds in court legislation

649. The Department proposed an amendment to the Bill to make provisions relating to funds in court - specifically to allow a court to give the Accountant General a specific power to deduct (with the approval of the court) certain fees, charged by stockbrokers in relation to the management and investment of funds held in court, from those funds.

650. The Department worked with the Attorney General in developing these provisions and resolution of some issues meant that the provisions were not able to be included in the Bill as drafted for introduction to the Assembly.

651. In certain circumstances the County Court or High Court may order that monies are paid into court to be placed under that court's protective jurisdiction, for instance where a minor has been awarded money in damages or where a person is deemed to no longer have sufficient mental capacity to manage his/her financial affairs. Where such funds are ordered to be paid into court, the money is paid over to the Accountant General of the Court of Judicature who, under the Judicature (Northern Ireland) Act 1978 ('the 1978 Act'), has responsibility for managing and investing such funds in court in Northern Ireland.

652. The Director of the Northern Ireland Courts and Tribunals Service acts as Accountant General and his functions are exercised by the Court Funds Office (CFO) which is an office within NICTS. The CFO manages funds in court until they are paid out (e.g. when a minor reaches the age of 18). There is approximately £260million of funds held in court on behalf of 14,000 clients.

653. As part of the management of funds in court, and in order to provide an appropriate level of return, the funds may be invested (with judicial approval) in various ways prescribed in the 1978 Act, including being placed in deposit accounts, short and long term investment accounts and investment in certain designated securities such as equities or government bonds. For investment in securities, the CFO retains the services of a stockbroker to provide advice as regards the most appropriate investments for all new funds and to review existing investments. Where the stockbroker makes investment recommendations, these are presented to the court and the court makes an appropriate order directing the investment of the funds.

654. The stockbrokers charge an annual management fee for their services. Until recently these fees were deducted directly from the funds of those clients whose funds were subject to management by the brokers. Legal advice however now suggests that there is a doubt as to whether it is permissible to deduct stockbroker management charges directly from funds in court without an express legislative power to do so.

655. In order to obtain legal clarity, the High Court will be invited to make a declaration on this issue. Should the High Court find that there is sufficient authority to deduct the fees directly from the funds of CFO clients, it is anticipated that the CFO will revert to such practice. However should the High Court rule that there is no current authority, then an amendment to the 1978 Act would be required to authorise deduction of stockbrokers' fees. The Department considers that it is prudent to use the Justice Bill to put such legislative provisions in place prior to the outcome of the High Court application.

656. The Committee was advised by the Department that should the High Court rule that previous deductions were unlawful, then NICTS may be obliged to consider reimbursing those clients. Approximately £2.5million was deducted from clients between 1996 and 2010, attributable to over 4,000 clients.

657. The amendment would amend section 81 of the Judicature (Northern Ireland) Act 1978 to create a specific power to allow the court to order the payment from court funds of any fees or expenses incurred in connection with or for the purposes of investing those funds, however the court shall not make such an order unless considered necessary.

658. The Committee expressed significant concerns about the budgetary implications for the Department should the High Court rule that previous deductions were unlawful. The Committee also noted that the Department had not consulted on the new provision.

659. The Committee agreed that the principle of using a stockbroker to provide advice on the most appropriate investments and to review existing investments is of benefit to clients and that the cost should be met by those who avail of those services rather than from the public purse. The Committee is therefore content to support the proposed amendment.

660. The proposed amendment is:

Funds in court: investment fees or expenses [j8178]

*- (1) Section 81 of the Judicature (Northern Ireland) Act 1978 (c. 23) (investment of funds in court) is amended as follows.

(2) The existing provision becomes subsection (1) of that section.

(3) After that subsection insert-

"(2) If the High Court or (as the case may be) the county court so orders, the power of the Accountant General under subsection (1)(a)(iii) or (iv) to invest a sum of money in the Court of Judicature or the county court in securities includes the power to pay out of that sum any fees or expenses which are -

(a) incurred in connection with, or for the purposes of, investing that sum; and

(b) of an amount or at a rate approved by the High Court or (as the case may be) the county court.

(3) A court shall not make an order under subsection (2) unless the court considers it necessary and proportionate in all the circumstances to do so.

(4) The High Court or (as the case may be) the county court may, on an application made to it, order that all or part of any sum paid by way of fees or expenses under subsection (2) be refunded where it appears to the court to be in the interests of justice to do so."

Consequential amendments

The Judicature (Northern Ireland) Act 1978 (c. 23)

In section 82(1) (rules as to funds in court)-

(a) in paragraphs (c) and (d) for "81(b)(ii)" substitute "81(1)(b)(ii)"; and

(b) in paragraph (k) for "81(a)(iv)" substitute "81(1)(a)(iv)".

Solicitors' rights of audience

661. The Department proposed new provisions relating to solicitors' rights of audience to be inserted into Part 8 of the Bill. Resolution of some issues meant that the provisions were not able to be included in the Bill as drafted for introduction to the Assembly.

662. Presently, solicitors in Northern Ireland enjoy unlimited rights of audience in the Crown Court, County Courts, Magistrates' Courts and Tribunals. There are however restrictions on solicitors appearing in the High Court and the Court of Appeal where effectively they may only appear in an insolvency matter in chambers or where counsel is unavailable.

663. In light of recommendations in the Bain Report on the Regulation of Legal Services in Northern Ireland (November 2006), the Department proposes to extend solicitors' rights of audience in the High Court and Court of Appeal with the aim of giving the public a wider choice in legal representation and enhancing the provision of legal services in Northern Ireland.

664. The proposed new clauses contain provision to create a system of authorisation by the Law Society for solicitors wishing to exercise rights of audience in the High Court and Court of Appeal and require the Law Society to make regulations setting the education, training or experience requirements which a solicitor must meet before authorisation can be granted. The clauses contain a range of safeguards to ensure that competition of advocacy services is maintained and conflicts of interest prevented. Again, the Law Society is required to make regulations setting out the detail of the advice which a solicitor must provide to their client.

665. The Minister had previously indicated to the Committee his intention to bring forth new provisions on solicitors' rights of audience. The Committee did not however receive the detail of the precise content and text of the proposed new clauses until 28 January 2011 and, given the Committee Stage of the Bill was due to end on 11 February, had a very limited opportunity to consider the detailed proposals.

666. The Law Society also commented on the insufficiency of time given to consider the text of the proposed new clauses. The Law Society has been pressing for the introduction of solicitors' rights of audience in the Higher Courts for some time and fully supports the policy and the principle behind these provisions. However it did express a number of concerns in correspondence and in oral evidence to the Committee regarding the clauses as drafted. The Society sought clarity on terms used in the clauses; regarded some provisions as unnecessary as they duplicate existing practice; questioned the requirement to consult with the Attorney General; and expressed significant concerns in relation to the provisions which will engage the Department of Justice in the regulation of the profession which the Law Society regards as a significant departure and wholly inappropriate.

667. The Bar Council submitted written evidence which the Committee did not receive in time to give proper consideration to but did note that the Bar had strong reservations about the introduction of these provisions.

668. While content with the general principle of affording the public a wider choice of legal representation, the Committee did not have sufficient time to reach a view on the detail of each proposed new clause.

669. The proposed amendment is:

New Clause

After clause 91 insert -

PART 8
SOLICITORS' RIGHTS OF AUDIENCE

Authorisation of Society conferring additional rights of audience

*.- (1) The Solicitors (Northern Ireland) Order 1976 (NI 12) is amended as follows.

(2) In Article 6 (regulations as to the education, training, etc. of persons seeking admission or having been admitted as solicitors) after paragraph (1) insert -

"(1A) The Society shall make regulations with respect to the education, training or experience to be undergone by solicitors seeking authorisation under Article 9A."

(3) After Article 9 insert -

Authorisation of Society conferring additional rights of audience

9A. - (1) A person who is qualified to act as a solicitor may apply to the Society for an authorisation under this Article.

(2) An application under paragraph (1) -

(a) shall be made in such manner as may be prescribed;

(b) shall be accompanied by such information as the Society may reasonably require for the purpose of determining the application; and

(c) shall be accompanied by such fee (if any) as may be prescribed.

(3) At any time after receiving the application and before determining it the Society may require the applicant to provide it with further information.

(4) The Society shall grant an authorisation under this Article if it appears to the Society, from the information furnished by the applicant and any other information it may have, that the applicant has complied with the requirements applicable to him by virtue of regulations under Article 6(1A).

(5) An authorisation granted to a person under this Article ceases to have effect if, and for so long as, that person is not qualified to act as a solicitor.

(6) The Society may by regulations provide that any person who has completed such education, training or experience as may be prescribed, before such date as may be prescribed shall be taken to hold an authorisation granted under this Article."

(4) In Article 10 (practising certificates and register of practising solicitors) after paragraph (2C) insert -

"(2D) Every entry in the register shall include details of any authorisation granted under Article 9A to the solicitor to whom the entry relates."

New Clause

After clause 91 insert –

Rights of audience of solicitors

* - (1) In section 106 of the Judicature (Northern Ireland) Act 1978 (rights of audience in the High Court and Court of Appeal) after subsection (3) insert -

"(3A) A solicitor who holds an authorisation under Article 9A of the Solicitors (Northern Ireland) Order 1976) shall have the same right of audience in any proceedings in the High Court or Court of Appeal as counsel in those courts and any such right is in addition to any right of audience which a solicitor would have apart from this subsection."

(2) After Article 40 of the Solicitors (Northern Ireland) Order 1976 (NI 12) insert -

Duty to advise client as to representation in court

40A. - (1) Paragraph (2) applies where -

(a) it appears to a solicitor that a client requires, or is likely to require, legal representation in any proceedings in the High Court or the Court of Appeal;

(b) either—

(i) that solicitor is minded to arrange for another solicitor who is an authorised solicitor to provide that representation; or

(ii) that solicitor is an authorised solicitor and is minded to provide that representation; and

(c) in representing that client in the High Court or Court of Appeal, a solicitor would need to exercise the right of audience conferred by section 106(3A) of the Judicature (Northern Ireland) Act 1978.

(2) The solicitor shall advise the client in writing -

(a) of the advantages and disadvantages of representation by an authorised solicitor and by counsel, respectively; and

(b) that the decision as to whether an authorised solicitor or counsel is to represent the client is entirely that of the client.

(3) The Society shall make regulations with respect to the giving of advice under paragraph (2).

(4) A solicitor shall -

(a) in advising a client under paragraph (2), act in the best interest of the client; and

(b) give effect to any decision of the client referred to in paragraph (2)(b).

(5) For the purposes of this Article compliance with paragraph (2) in relation to any proceedings in a court in any cause or matter is to be taken to be compliance with that paragraph in relation to any other proceedings in that court in the same cause or matter.

(6) If a solicitor contravenes this Article, any person may make a complaint in respect of the contravention to the Tribunal.

(7) In this Article and Article 40B "authorised solicitor" means a solicitor who holds an authorisation under Article 9A.

Duty to inform court as to compliance with Article 40A(2)

40B. - (1) Where -

(a) a solicitor has complied with Article 40A(2) in relation to the representation of a client in any proceedings in the High Court or Court of Appeal;

(b) that client is to be represented in those proceedings by an authorised solicitor; and

(c) in representing that client in those proceedings the authorised solicitor would need to exercise the right of audience conferred by section 106(3A) of the Judicature (Northern Ireland) Act 1978, the solicitor shall inform the High Court or (as the case may be) the Court of Appeal of the fact mentioned in sub-paragraph (a) in such manner and before such time as rules of court may require.

(2) For the purposes of this Article compliance with paragraph (1) in relation to any proceedings in a court in any cause or matter is to be taken to be compliance with that paragraph in relation to any other proceedings in that court in the same cause or matter.

(3) If a solicitor contravenes paragraph (1), any person may make a complaint in respect of the contravention to the Tribunal."

(3) In Article 50 of the County Courts (Northern Ireland) Order 1980 (NI 3) (rights of audience) in paragraph (1)(c) omit the words ", but not a solicitor retained as an advocate by a solicitor so acting".

New clause

After clause 91 insert -

Consequential and supplementary provisions

*.- (1) In Article 75 (regulations) of the Solicitors (Northern Ireland) Order 1976 (NI 12) after paragraph (2) insert -

"(2A) Regulations under Article 6(1A), 9A(6) or 40A(3) also require the concurrence of the Department of Justice, given after consultation with the Attorney General.

(2B) The Department of Justice shall not grant its concurrence to any regulations under Article 6(1A) or 9A(6) unless regulations have been made under Article 40A(3) and are in operation."

(2) The Department may by order make such amendments to -

(a) the Criminal Appeal (Northern Ireland) Act 1980;

(b) the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981;

(c) the Access to Justice (Northern Ireland) Order 2003;

(d) section 184 of the Extradition Act 2003, as appear to the Department to be necessary or expedient in consequence of, or for giving full effect to, the provisions of this Part.'

Schedule 7, page 87, at end insert—

PART 4
SOLICITORS' RIGHTS OF AUDIENCE

Short Title Extent of repeal
The County Courts (Northern Ireland) Order 1980 (NI 3). In Article 50(1) (c), the words ", but not a solicitor retained as an advocate by a solicitor so acting".

Clause by Clause Consideration of the Bill

670. The Committee conducted its clause-by-clause scrutiny of the Bill on 20 January, 1 February, 3 February and 8 February 2011 – see Minutes of Evidence in Appendix 2. The Committee recommended a number of amendments which are outlined below.

Part 1 – Victims and Witnesses

Clause 1 – Offender levy imposed by court

671. The Committee agreed that it was content with clause 1 as drafted.

Clause 2 – Enforcement and treatment of offender levy imposed by court

672. The Committee agreed that it was content with clause 2 as drafted.

Clause 3 – Deduction of offender levy imposed by court from prisoner's earnings

673. The Committee agreed that it was content with clause 3 as drafted.

Clause 4 – Offender levy imposed by court: other supplementary provisions

674. The Committee agreed that it was content with clause 4 as drafted.

Clause 5 – Offender levy on certain penalties

675. The Committee agreed that it was content with clause 5 as drafted.

Clause 6 – Amount of the offender levy

676. The Committee agreed that it was content with clause 6 as drafted.

Clause 7 – Eligibility for special measures: age of child witnesses

677. The Committee agreed that it was content with clause 7 as drafted.

Clause 8 – Special measures: directions for child witnesses

678. The Committee agreed that it was content with clause 8 as drafted.

Clause 9 – Special provisions relating to sexual offences

679. The Committee agreed that it was content with clause 9 as drafted.

Clause 10 – Evidence by live link: presence of supporter

680. The Committee agreed that it was content with clause 10 as drafted.

Clause 11 – Video recorded evidence in chief: supplementary testimony

681. The Committee agreed that it was content with clause 11 as drafted.

Clause 12 – Examination of accused through intermediary

682. The Committee agreed that it was content with clause 12 as drafted.

Clause 13 – Age of child complainant

683. The Committee agreed that it was content with clause 13 as drafted.

Part 2 – Live Links

Clause 14 – Live links for patients detained in hospital

684. The Committee agreed that it was content with clause 14 as drafted.

Clause 15 – Live links at preliminary hearings in the High Court

685. The Committee agreed that it was content with clause 15 as drafted.

Clause 16 – Live links at preliminary hearing on appeals to the county court

686. The Committee agreed that it was content with clause 16 subject to the amendment proposed by the Department to set out what happens when a live link breaks down as follows:

Insert at end of clause 16, page 12, line 5 –

"(8A) If the court proceeds with the hearing under paragraph (8) it shall not remand the appellant in custody for a period exceeding 8 days commencing on the day following that on which it remands him".

Clause 17 – Live link in sentencing hearing on appeals to the county court

687. The Committee agreed that it was content with clause 17 as drafted.

Clause 18 – Live links in the Court of Appeal

688. The Committee agreed that it was content with clause 18 as drafted.

Clause 19 – Live link direction for vulnerable accused

689. The Committee agreed that it was content with clause 19 as drafted.

Clause 20 – Establishment of PCSPs and DPCSPs

690. The Committee agreed that it was content with clause 20 as drafted.

Clause 21 – Functions of PCSP

691. The Committee agreed that it was content with clause 21 subject to the amendment recommended by the Committee and agreed by the Department to include reference to the full consideration of the views of the public as follows:

Insert at end of clause 21, page 17, line 26 -

'to consider fully any views so obtained'

Clause 22 – Functions of DPCSP

692. The Committee agreed that it was content with clause 22 subject to the amendment recommended by the Committee and agreed by the Department to include reference to the full consideration of the views of the public as follows:

Insert at end of clause 22, page 18, line 21 -

'and to consider fully any views so obtained'

Clause 23 – Code of practice for PCSPs and DPCSPs

693. The Committee agreed that it was content with clause 23 as drafted.

Clause 24 – Annual report by PCSP to council

694. The Committee agreed that it was content with clause 24 as drafted.

Clause 25 – Annual report by Belfast PCSP to council

695. The Committee agreed that it was content with clause 25 as drafted.

Clause 26 – Annual report by DPCSPs to principal PCSP

696. The Committee agreed that it was content with clause 26 as drafted.

Clause 27 – Reports by PCSP to joint committee

697. The Committee agreed that it was content with clause 27 as drafted.

Clause 28 – Reports by Belfast PCSP to joint committee

698. The Committee agreed that it was content with clause 28 as drafted.

Clause 29 – Reports by DPCSP to principal PCSP

699. The Committee agreed that it was content with clause 29 as drafted.

Clause 30 – Reports by policing committees to Policing Board

700. The Committee agreed that it was content with clause 30 as drafted.

Clause 31 – Reports by policing committee of Belfast PCSP to Policing Board

701. The Committee agreed that it was content with clause 31 as drafted.

Clause 32 – Reports by policing committee of DPCSP to policing committee of principal PCSP

702. The Committee agreed that it was content with clause 32 as drafted.

Clause 33 – Other community policing arrangements

703. The Committee agreed that it was content with clause 33 as drafted.

Clause 34 – Duty on public bodies to consider community safety implications in exercising duties

704. The Committee agreed that it was not content with clause 34 and would oppose the question that clause 34 stand part of the Bill.

Clause 35 – Functions of joint committee and Policing Board

705. The Committee agreed that it was content with clause 35 as drafted.

Clause 36 – Regulated matches

706. The Committee agreed that it was content with clause 36 subject to the amendment proposed by the Department in response to concerns raised by the Committee to reduce the time period around which powers would be applied to regulated matches from "two hours before/one hour after" to "one hour before/thirty minutes after" as follows:

Clause 36 , page 25, line 26, leave out paragraph (c)

Clause 36, page 25, line 32, leave out from 'two hours before' to end of line and insert 'one hour before the start of the match or (if earlier) one hour'

Clause 36, page 25, line 34, leave out 'one hour' and insert '30 minutes'

Clause 36, page 25, line 38, leave out 'two hours' and insert 'one hour'

Clause 36, page 25, line 39, leave out 'one hour' and insert '30 minutes'.

Clause 37 – Throwing of missiles

707. The Committee agreed that it was content with clause 37 subject to the amendment recommended by the Committee and agreed by the Department to provide greater clarity around missile throwing and focus more on those items likely to cause injury as follows:

Clause 37, page 26, line 8, leave out 'anything' and insert 'any object to which this subsection applies'

Clause 37, page 26, line 13, at end insert –

'(1A) Subsection (1) applies to any object which, if thrown as mentioned in that subsection, would be likely to cause injury to any person who may be struck by the object.'

Clause 38 – Chanting

708. The Committee agreed that it was content with clause 38 subject to the amendment recommended by the Committee and agreed by the Department to include sectarianism as follows:

Clause 38, page 26, line 22, leave out 'an' and insert 'a sectarian or'

Clause 38, page 26, line 25, leave out 'religious belief'

Clause 38, page 26, line 26, at end insert –

'(3A) For the purposes of this section chanting is of a sectarian nature if it consists of or includes matter which is threatening, abusive or insulting to a person by reason of that person's religious belief or political opinion or against an individual as a member of such a group.'

Clause 39 – Going onto the playing area

709. The Committee agreed that it was content with clause 39 as drafted.

Clause 40 – Possession of fireworks, flares, etc.

710. The Committee agreed that it was content with clause 40 as drafted.

Clause 41 – Being drunk at a regulated match

711. The Committee agreed that it was not content with clause 41 and would oppose the question that clause 41 stand part of the Bill.

Clause 42 – Possession of drink containers, etc.

712. The Committee agreed that it was not content with clause 42 and would oppose the question that clause 42 stand part of the Bill.

Clause 43 – Possession of alcohol

713. The Committee agreed that it was not content with clause 43 and would oppose the question that clause 43 stand part of the Bill.

Clause 44 – Offences in connection with alcohol on vehicles

714. The Committee agreed that it was content with clause 44 subject to the amendments proposed by the Department in response to concerns raised by the Committee to remove the offence of being drunk on specified vehicles entirely and remove restrictions on alcohol on vehicles travelling away from a game as follows:

Clause 44, page 28, line 32, leave out 'or from'

Clause 44, page 29, line 6, leave out subsection (5)

Clause 44, page 29, line 15, leave out paragraph (c).

Clause 45 – Sales of tickets by unauthorised persons

715. The Committee agreed that it was not content with clause 45 and would oppose the question that clause 45 stand part of the Bill.

Clause 46 – Banning orders: making on conviction

716. The Committee agreed that it was content with clause 46 as drafted.

Clause 47 – Banning orders: content

717. The Committee agreed that it was content with clause 47 as drafted.

Clause 48 – Banning orders: supplementary

718. The Committee agreed that it was content with clause 48 as drafted.

Clause 49 – Banning orders: "violence" and "disorder"

719. The Committee agreed that it was content with clause 49 subject to the amendment proposed by the Committee and agreed by the Department to include sectarianism as follows:

Clause 49, page 33, line 6, after 'up' insert 'sectarian hatred or'

Clause 49, page 33, line 8, leave out 'religious belief'

Clause 49, page 33, line 14, leave out subsection (3) and insert –

'(3) For the purposes of this section sectarian hatred is hatred against a group of persons defined by reference to religious belief or political opinion'.

Clause 50 – Banning orders: duration

720. The Committee agreed that it was content with clause 50 as drafted.

Clause 51 – Banning orders: additional requirements

721. The Committee agreed that it was content with clause 51 as drafted.

Clause 52 – Termination of banning orders

722. The Committee agreed that it was content with clause 52 as drafted.

Clause 53 – Information about banning orders

723. The Committee agreed that it was content with clause 53 as drafted.

Clause 54 – Failure to comply with banning order

724. The Committee agreed that it was content with clause 54 as drafted.

Clause 55 – Powers of enforcement

725. The Committee agreed that it was content with clause 55 as drafted.

Clause 56 – Increase in maximum terms of imprisonment for common assault or battery

726. The Committee agreed that it was content with clause 56 as drafted.

Clause 57 – Penalty for certain knife offences

727. The Committee agreed that it was content with clause 57 as drafted.

Clause 58 – Extension of maximum period of deferment of sentence

728. The Committee agreed that it was content with clause 58 as drafted.

Clause 59 – Breach of licence conditions by sex offenders

729. The Committee agreed that it was content with clause 59 as drafted.

Clause 60 – Sexual offences: closure orders

730. The Committee agreed that it was content with clause 60 as drafted.

Clause 61 – Financial reporting orders

731. The Committee agreed that it was content with clause 61 as drafted.

Clause 62 – Dangerous offenders: serious and specified offences

732. The Committee agreed that it was content with clause 62 as drafted.

Clause 63 – Supervised activity order in respect of certain financial penalties

733. The Committee agreed that it was content with clause 63 as drafted.

Clause 64 – Penalty offences and penalties

734. The Committee agreed that it was content with clause 64 as drafted.

Clause 65 – Penalty notices

735. The Committee agreed that it was content with clause 65 as drafted.

Clause 66 – Form of penalty notice

736. The Committee agreed that it was content with clause 66 as drafted.

Clause 67 – Effect of penalty notice

737. The Committee agreed that it was content with clause 67 as drafted.

Clause 68 – General restriction on prosecution

738. The Committee agreed that it was content with clause 68 as drafted.

Clause 69 - Guidance

739. The Committee agreed that it was content with clause 69 as drafted.

Clause 70 – Payment of penalty

740. The Committee agreed that it was content with clause 70 as drafted.

Clause 71 – Registration certificates

741. The Committee agreed that it was content with clause 71 as drafted.

Clause 72 – Registration of penalty

742. The Committee agreed that it was content with clause 72 as drafted.

Clause 73 – Challenge to notice

743. The Committee agreed that it was content with clause 73 as drafted.

Clause 74 – Setting aside of sum enforceable under section 72

744. The Committee agreed that it was content with clause 74 as drafted.

Clause 75 – Interpretation of this Chapter

745. The Committee agreed that it was content with clause 75 as drafted.

Clause 76 – Conditional cautions

746. The Committee agreed that it was content with clause 76 as drafted.

Clause 77 – The five requirements

747. The Committee agreed that it was content with clause 77 as drafted.

Clause 78 – Variation of conditions

748. The Committee agreed that it was content with clause 78 as drafted.

Clause 79 – Failure to comply with conditions

749. The Committee agreed that it was content with clause 79 as drafted.

Clause 80 – Arrest for failure to comply

750. The Committee agreed that it was content with clause 80 as drafted.

Clause 81 – Application of PACE conditions

751. The Committee agreed that it was content with clause 81 as drafted.

Clause 82 – Code of practice

752. The Committee agreed that it was content with clause 82 subject to the amendment to clause 103 recommended by the Committee and agreed by the Department to provide that the order which brings the Code of Practice into operation must be laid before the Assembly and approved by affirmative resolution.

Clause 83 – Powers of Probation Board

753. The Committee agreed that it was content with clause 83 as drafted.

Clause 84 – Interpretation of this Chapter

754. The Committee agreed that it was content with clause 84 as drafted.

Clause 85 – Eligibility for criminal legal aid

755. The Committee agreed that it was content with clause 85 subject to the amendment proposed by the Department in response to concerns raised by the Committee to provide for an affirmative procedure when the rules in this clause are being considered for the first time as follows:

Clause 85, page 49, line 34, at end insert-

'(4) In Article 36 (rules as to legal aid in criminal cases for paragraph (4) substitute-

"(4) Except as provided by paragraph (5), rules under this Article are subject to negative resolution.

(5) The rules to which paragraph (6) applies shall not be made unless a draft of the rules has been laid before and approved by a resolution of the Assembly.

(6) This paragraph applies to the first rules under this Article which are-

(a) made after the coming into operation of section 85 of the Justice Act (Northern Ireland ) 2011;

and

(b) contain any provision made by virtue of Article 31, as substituted by that section".'

Clause 86 – Order to recover costs of legal aid

756. The Committee agreed that it was content with clause 86 as drafted.

Clause 87 – Eligibility of persons in receipt of guarantee credit

757. The Committee agreed that it was content with clause 87 as drafted.

Clause 88 – Legal aid for certain bail applications

758. The Committee agreed that it was content with clause 88 as drafted.

Clause 89 – Financial eligibility for grant of right to representation

759. The Committee agreed that it was content with clause 89 as drafted.

Clause 90 – Litigation funding agreements

760. The Committee agreed that it was content with clause 90 as drafted.

Clause 91 – Civil legal services: scope

761. The Committee agreed that it was content with clause 91 as drafted.

Clause 92 – Bail: compassionate grounds

762. The Committee agreed that it was content with clause 92 as drafted.

Clause 93 – Bail: repeat application

763. The Committee agreed that it was content with clause 93 as drafted.

Clause 94 – Possession of offensive weapon with intent to commit an offence

764. The Committee agreed that it was content with clause 94 as drafted.

Clause 95 – Publication of material relating to legal proceedings

765. The Committee agreed that it was content with clause 95 as drafted.

Clause 96 – Membership of Crown Court Rules Committee

766. The Committee agreed that it was content with clause 96 subject to the amendment recommended by the Committee and agreed by the Department to specify that the Attorney General's nominee shall be a practicing member of the Bar or a practising solicitor as follows:

Clause 96, page 54, line 39, after 'Committee' insert 'in paragraph (g) for "one other" substitute "a"'

Clause 96, page 55, line 1, leave out 'person' and insert 'practising member of the Bar of Northern Ireland or a practising solicitor'.

Clause 97 – Membership of Court of Judicature Rules Committee

767. The Committee agreed that it was content with clause 97 subject to the amendment recommended by the Committee and agreed by the Department to specify that the Attorney General's nominee shall be a practising member of the Bar or a practising solicitor as follows:

Clause 97, page 55, line 5, after 'Committee' insert 'in paragraph (d) for "one other" substitute "a" '

Clause 97, page 55, line 7, leave out 'person' and insert 'practicing member of the Bar of Northern Ireland or a practising solicitor'

Clause 97, page 55, line 12, leave out 'person' and insert 'barrister or solicitor'.

Clause 98 – Appeals from Crown Court: Proceeds of Crime Act 2002

768. The Committee agreed that it was content with clause 98 as drafted.

Clause 99 – Witness summons in magistrates' court

769. The Committee agreed that it was content with clause 99 as drafted.

Clause 100 – Criminal conviction certificates to be given to employers

770. The Committee agreed that it was content with clause 100 as drafted.

Clause 101 – Accounts of the Law Commission

771. The Committee agreed that it was content with clause 101 as drafted.

Clause 102 – Supplementary, incidental, consequential and transitional provision, etc.

772. The Committee agreed that it was content with clause 102 as drafted.

Clause 103 – Regulations and orders

773. The Committee agreed that it was content with clause 103 subject to the amendment recommended by the Committee and agreed by the Department to provide that the Order in clause 82 which brings the Code of Practice into operation must be laid before the Assembly and approved by affirmative resolution as follows:

Clause 103, page 61, line 18, leave out 'and' and insert 'to'

Clause 103, page 61, line 23, at end insert –

'3(A) No order may be made –

(a) under section 82 (5)

unless a draft of the order has been laid before and approved by a resolution of the Assembly.'

Clause 104 – Interpretation

774. The Committee agreed that it was content with clause 104 as drafted.

Clause 105 – Transitional provisions and savings

775. The Committee agreed that it was content with clause 105 as drafted.

Clause 106 – Minor and consequential amendments and repeals

776. The Committee agreed that it w as content with clause 106 as drafted.

Clause 107 – Commencement

777. The Committee agreed that it was content with clause 107 as drafted.

Clause 108 – Short title

778. The Committee agreed that it was content with clause 108 as drafted.

Schedule 1 – Policing and Community Safety Partnerships

Schedule 1, Paragraphs 1 to 3

779. The Committee agreed that it was content with Schedule 1, Paragraphs 1 to 3 as drafted.

Schedule 1, Paragraph 4

780. The Committee agreed that it was content with Schedule 1, Paragraph 4 subject to the amendment proposed by the Department in response to concerns raised by the Committee to give the councils scope to pay expenses to all members of PCSPs who do not receive them from their own organisation as follows:

Schedule 1, page 70, line 19, at end insert –

'Expenses

16A. The council may pay to members of a PCSP such expenses as the council may determine.'

Schedule 1, Paragraphs 5 and 6

781. The Committee agreed that it was content with Schedule 1, Paragraphs 5 and 6 as drafted.

Schedule 1, Paragraph 7

782. The Committee agreed that it was content with Schedule 1, Paragraph 7 subject to the following Committee amendment that allows for a list of specified organisations for inclusion on every PCSP to be made by affirmative resolution:

Schedule 1, page 66, line 4, at end insert—

'(2A) The Department may by order designate organisations for the purposes of this paragraph.

(2B) No order may be made under sub-paragraph (2A) unless—

(a) the Department has consulted each PCSP; and

(b) a draft of the order has been laid before and approved by a resolution of the Assembly.'

Schedule 1, page 66, line 5, after 'PCSP' insert 'or by an order under sub-paragraph (2A)'.

Schedule 1, Paragraphs 8 and 9

783. The Committee agreed that it was content with Schedule 1, Paragraphs 8 and 9 as drafted.

Schedule 1, Paragraph 10

784. The Committee agreed that it was content with Schedule 1, Paragraph 10 subject to the following Committee amendment that provides for the appointment of the Chairs and Vice Chairs of the PCSPs in the same manner as the appointment of the Chair and Vice Chair of the Policing Committee:

Schedule 1, page 68, line 4, leave out sub-paragraphs 10 (4) and (5) and insert:-

'10.—(4) At any time thereafter, there shall be—

(a) a chair appointed by the council from among the political members; and

(b) a vice-chair elected by the independent members from among such members.

(5) In appointing to the office of chair, the council shall ensure that, so far as is practicable—

(a) a person is appointed to that office for a term of 12 months at a time or, where that period is shorter than 18 months, for a period ending with the reconstitution date next following that person's appointment;

(b) that office is held in turn by each of the four largest parties represented on the council immediately after the last local general election.'

Schedule 1, Paragraphs 11 to 16

785. The Committee agreed that it was content with Schedule 1, Paragraphs 11 to 16 as drafted.

Schedule 1, Paragraph 17

786. The Committee agreed that it was content with Schedule 1, Paragraph 17 subject to the following amendment proposed by the Department to clarify the means of funding for PCSPs as follows:

Schedule 1, page 70, line 21, leave out paragraph 17 and insert -

'17.—(1)The Department and the Policing Board shall for each financial year make to the council grants of such amounts as the joint committee may determine for defraying or contributing towards the expenses of the council in that year in connection with PCSPs.

(2) A grant made by the Department or the Policing Board under this paragraph—

(a) shall be paid at such time, or in instalments of such amounts and at such times, and

(b) shall be made on such conditions,

as the joint committee may determine.

(3) A time determined under sub-paragraph (2)(a) may fall within or after the financial year concerned.'

Schedule 1, Paragraphs 18 to 21

787. The Committee agreed that it was content with Schedule 1, Paragraphs 18 to 21 as drafted.

Schedule 2 – District Policing and Community Safety Partnerships

Schedule 2, Paragraphs 1 to 3

788. The Committee agreed that it was content with Schedule 2, Paragraphs 1 to 3 as drafted.

Schedule 2, Paragraph 4

789. The Committee agreed that it was content with Schedule 2, Paragraph 4 subject to the amendment proposed by the Department in response to concerns raised by the Committee to give the councils scope to pay expenses to all members of PCSPs who do not receive them from their own organisation as follows:

Schedule 2, page 79, line 21, at end insert –

'Expenses

16A. The council may pay to members of a DPCSP such expenses as the council may determine'.

Schedule 2, Paragraphs 5 and 6

790. The Committee agreed that it was content with Schedule 2, Paragraphs 5 and 6 as drafted.

Schedule 2, Paragraph 7

791. The Committee agreed that it was content with Schedule 2, Paragraph 7 subject to the following Committee amendment that allows for a list of specified organisations for inclusion on every PCSP to be made by affirmative resolution:

Schedule 2, page 74, line 36, at end insert—

'(2A) The Department may by order designate organisations for the purposes of this paragraph.

(2B) No order may be made under sub-paragraph (2A) unless—

(a) the Department has consulted each DPCSP; and

(b) a draft of the order has been laid before and approved by a resolution of the Assembly.'

Schedule 2, page 74, line 37, after 'DPCSP' insert 'or by an order under sub-paragraph (2A)'

Schedule 2, Paragraphs 8 and 9

792. The Committee agreed that it was content with Schedule 2, Paragraphs 8 and 9 as drafted.

Schedule 2, Paragraph 10

793. The Committee agreed that it was content with Schedule 2, Paragraph 10 subject to the following Committee amendment that provides for the appointment of the Chair and Vice Chair of the DPCSPs in the same manner as the appointment of the Chair and Vice Chair of the Policing Committee:

Schedule 2, page 76, line 35, leave out sub-paragraphs 10 (4) and (5) and insert:-

'10.—(4) At any time thereafter, there shall be—

(a) a chair appointed by the council from among the political members; and

(b) a vice-chair elected by the independent members from among such members.

(5) In appointing to the office of chair, the council shall ensure that, so far as is practicable—

(a) a person is appointed to that office for a term of 12 months at a time or, where that period is shorter than 18 months, for a period ending with the reconstitution date next following that person's appointment;

(b) that office is held in turn by each of the four largest parties represented on the council immediately after the last local general election.'

Schedule 2, Paragraphs 11 to 16

794. The Committee agreed that it was content with Schedule 2, Paragraphs 11 to 16 as drafted.

Schedule 2, Paragraph 17

795. The Committee agreed that it was content with Schedule 2, Paragraph 17 subject to the following amendment proposed by the Department to clarify the means of funding for DPCSPs as follows:

Schedule 2, page 79, line 23, leave out paragraph 17 and insert—

'17.—(1) The Department and the Policing Board shall for each financial year make to the council grants of such amounts as the joint committee may determine for defraying or contributing towards the expenses of the council in that year in connection with DPCSPs.

(2) A grant made by the Department or the Policing Board under this paragraph—

(a) shall be paid at such time, or in instalments of such amounts and at such times, and

(b) shall be made on such conditions,

as the joint committee may determine.

(3) A time determined under sub-paragraph (2)(a) may fall within or after the financial year concerned.'

Schedule 2, Paragraphs 18 and 19

796. The Committee agreed that it was content with Schedule 2, Paragraphs 18 and 19 as drafted.

Schedule 3 – Regulated matches

797. The Committee agreed that it was content with Schedule 3 subject to the amendment proposed by the Department in response to concerns raised by the Committee so that the provisions only apply to matches played at designated grounds as follows:

Schedule 3, page 81, line 7, leave out from 'or' to end of line 9

Schedule 3, page 81, line 19, leave out from 'or' to end of line 21.

Schedule 4 – Penalty offences and penalties

798. The Committee agreed that it was content with Schedule 4 as drafted.

Schedule 5 – Transitional and saving provisions

799. The Committee agreed that it was content with Schedule 5 as drafted.

Schedule 6 – Minor and consequential amendments

800. The Committee agreed that it was content with Schedule 6 as drafted.

Schedule 7 - Repeals

801. The Committee agreed that it was content with Schedule 7 as drafted.

Long title

802. The Committee agreed the Long Title of the Bill.

Appendix 1

Minutes of Proceedings
of the Committee
Relating to the Report

Appendix 1 - Minutes of Proceedings

  • 21 October 2010
  • 18 November 2010
  • 25 November 2010
  • 2 December 2010
  • 9 December 2010
  • 16 December 2010
  • 11 January 2011
  • 13 January 2011
  • 18 January 2011
  • 20 January 2011
  • 25 January 2011
  • 27 January 2011
  • 1 February 2011
  • 3 February 2011
  • 8 February 2011
  • 10 February 2011

Thursday 21 October 2010
Senate Chamber, Parliament Buildings

Present: Lord Morrow MLA (Chairman)
Mr Raymond McCartney MLA (Deputy Chairman)
Lord Browne MLA
Mr Tom Elliott MLA
Mr Paul Givan MLA
Mr Alban Maginness MLA
Mr Conall McDevitt MLA
Mr John O'Dowd MLA

In Attendance: Mrs Christine Darrah (Assembly Clerk)
Mr Vincent Gribbin (Assistant Assembly Clerk)
Mrs Roisin Donnelly (Assistant Assembly Clerk)
Mr Joe Westland (Clerical Supervisor)
Mr Kevin Marks (Clerical Officer)

Apologies: Mr Thomas Buchanan MLA
Ms Carál Ní Chuilín MLA

2.05 pm The meeting commenced in public session.

4. Briefing by Departmental officials on the Justice Bill

2.21pm Gareth Johnston, Deputy Director of Justice Strategy Division, Tom Haire, Head of Criminal Law Branch and Bill Manager for the Justice Bill, John Halliday, Criminal Legal Aid Policy Advisor and Laurene McAlpine, Head of Civil Policy and Legislation Division joined the meeting.

The officials briefed the Committee on the principles and content of the Justice Bill and outlined a number of proposals that had not been included in the Bill and some proposals that had adjusted prior to its introduction.

A question and answer session followed which covered issues such as legislative competence, the proposals to confer rights of audience on solicitor advocates in the higher courts which was not included in the Bill, the sports provisions and fixed penalty notices.

2.29pm Mr Elliott left the meeting.

The evidence session was recorded by Hansard.

The Chairman thanked the officials for the briefing and they left the meeting.

5. Proposals for Committee Stage of the Justice Bill

The Committee considered proposals for its handling of the Committee Stage of the Justice (Northern Ireland) Bill.

Agreed: The Committee agreed a list of key stakeholders and a letter that would issue immediately seeking evidence on the Justice Bill with a closing date for submissions of 17 November 2010.

Agreed: The Committee agreed a format for oral evidence sessions on the Justice Bill.

Agreed: The Committee agreed that the proposed visit to the Young Offenders Centre at Hydebank should go ahead as planned and scrutiny of the Bill should begin on 18 November.

Thursday 18 November 2010
Room 29, Parliament Buildings

Present: Lord Morrow MLA (Chairman)
Lord Browne MLA
Mr Thomas Buchanan MLA
Sir Reg Empey MLA
Mr Paul Givan MLA
Mr Alban Maginness MLA
Mr Conall McDevitt MLA
Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

In Attendance: Mrs Christine Darrah (Assembly Clerk)
Mrs Roisin Donnelly (Assistant Assembly Clerk)
Mr Vincent Gribbin (Assistant Assembly Clerk)
Mr Joe Westland (Clerical Supervisor)
Mr Kevin Marks (Clerical Officer)

Apologies: Mr Raymond McCartney MLA (Deputy Chairman)

2.03pm The meeting commenced in public session.

4. The Justice Bill – Oral evidence sessions

The Committee considered proposals for which organisations will be called to give oral evidence sessions on the Justice Bill on 25 November and 2 December 2010.

Agreed: The Committee agreed the proposed arrangements for oral evidence sessions.

Agreed: The Committee agreed to provide relevant information on the Sports clauses to the Committee for Culture, Arts and Leisure and to grant the extension requested.

Briefing by Department of Justice Officials on Clauses 36 to 55 and Schedule 3 of the Justice Bill

2.38pm Gareth Johnston, Deputy Director of Justice Strategy Division, Tom Haire, Justice Bill Manager, David Mercer, Criminal Law Branch and Ciaran Mee, an official from the Department of Culture, Arts and Leisure joined the meeting.

The officials briefed the Committee on the intent and content of clauses 36 to 55 and Schedule 3 of the Sports Bill relating to Sports Law and answered questions from Members on the throwing of missiles; the sale of tickets by unauthorised persons; drinking and being drunk at regulated matches; and banning orders.

The Chairman thanked the officials for the briefing.

The evidence session was recorded by Hansard.

Briefing by Sport NI on the Justice Bill

3.10pm Nick Harkness, Director of Participation and Facilities, and Paul Scott, Manager of the Facilities Unit joined the meeting.

The representatives briefed the Committee on SportNI's comments on the Sports Law clauses of the Justice Bill and answered questions from Members on issues such as the rationale and necessity for the sport law clauses; the impact of similar legislation in England and Wales; the definition of an offensive weapon; and the controlled sale and consumption of alcohol at regulated matches.

The Chairman thanked the representatives for the briefing.

The evidence session was recorded by Hansard.

Briefing by Ulster Rugby and Ulster Rugby Supporters Club on the Justice Bill

3.43pm Lindsey Irwin, Senior Manager, External Relations, Ulster Rugby, Ian Cambell, Chair of Ulster Rugby Supporters Club, Robin Cole, Senior Manager, External Relations, Ulster Rugby, and Joe Eagleson, Past Honorary Secretary, IRFU Ulster Branch joined the meeting.

The representatives briefed the Committee on Ulster Rugby and Ulster Rugby Supporters Club's comments on the Sports Law clauses, and in particular clause 43, of the Justice Bill and answered questions from Members on issues such as an exemption from the sale of alcohol clauses; the comparisons with England and Wales legislation; and the current arrangements for dealing with disruption at Rugby grounds.

The Chairman thanked the representatives for the briefing.

The evidence session was recorded by Hansard.

Briefing by Ulster GAA on the Justice Bill

4.13pm Danny Murphy, Provincial Director, Ryan Feeney, Head of Public Affairs and Stephen McGeehan, Head of Operations joined the meeting.

The representatives briefed the Committee on Ulster GAA's comments on the Sports Law clauses of the Justice Bill and answered questions from Members on issues such as what constitutes a regulated match; the requirements arising from the Safety of Sports Grounds legislation; and the ability to enforce the legislation.

4.23 pm Mr McDevitt left the meeting

The Chairman thanked the representatives for the briefing.

The evidence session was recorded by Hansard.

Briefing by Irish Football Association (IFA) on the Justice Bill

4.43pm Patrick Nelson, Chief Executive, Terry Pateman, Vice President, Hugh Wade, Director and Stephen Grange, National Security Officer joined the meeting.

The representatives briefed the Committee on the Irish Football Association's comments on the Sports Law clauses of the Justice Bill and answered questions from Members on issues such as the stewarding of matches; the necessity of the sports legislation; and the role of the legislation in altering the behavior of individuals attending matches.

The Chairman thanked the representatives for the briefing.

The evidence session was recorded by Hansard.

Briefing by the Amalgamation of Official Northern Ireland Supporters Clubs (AONISC) on the Justice Bill

5.15pm Gary McAlister and Chris Andrews, from the Northern Ireland Supporters Clubs joined the meeting.

The representatives briefed the Committee on AONISC's comments on the Sports Law clauses of the Justice Bill and answered questions from Members on issues such as the necessity of the legislation; the consumption of alcohol in viewing facilities; the possession of alcohol on private hire transport; and ticket touting.

The Chairman thanked the representatives for the briefing.

The evidence session was recorded by Hansard.

Response by Department of Justice officials on the issues raised by the sporting organisations

5.45pm Gareth Johnston, Deputy Director of Justice Strategy Division, Tom Haire, Justice Bill Manager, David Mercer, Criminal Law Branch and Ciaran Mee, an official from the Department of Culture, Arts and Leisure returned to the table.

The Departmental officials responded to the issues raised by the sporting organisations on the sports clauses.

6.02 pm Mr McNarry left the meeting

The Chairman thanked the officials for the briefing and they left the meeting.

The evidence session was recorded by Hansard.

Agreed: The Committee agreed to discuss the written and oral evidence on the sports clauses at the meeting on 2 December.

Thursday 25 November 2010
Senate Chamber, Parliament Buildings

Present: Lord Morrow MLA (Chairman)
Mr Raymond McCartney MLA (Deputy Chairman)
Lord Browne MLA
Mr Thomas Buchanan MLA
Sir Reg Empey MLA
Mr Paul Givan MLA
Mr Alban Maginness MLA
Mr Conall McDevitt MLA
Mr David McNarry MLA
Mr John O'Dowd MLA

In Attendance: Mrs Christine Darrah (Assembly Clerk)
Mrs Roisin Donnelly (Assistant Assembly Clerk)
Mr Vincent Gribbin (Assistant Assembly Clerk)
Mr Joe Westland (Clerical Supervisor)
Mr Kevin Marks (Clerical Officer)

Apologies: Ms Carál Ní Chuilín MLA

2.04pm The meeting commenced in public session.

5. The Justice Bill – Oral Evidence Sessions

The Committee noted the tight timescale for the Committee Stage of the Justice Bill and considered a proposal for an extension of time.

Agreed: The Committee agreed a motion, extending the Committee Stage of the Justice Bill (NIA Bill 1/10) until Friday 11 February 2010, for a Plenary Session in the near future.

2.50 pm Mr Maginness left the meeting.

The Committee noted the large number of submissions from District Policing Partnerships, Community Safety Partnerships and Local Councils in relation to the Policing and Community Safety Partnerships (PCSPs) aspect of the Justice Bill and considered options for the handling of oral sessions on this issue.

Agreed: The Committee agreed that the date for taking oral evidence on the PCSPs should be 16 December with the oral evidence sessions on Alternatives to Justice and the Treatment of Offenders moved to 9 December.

Agreed: The Committee agreed to hold a formal evidence event in the Long Gallery on 16 December 2010 on the PCSPs Clauses, to which all relevant organisations would be invited to attend.

Briefing by Departmental Officials on clauses 1 to 19 of the Justice Bill

2.50pm Gareth Johnston, Deputy Director of Justice Strategy Division, Tom Haire, Justice Bill Manager, Janice Smiley, Head of Criminal Policy Unit and Chris Mathews, Head of Sentencing Delivery and European Unit, joined the meeting.

The officials briefed the Committee on the intent and content of clauses 1 to 19 of the Justice Bill on Special Measures for Vulnerable and Intimidated Witnesses and Live Links and answered questions from Members on the compliance of the Offender Levy with European Union legislation.

The Chairman thanked the officials for the briefing.

The evidence session was recorded by Hansard.

Briefing by Victim Support NI

3.18pm Susan Reid, Chief Executive and Geraldine Hanna, Operations Manager joined the meeting.

The representatives briefed the Committee on Victim Support NI's views on the Special Measures for Vulnerable and Intimidated Witnesses clauses of the Justice Bill and answered questions from Members on issues such as how to ensure that victims and witnesses give the best evidence possible and the use of the Offender Levy for additional funding for victims services.

The Chairman thanked the representatives for the briefing.

The evidence session was recorded by Hansard.

Briefing by MindWise

3.40pm Bill Halliday, Chief Executive, Anne Doherty, Deputy Chief Executive, Stanley Booth, Appropriate Adult Scheme Manager and Laura McKay, Appropriate Adult Scheme Deputy Manager joined the meeting.

The representatives briefed the Committee on MindWise's views on the Special Measures for Vulnerable and Intimidated Witnesses clauses and Live Links clausesof the Justice Bill and answered questions from Members on issues such as the treatment of vulnerable adults in police custody; the role and training of Intermediaries and the ability of employers to make reasonable adjustments to employ those convicted of specific offences.

The Chairman thanked the representatives for the briefing.

The evidence session was recorded by Hansard.

Response by Department of Justice officials on the issues raised by the organisations

4.11pm Gareth Johnston, Deputy Director of Justice Strategy Division, Tom Haire, Justice Bill Manager, Janice Smiley, Head of Criminal Policy Unit and Chris Mathews, Head of Sentencing Delivery and European Unit returned to the table.

The Departmental officials responded to the issues raised by the organisations on the Special Measures for Vulnerable and Intimidated Witnesses and Live Links clauses.

The Chairman thanked the officials for the briefing and they left the meeting.

The evidence session was recorded by Hansard.

Agreed: The Committee agreed to discuss the written and oral evidence on the Special Measures for Vulnerable and Intimidated Witnesses and Live Links clauses at the meeting on 9 December 2010.

Thursday 2 December 2010
Senate Chamber, Parliament Buildings

Present: Lord Morrow MLA (Chairman)
Mr Raymond McCartney MLA (Deputy Chairman)
Lord Browne MLA
Mr Thomas Buchanan MLA
Sir Reg Empey MLA
Mr Paul Givan MLA
Mr Alban Maginness MLA
Mr Conall McDevitt MLA
Mr David McNarry MLA
Mr John O'Dowd MLA

In Attendance: Mrs Christine Darrah (Assembly Clerk)
Mrs Roisin Donnelly (Assistant Assembly Clerk)
Mr Joe Westland (Clerical Supervisor)
Mr Kevin Marks (Clerical Officer)

2.06pm The meeting commenced in public session.

5. The Justice Bill – Oral Evidence Sessions

Briefing by Department of Justice Officials on Part 7 - Legal Aid etc, Part 8 - Miscellaneous and Part 9 - Supplementary Provisions of the Justice Bill

2.57pm Gareth Johnston, Deputy Director of Justice Strategy Division, Robert Crawford, Head of Public Legal Services Division, Geraldine Fee, Head of Criminal Policy and Legislation Division and Laurene McAlpine, Head of Civil Policy and Legislation Division joined the meeting.

The Departmental officials briefed the Committee on the Legal Aid, Miscellaneous and Supplementary Provisions clauses of the Bill and the intent of the clauses and answered questions from Members.

The Chairman thanked the officials for the briefing.

The evidence session was recorded by Hansard.

Briefing by the General Council of the Bar of Northern Ireland

3.22pm Adrian Colton QC, Chairman of the Bar Council, Dermot Fee QC Member of the Bar Council and Brendan Garland, Chief Executive joined the meeting.

The representatives briefed the Committee on the Bar Council's view on the Legal Aid, Miscellaneous and Supplementary Provisions Clauses of the Bill and answered questions from Members on issues such as achieving a balance between the need to reduce costs of Legal Aid and maintain access to justice; the proposed means test for criminal legal aid; recovery of defense cost orders; and litigation funding agreements.

The Chairman thanked the representatives for the briefing.

The evidence session was recorded by Hansard.

3.50 pm Mr Thomas Buchanan left the meeting.

Briefing by Women's Aid Federation Northern Ireland

3.50pm Gillian Clifford, Regional Policy and Information Coordinator for Women's Aid Federation NI, Patricia Lyness, Management Coordinator for Belfast and Lisburn Women's Aid, Noelle Collins, Team Leader, Belfast and Lisburn Women's Aid, Sonya Lutton, Deputy Helpline Manager joined the meeting.

The representatives briefed the Committee on Women's Aid Federation's views on the Legal Aid clauses of the Justice Bill and answered questions from Members on issues such as the potential adverse impact of non-eligibility for legal aid on victims of domestic violence, particularly in relation to non-molestation orders, and a proposal for automatic entitlement to access legal aid for victims of domestic violence.

The Chairman thanked the representatives for the briefing.

The evidence session was recorded by Hansard.

Briefing by the Law Society of Northern Ireland

4.10pm Brian Speers, President of the Law Society, Norville Connolly, Senior Vice President and Alan Hunter, Chief Executive joined the meeting.

The representatives briefed the Committee on the Law Society's views on the Legal Aid, Miscellaneous and Supplementary Provisions clauses of the Justice Bill and the need for the solicitor advocacy clauses to be reintroduced into the Bill and answered Members questions on issues such as the proposed means test for criminal legal aid; the training and accreditation requirements for Solicitor Advocates; and the need for an impact assessment in relation to the Legal Aid clauses.

The Chairman thanked the representatives for the briefing.

The evidence session was recorded by Hansard.

4.11 pm Mr David McNarry left the meeting.

4.18 pm Mr John O'Dowd left the meeting.

Response by Department of Justice officials on the issues raised by the organisations

4.42pm Gareth Johnston, Deputy Director of Justice Strategy Division, Robert Crawford, Head of Public Legal Services Division, Geraldine Fee, Head of Criminal Policy and Legislation Division and Laurene McAlpine, Head of Civil Policy and Legislation Division returned to the table.

The Departmental officials responded to the issues raised by the organisations on the the Legal Aid, Miscellaneous and Supplementary Provisions clauses of the Justice Bill and agreed to provide further information in relation to the number of Legal Aid claimants involved in personal injury cases.

The Chairman thanked the officials for the briefing and they left the meeting.

The Committee discussed the position in relation to Clause 85 and Court Rules Committees.

Agreed: The Committee agreed to consider previous information provided by the Department of Justice on the Court Rules Committees and request advice from the Examiner of Statutory Rules on the matter.

The evidence session was recorded by Hansard.

6. The Justice Bill - consideration of Clauses 36 to 55 and Schedule 3 on Sport

The Committee discussed the evidence received and the issues raised in relation to the Sports Clauses of the Justice Bill at its meeting on 18 November 2010 and noted a letter from the Minister of Justice to Ulster Rugby regarding flexibility for implementing the sports provisions within the Bill.

Agreed: The Committee agreed to give further consideration to the issues raised during the clause by clause scrutiny of the Bill which was scheduled to begin in the New Year.

The evidence session was recorded by Hansard.

Thursday 9 December 2010
Senate Chamber, Parliament Buildings

Present: Lord Morrow MLA (Chairman)
Mr Raymond McCartney MLA (Deputy Chairman)
Lord Browne MLA
Mr Thomas Buchanan MLA
Sir Reg Empey MLA
Mr Paul Givan MLA
Mr Alban Maginness MLA
Mr Conall McDevitt MLA
Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

In Attendance: Mrs Christine Darrah (Assembly Clerk)
Mrs Roisin Donnelly (Assistant Assembly Clerk)
Mr Vincent Gribbin (Assistant Assembly Clerk)
Mr Joe Westland (Clerical Supervisor)
Mr Kevin Marks (Clerical Officer)

2.03 pm The meeting commenced in public session.

5. The Justice Bill – Oral Evidence Sessions

Briefing by Department of Justice Officials on Parts 5 and 6 and Schedule 4 of the Justice Bill relating to the Treatment of Offenders and Alternatives to Prosecution.

3.22pm Gareth Johnston, Deputy Director of Justice Strategy Division, Tom Haire, Justice Bill Manager, Janice Smiley, Head of Criminal Policy Unit and Paul Black, Criminal Policy Unit joined the meeting.

The Departmental officials briefed the Committee on Parts 5 and 6 and Schedule 4 of the Justice Bill relating to the Treatment of Offenders and Alternatives to Prosecution and the intent of the clauses and answered questions from Members.

The Chairman thanked the officials for the briefing.

The evidence session was recorded by Hansard.

Briefing by the Probation Board for Northern Ireland

3.43pm Brian McCaughey, Director, Hugh Hamill, Assistant Director and Louise Cooper, Head of Business Planning and Development, the Probation Board joined the meeting.

The representatives briefed the Committee on the Probation Board views on the Treatment of Offenders and Alternatives to Prosecution Clauses of the Bill and answered questions from Members on issues such as the management of fine defaulters the budgetary commitments required in relation to conditional cautions, and Clause 59 relating to breach of license conditions by sex offenders.

3.54pm Mr Buchanan left the meeting.

4.01pm Sir Reg Empey joined the meeting.

The Chairman thanked the representatives for the briefing.

The evidence session was recorded by Hansard.

Briefing by NIACRO

4.12pm David Weir, Director of Family Services and Pat Conway, Director of Adult Services, NIACRO joined the meeting.

The representatives briefed the Committee on NIACRO's views on the Alternatives to Prosecution Clauses of the Justice Bill and answered questions from Members on issues such as alternatives to fixed penalty notices, the need to divert people away from the Criminal Justice System to alternative services, and the fact that monetary penalties do not address the cases of offending behavior and would not reduce re-offending rates.

4.42pm Mr Maginness rejoined the meeting.

The Chairman thanked the representatives for the briefing.

The evidence session was recorded by Hansard.

Briefing by Include Youth

4.43pm Koulla Yiasouma, Director, Edel Quinn, Policy Manger and Paula Rogers, Policy Coordinator joined the meeting.

The representatives briefed the Committee on Include Youth's views on the Alternatives to Prosecution Clauses of the Justice Bill and the Equality Impact Assessment on the Bill and answered Members questions. Issues covered the impact of fixed penalty notices on young people; the possibility of using the Bill to remove ASBOS; and why alternatives to prosecution proposals were included before the outcome of the Youth Justice Review and Reducing Offending Behaviour were known

4.53pm Sir Reg Empey left the meeting.

The Chairman thanked the representatives for the briefing.

The evidence session was recorded by Hansard.

Response by Department of Justice officials on the issues raised by the organisations

5.17pm Gareth Johnston, Deputy Director of Justice Strategy Division, Tom Haire, Justice Bill Manager, Janice Smiley, Head of Criminal Policy Unit and Paul Black, Criminal Policy Unit returned to the table.

The Departmental officials responded to the issues raised by the organisations on the the Treatment of Offenders and Alternatives to Prosecution clauses of the Justice Bill and agreed to provide the Committee with further information.

5.22pm Mr Givan rejoined the meeting.

The Chairman thanked the officials for the briefing and they left the meeting.

The evidence session was recorded by Hansard.

Thursday 16 December 2010
Room 29, Parliament Buildings

Present: Lord Morrow MLA (Chairman)
Mr Raymond McCartney MLA (Deputy Chairman)
Lord Browne MLA
Mr Thomas Buchanan MLA
Mr Paul Givan MLA
Mr Alban Maginness MLA
Mr Conall McDevitt MLA
Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

In Attendance: Mrs Christine Darrah (Assembly Clerk)
Mrs Roisin Donnelly (Assistant Assembly Clerk)
Mr Vincent Gribbin (Assistant Assembly Clerk)
Mr Joe Westland (Clerical Supervisor)
Mr Kevin Marks (Clerical Officer)

2.35pm The meeting resumed in the Long Gallery in public session.

8. The Justice Bill – Oral Evidence Sessions

The Chairman welcomed the witnesses to the meeting and outlined the structure of the evidence session.

Briefing by Department of Justice Officials on Part 3 and Schedules 1 and 2 of the Justice Bill relating to Policing and Community Safety Partnerships.

2.41pm David Hughes, Head of Policing Policy & Strategy Division, Gareth Johnston, Deputy Director of Justice Strategy Division, Nichola Creagh, Policing Policy and Strategy Division and Dan Mulholland, Policing Policy and Strategy Division joined the meeting.

The Departmental officials briefed the Committee on Part 3 and Schedules 1 and 2 of the Justice Bill relating to Policing and Community Safety Partnerships and the intent of the clauses and answered questions from Members.

Lord Browne declared his interest as a member of Belfast City Council.

2.53pm Sir Reg Empey joined the meeting.

The Chairman thanked the officials for the briefing.

The Chairman invited the witnesses to outline issues in relation to Part 3 and Schedules 1 and 2 of the Justice Bill relating to Policing and Community Safety Partnership.

Clause 20 – Establishment of PCSPs and DPCSPs

Derek Hussey, Strabane Community Safety Partnership, Suzanne Wylie, Belfast City Council, Sarah Wilson, Craigavon Community Safety Partnership, Claire Linney, Dungannon and South Tyrone Borough Council and Jeff Barr, Strabane District Policing Partnership raised a number of issues regarding Clause 20 of the Bill.

Clauses 21 and 22 – Functions of PCSP and DPCSP

Koulla Yiasouma, Include Youth, Suzanne Wylie, Belfast City Council, Liz Cuddy, Extern, Ms Bridget McCaughan, Limavady Borough Council and Derek Hussey, Strabane Community Safety Partnership raised a number of issues regarding Clauses 21 and 22 of the Bill.

Clause 23 – Code of practice for PCSPs and DPCSPs

Sarah Wilson, Craigavon CSP and Rosaleen Moore, Northern Ireland Policing Board raised a number of issues regarding Clause 23 of the Bill.

Clauses 24, 27 and 30 – Accountability and Reporting

Wendy Carson, Larne Borough Council, Helen Richmond, Northern Ireland Local Government Association, Jeff Barr, Strabane District Policing Partnership and Rosaleen Moore, Northern Ireland Policing Board raised a number of issues regarding Clauses 24, 27 and 30 of the Bill.

Clause 30 – Reports by policing committees to Policing Board

Jeff Barr, Strabane District Policing Partnership raised a number of issues regarding Clause 30 of the Bill.

Clause 33 –Other community policing arrangements

Liz Cuddy, Extern, Derek Hussey, Strabane Community Safety Partnership and Ian Creswell, Coleraine Community Safety Partnership raised a number of issues regarding Clause 33 of the Bill.

Clause 34 –Duty on public bodies to consider community safety implications in exercising duties

Jack Beattie, Northern Ireland Local Government Association, Bridgeen Butler, Moyle Community Safety Partnership, Mary McKee, Northern Ireland Policing Board, Derek Hussey, Strabane Community Safety Partnership, Sarah Wilson, Craigavon Community Safety Partnership, Koulla Yiasouma, Include Youth and Jeff Barr, Strabane District Policing Partnership raised a number of issues regarding Clause 34 of the Bill.

Clause 35 – Functions of joint committee and Policing Board

Suzanne Wylie, Belfast City Council, Rosaleen Moore, Northern Ireland Policing Board, Sarah Wilson, Craigavon CSP, Jeff Barr, Strabane DPP and Helen Richmond, Northern Ireland Local Government Association raised a number of issues regarding Clause 35 of the Bill.

Schedule 1 and 2 – Policing and Community Safety Partnerships and District Policing and Community Safety Partnerships

Paragraph 4 - Independent Members

Michael McCrory, Magherafelt CSP and DPP, Maura Hickey, Coleraine DPP, Amanda Stewart, Northern Ireland Policing Board, Mary McKee, Northern Ireland Policing Board, Jeff Barr, Strabane District Policing Partnership, Sarah Wilson, Craigavon CSP, Helen Richmond, Northern Ireland Local Government Association, raised a number of issues regarding Paragraph 4 in Schedules 1 and 2 of the Bill.

3.54pm Mr Buchanan left the meeting.

Paragraph 7 – Representatives of Designated Organisations

Philip McKeown, Moyle DPP, Paul Doran, Probation Board, Cathy Watson, Ballymoney CSP, Campbell Dixon, Newtownabbey Borough Council, Koulla Yiasouma, Include Youth and Derek Hussey, Strabane Community Safety Partnership raised a number of issues regarding Paragraph 7 in Schedules 1 and 2 of the Bill.

Paragraph 10 - Chair and Vice Chair

Cathy Watson, Ballymoney CSP, Rosaleen Moore, Northern Ireland Policing Board Bridget McCaughan, Limavady Borough Council, Jeff Barr, Strabane District Policing Partnership, Helen Richmond, Northern Ireland Local Government Association and Sarah Wilson, Craigavon CSP raised a number of issues regarding Paragraph 10 in Schedules 1 and 2 of the Bill.

Paragraph 13 – Policing Committee: Procedures

Alison Allen, Antrim CSP, DPP and Borough Council and Cathy Watson, Ballymoney CSP raised a number of issues regarding Paragraph 13 in Schedules 1 and 2 of the Bill.

Paragraph 17 - Finance

Suzanne Wylie, Belfast City Council, Jeff Barr, Strabane District Policing Partnership, Mary McKee, Northern Ireland Policing Board, Sarah Wilson, Craigavon CSP, Helen Richmond, Northern Ireland Local Government Association, Derek Hussey, Strabane Community Safety Partnership, Michael McCrory, Magherafelt CSP and DPP and Olwen Lyner, NIACRO raised a number of issues regarding Paragraph 17 in Schedules 1 and 2 of the Bill.

The Chairman thanked the representatives for their evidence.

Response by Department of Justice officials on the issues raised by the organisations

4.34pm David Hughes, Gareth Johnston, Nichola Creagh and Dan Mulholland returned to the table.

The Departmental officials responded to the issues raised by the organisations on the Policing and Community Safety Partnerships clauses of the Justice Bill, answered questions from Members and agreed to provide the Committee with further information on a range of matters.

The Chairman thanked the officials for the briefing and they left the meeting.

The evidence session was recorded by Hansard.

Tuesday 11 January 2011
Room 144, Parliament Buildings

Present: Lord Morrow MLA (Chairman)
Mr Raymond McCartney MLA (Deputy Chairman)
Lord Browne MLA
Mr Paul Givan MLA
Mr Alban Maginness MLA
Mr Conall McDevitt MLA
Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

In Attendance: Mrs Christine Darrah (Assembly Clerk)
Mr Vincent Gribbin (Assistant Assembly Clerk)
Mr Joe Westland (Clerical Supervisor)
Mr Kevin Marks (Clerical Officer)

Apologies: Sir Reg Empey MLA

1.35pm The meeting commenced in public session.

5. The Justice Bill – Oral evidence session by the PSNI

2.40pm Assistant Chief Constable Will Kerr, Chief Superintendent Stephen Martin, Superintendent Chris Noble and Superintendent Alastair Wallace joined the meeting.

The PSNI representatives briefed the Committee on the clauses of the Bill and answered questions from Members on issues such as the necessity of aspects of the legislation and how it would be enforced; the impact of the legislation relating to fine defaulters; and the resource implications of the Bill for the PSNI.

2.57pm Ms Ní Chuilín joined the meeting.

3.30pm Mr Maginness joined the meeting.

The Chairman thanked the PSNI officials for the briefing and they left the meeting.

The evidence session was recorded by Hansard.

Response by Department of Justice officials on the issues raised by the PSNI

3.35pm Gareth Johnston, Head of Justice Strategy Division, David Hughes, Deputy Director of Policing Policy and Strategy, Janice Smiley, Head of Criminal Policy Unit and Tom Haire, Justice Bill Manager joined the meeting.

3.55pm Mr Girvan left the meeting.

3.59pm Mr Maginness left the meeting.

The Departmental officials responded to the issues raised by the PSNI on the Justice Bill.

The Chairman thanked the officials for the briefing and David Hughes left the meeting.

The evidence session was recorded by Hansard.

Briefing on the Justice Bill Equality Impact Assessment

Gareth Johnston, Head of Justice Strategy Division, Janice Smiley, Head of Criminal Policy Unit and Tom Haire, Justice Bill Manager briefed the Committee on the Justice Bill Equality Impact Assessment and answered questions from Members on the process followed for the consultation, the timing of it and the issues highlighted in responses received.

4.11pm Mr Girvan rejoined the meeting.

4.12pm Mr O'Dowd left the meeting.

4.13pm Mr McNarry rejoined the meeting.

4.20pm Mr McDevitt left the meeting.

The Chairman thanked the officials for the briefing and they left the meeting.

The evidence session was recorded by Hansard.

Thursday 13 January 2011
Room 29, Parliament Buildings

Present: Lord Morrow MLA (Chairman)
Mr Raymond McCartney MLA (Deputy Chairman)
Lord Browne MLA
Mr Thomas Buchanan MLA
Sir Reg Empey MLA
Mr Paul Givan MLA
Mr Alban Maginness MLA
Mr Conall McDevitt MLA
Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

In Attendance: Mrs Christine Darrah (Assembly Clerk)
Mrs Roisin Donnelly (Assistant Assembly Clerk)
Mr Vincent Gribbin (Assistant Assembly Clerk)
Mr Joe Westland (Clerical Supervisor)
Mr Kevin Marks (Clerical Officer)

2.02pm The meeting commenced in public session.

5. The Justice Bill – Oral evidence session by the NI Human Rights Commission

3.10pm Professor Monica McWilliams, Chief Commissioner, Ciarán Ó Maoláin, Head of Legal Services, Policy and Research, and Ann Jemphrey, Policy Worker joined the meeting

The Chief Commissioner and her Officials briefed the Committee on the clauses of the Justice Bill and answered questions from Members on issues such as a definition of sectarianism, the offender levy and fixed penalty notices.

3.40pm Mr McNarry left the meeting.

The Chairman thanked the Chief Commissioner and her officials for the briefing.

The evidence session was recorded by Hansard.

Response by Department of Justice officials on the issues raised by the NI Human Rights Commission

3.45pm Gareth Johnston, Head of Justice Strategy Division, Janice Smiley, Head of Criminal Policy Unit, Tom Haire, Justice Bill Manager and Chris Matthews, Head of Sentencing Delivery and European Unit joined the meeting.

The Departmental officials responded to the issues raised by the NI Human Rights Commission on the Justice Bill.

3.49pm Mr Givan joined the meeting.

The Chairman thanked the officials for the briefing and they left the table.

The evidence session was recorded by Hansard.

6. Justice Bill: Advice from the Examiner of Statutory Rules on the Delegated Powers Memorandum

The Committee considered advice received from Assembly Examiner of Statutory Rules on the delegated powers contained in the Justice Bill and in particular Clause 2 (4) and (5), Clause 82 (5), Clause 85 (2) and Clause 89 (2), and why some Court Rules are not subject to any Assembly procedure. The Committee also noted information provided on the background and reasons why rules made by the Magistrate's Court Rules Committee and the County Court Rules Committee are not subject to Assembly procedures.

Agreed: The Committee agreed to write to the Minister of Justice outlining that it was minded to amend Clause 82 (5), 85 (2) and 89 (2) to make the powers contained in them subject to the draft affirmative procedure and seeking his views and commitments to do this. His views on possible changes to the position in relation to Court Rules should also be requested.

7. Clause by Clause consideration of the Justice Bill

4.06pm Gareth Johnston, Janice Smiley, Tom Haire and Chris Mathews returned to the table to provide further information and clarification, if necessary on Clauses 1 to 19 of the Justice Bill.

The Committee reviewed the evidence provided on clauses 1 to 19 of the Bill and sought further information and clarification from the departmental officials on clauses 2, 4, 7, 8, 11, 12, 13, 16 and 19.

Agreed: The Committee agreed to undertake formal consideration of clauses 1-19 at the meeting scheduled for 20 January 2011 and to continue its consideration of the Bill at the meeting scheduled for 18 January 2011.

4.53pm Mr Givan left the meeting.

The Chairman thanked the officials for the briefing as they left the table.

The evidence session was recorded by Hansard.

Tuesday 18 January 2011
Room 29, Parliament Buildings

Present: Lord Morrow MLA (Chairman)
Mr Raymond McCartney MLA (Deputy Chairman)
Lord Browne MLA
Mr Thomas Buchanan MLA
Mr Paul Givan MLA
Mr Alban Maginness MLA
Mr Conall McDevitt MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

In Attendance: Mrs Christine Darrah (Assembly Clerk)
Mr Vincent Gribbin (Assistant Assembly Clerk)
Mr Joe Westland (Clerical Supervisor)
Mr Kevin Marks (Clerical Officer)

3.08pm The meeting commenced in public session.

4. The Justice Bill – Attendance of the Attorney General for Northern Ireland on Clause 34 of the Justice Bill

3.15pm The Attorney General for Northern Ireland, John Larkin QC and Claire Duffy, Head of Division in the Attorney General's office joined the meeting.

The Attorney General outlined his views on clause 34 of the Justice Bill and the legal liability created across a wide range of public bodies. Issues covered included the likelihood of legal action against public bodies as a result of the current wording of the clause and options for amending the clause.

3.35pm Mr O'Dowd joined the meeting.

The Chairman thanked the Attorney General and his official for the briefing and they left the meeting.

The Committee considered whether it would be helpful to receive the views of the Attorney General on other clauses in the Justice Bill and noted that the Assembly Legal Advisors were available to provide advice on any legal issue that arose.

Agreed: The Committee agreed that Members would consider whether there were any further clauses upon which the views of the Attorney General would be helpful and return to the matter at the next meeting.

The evidence session was recorded by Hansard.

5. Informal Clause by Clause consideration of the Justice Bill - Part 3 – Policing and Community Safety Partnerships

3.46pm Gareth Johnston, Head of Justice Strategy Division, David Hughes, Deputy Director of Policing Policy & Strategy, Nicola Creagh, Policing Policy and Strategy Division and Dan Mulholland, Policing Policy and Strategy Division joined the meeting to provide further information and clarification, if necessary on Clauses 20 to 35 of the Justice Bill.

Lord Browne declared his interest as a member of Belfast City Council.

The Committee reviewed the evidence provided on clauses 20 to 35 of the Bill and sought further information and clarification from the departmental officials on clauses 20, 21, 22, 23, 24, 33, 34 and 35.

The officials agreed to consider issues raised in relation to Clause 21 further and report back to the Committee.

3.59pm Mr Buchannan joined the meeting.

4.00pm Mr McDevitt joined the meeting.

4.29pm Mr Givan left the meeting.

4.29pm Mr Maginness left the meeting.

The Chairman thanked the officials for the briefing and they left the meeting.

The evidence session was recorded by Hansard.

Thursday 20 January 2011
Room 29, Parliament Buildings

Present: Lord Morrow MLA (Chairman)
Mr Raymond McCartney MLA (Deputy Chairman)
Lord Browne MLA
Mr Thomas Buchanan MLA
Mr Paul Givan MLA
Mr Alban Maginness MLA
Mr Conall McDevitt MLA
Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

In Attendance: Mrs Christine Darrah (Assembly Clerk)
Mrs Roisin Donnelly (Assistant Assembly Clerk)
Mr Vincent Gribbin (Assistant Assembly Clerk)
Mr Joe Westland (Clerical Supervisor)
Mr Kevin Marks (Clerical Officer)

Apologies: Lord Empey MLA

2.05pm The meeting commenced in public session.

6. Justice Bill - Formal Clause by Clause Consideration – Parts 1 and 2 – Victims and Witnesses and Live Links

The Committee commenced its formal clause-by-clause consideration of the Justice Bill.

3.38pm Gareth Johnston, Head of Justice Strategy Division, Tom Haire, Justice Bill Manager and Janice Smiley, Head of Criminal Policy Unit joined the meeting.

The Committee considered Clauses 1 – 6 relating to the Offender Levy. The Committee discussed a proposal to strengthen Clause 1 to provide a reparation element with the offender having the option of paying the levy or undertaking a limited amount of community service work. The point was made that if the aim of introducing the Offender Levy was to get people to recognise they had done something wrong then the clause needed to be changed in this way. Concerns were raised regarding whether adopting this proposal was practical and if it would further increase the administration costs associated with the Offender Levy.

Clause 1 – Offender levy imposed by court

Question: That the Committee is content with the clause as drafted.

The Committee divided: Ayes 5; Noes 3; Abstain 0

AYES NOES

Lord Browne Mr Raymond McCartney
Mr Thomas Buchannan Ms Carál Ní Chuilín
Mr Paul Givan Mr John O'Dowd
Mr Alban Maginness
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Agreed: That the Committee is content with Clause 1 as drafted.

Clause 2 – Enforcement and treatment of offender levy imposed by court

The Committee considered Clause 2 as drafted.

Question: That the Committee is content with Clause 2 as drafted.

The Committee divided: Ayes 5; Noes 0; Abstain 3

AYES Abstain

Lord Browne Mr Raymond McCartney
Mr Thomas Buchannan Ms Carál Ní Chuilín
Mr Paul Givan Mr John O'Dowd
Mr Alban Maginness
Mr Conall McDevitt

Lord Morrow did not participate in the vote

Agreed: That the Committee is content with Clause 2 as drafted.

Clause 3 – Deduction of offender levy imposed by court from prisoner's earnings

The Committee considered Clause 3 as drafted.

Question: That the Committee is content with Clause 3 as drafted.

The Committee divided: Ayes 5; Noes 0; Abstain 3

AYES Abstain

Lord Browne Mr Raymond McCartney
Mr Thomas Buchannan Ms Carál Ní Chuilín
Mr Paul Givan Mr John O'Dowd
Mr Alban Maginness
Mr Conall McDevitt

Lord Morrow did not participate in the vote

Agreed: That the Committee is content with Clause 3 as drafted.

Clause 4 – Offender levy imposed by court: other supplementary provisions

The Committee considered Clause 4 as drafted.

Question: That the Committee is content with Clause 4 as drafted.

The Committee divided: Ayes 5; Noes 0; Abstain 3

AYES Abstain

Lord Browne Mr Raymond McCartney
Mr Thomas Buchannan Ms Carál Ní Chuilín
Mr Paul Givan Mr John O'Dowd
Mr Alban Maginness
Mr Conall McDevitt

Lord Morrow did not participate in the vote

Agreed: That the Committee is content with Clause 4 as drafted.

Clause 5 – Offender levy on certain penalties

The Committee considered Clause 5 as drafted. The Committee considered whether the application of the offender levy applying to fixed penalty traffic fines was warranted. Departmental officials clarified that the levy would be applied to criminal offences which would include fixed penalty speeding tickets but would not include parking tickets.

Question: That the Committee is content with Clause 5 as drafted.

The Committee divided: Ayes 5; Noes 3

AYES NOES

Lord Browne Mr Raymond McCartney
Mr Thomas Buchannan Ms Carál Ní Chuilín
Mr Paul Givan Mr John O'Dowd
Mr Alban Maginness
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Agreed: That the Committee is content with Clause 5 as drafted.

3.53pm Alban Maginness left the meeting.

Clause 6 – Amount of the offender levy

The Committee considered Clause 6 as drafted.

The Committee divided: Ayes 4; Noes 0; Abstain 3

AYES Abstain

Lord Browne Mr Raymond McCartney
Mr Thomas Buchannan Ms Carál Ní Chuilín
Mr Paul Givan Mr John O'Dowd
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Agreed: That the Committee is content with Clause 6 as drafted.

Schedule 5 paragraph 1 – Offender levy

The Committee considered Schedule 5 paragraph 1 as drafted.

The Committee divided: Ayes 4; Noes 0; Abstain 3

AYES Abstain

Lord Browne Mr Raymond McCartney
Mr Thomas Buchannan Ms Carál Ní Chuilín
Mr Paul Givan Mr John O'Dowd
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Agreed: That the Committee is content with Schedule 5 paragraph 1 as drafted.

The Committee considered Clauses 7 to 13 relating to vulnerable and intimidated witnesses

Clause 7 – Eligibility for special measures: age of child witnesses

The Committee considered Clause 7 as drafted.

Question: "That the Committee is content with Clause 7 put and agreed to."

Clause 8 – Special Measures directions for child witnesses

The Committee considered Clause 8 as drafted.

Question: "That the Committee is content with Clause 8 put and agreed to."

Clause 9 – Special provisions relating to sexual offences

The Committee considered Clause 9 as drafted.

Question: "That the Committee is content with Clause 9 put and agreed to".

Clause 10 – Evidence by live link: presence of supporter

The Committee considered Clause 10 as drafted.

Question: "That the Committee is content with Clause 10 put and agreed to."

Clause 11 – Video recorded evidence in chief: supplementary testimony

The Committee considered Clause 11 as drafted.

Question: "That the Committee is content with Clause 11 put and agreed to."

Clause 12 – Examination of accused through intermediary

The Committee considered Clause 12 as drafted.

Question: "That the Committee is content with Clause 12 put and agreed to."

Clause 13 – Age of child complainant

The Committee considered Clause 13 as drafted.

Question: "That the Committee is content with Clause 13 put and agreed to."

The Committee considered clauses 14 to 19 relating to Live Links

Clause 14 - Live links for patients detained in hospital - parked

The Committee discussed a proposal that a trained mental health advocate should be automatically be allowed to provide assistance at a psychiatric hospital rather than an application having to be made by a patient as envisaged in the clause as drafted

Agreed: The Committee agreed to return to this clause once further information has been provided by the Department.

Clause 15 – Live links at preliminary hearing in the High Court

The Committee considered Clause 15 as drafted.

Question: "That the Committee is content with Clause 15 put and agreed to."

Clause 16 – Live links at preliminary hearing on appeals to the county court

The Committee considered a proposed amendment to Clause 16 from the Department to set out what happens when a live link breaks down. The Department viewed the amendment as being valuable in terms of ensuring consistency with other live links legislation and in providing a guarantee to appellants in ensuring that any rearranged hearing in held promptly.

The Committee also discussed a proposal to insert a requirement into the clause for the written consent of the appellant.

"Question: That the Committee is content with the proposed Department of Justice amendment to insert at end of Clause 16, page 12, line 5 –

"(8A) If the court proceeds with the hearing under paragraph (8) it shall not remand the appellant in custody for a period exceeding 8 days commencing on the day following that on which it remands him."

Put and agreed to."

Mr John O'Dowd proposed an amendment to the clause to require the appellant's consent

The Committee divided: Ayes 3; Noes 4; Abstain 1

AYES NOES Abstain

Mr Raymond McCartney Lord Browne Mr Conall McDevitt
Ms Carál Ní Chuilín Lord Morrow
Mr John O'Dowd Mr Thomas Buchannan
Mr Paul Givan

Agreed: That the proposal falls.

Clause 17 – Live link in sentencing hearing on appeals to the county court

The Committee considered Clause 17 as drafted.

Question: "That the Committee is content with Clause 17 put and agreed to."

Clause 18 – Live links in the Court of Appeal

The Committee considered Clause 18 as drafted.

Question: "That the Committee is content with Clause 18 put and agreed to."

Clause 19 – Live link direction for vulnerable accused

The Committee considered Clause 19 as drafted.

Question: "That the Committee is content with Clause 19 put and agreed to."

Schedule 5 paragraph 2 – Vulnerable and intimidated witnesses

The Committee considered Schedule 5 paragraph 2 as drafted.

Question: "That the Committee is content with Schedule 5 paragraph 2 put and agreed to."

The Chairman thanked the officials and they left the meeting.

The Clause by Clause consideration was recorded by Hansard.

7. Justice Bill - Continuation of Informal Clause by Clause consideration

4.18pm Gareth Johnston, Head of Justice Strategy Division and David Hughes, Head of Policing Policy and Strategy Division joined the meeting to provide further information and clarification, if necessary on Schedules 1 and 2 of the Justice Bill.

The Committee reviewed the evidence provided on Schedules 1 and 2 of the Bill and sought further information and clarification from the departmental officials on paragraphs 4, 7, 8 10, 13, 14 and 17.

The Chairman thanked the officials and they left the meeting.

The clause-by-clause consideration was recorded by Hansard

The Committee considered the work schedule for its continued scrutiny of the Justice Bill.

Agreed: The Committee agreed to postpone the briefings scheduled for 27 January by the Law Society and the Bar Council on the proposals for Remuneration of Defence Counsel in Crown Court Cases and the briefing by department officials on proposals for assignment of counsel.

Tuesday 25 January 2011
Room 21, Parliament Buildings

Present: Lord Morrow MLA (Chairman)
Mr Raymond McCartney MLA (Deputy Chairman)
Lord Browne MLA
Mr Thomas Buchanan MLA
Mr Paul Givan MLA
Mr Alban Maginness MLA
Mr Conall McDevitt MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

In Attendance: Mrs Christine Darrah (Assembly Clerk)
Mr Vincent Gribbin (Assistant Assembly Clerk)
Mr Joe Westland (Clerical Supervisor)

3.05pm The meeting commenced in public session.

3.46pm The meeting was suspended to enable members to vote in the plenary session.

4.03pm The meeting resumed.

4.07pm Mr Givan left the meeting.

4.09pm Mr Buchanan joined the meeting.

4.20pm Mr Maginness left the meeting.

6. Continuation of Informal Clause by Clause Consideration – Section 4 and Schedule 3 – Sport

4.30pm Gareth Johnston, Head of Justice Strategy Division and Tom Haire, Justice Bill Manager joined the meeting to provide further information and clarification, if necessary, on Clauses 36 to 55 and Schedule 3 of the Justice Bill.

The Committee reviewed the evidence provided on clauses 36 to 55 and Schedule 3 of the Justice Bill and sought further information and clarification from the departmental officials on clauses 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46 and Schedule 3.

The Department officials advised the Committee that the Minister of Justice intended to propose amendments to the Bill in relation to clauses 36, 38, 44, 49 and Schedule 3 and to remove Clause 45 from the Bill. The draft amendments would be provided to the Committee as soon as possible.

4.31pm Mr O'Dowd rejoined the meeting.

5.07pm Mr Givan rejoined the meeting.

5.15pm Ms Ní Chuilín left the meeting.

The officials agreed to consider the issues raised in relation to Clause 37, further and report back to the Committee.

The Chairman thanked the officials for the briefing and they left the meeting.

The evidence session was recorded by Hansard.

Thursday 27 January 2011
Senate Chamber, Parliament Buildings

Present: Lord Morrow MLA (Chairman)
Mr Raymond McCartney MLA (Deputy Chairman)
Lord Browne MLA
Lord Empey MLA
Mr Paul Givan MLA
Mr Alban Maginness MLA
Mr Conall McDevitt MLA
Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

In Attendance: Mrs Christine Darrah (Assembly Clerk)
Mrs Roisin Donnelly (Assistant Assembly Clerk)
Mr Vincent Gribbin (Assistant Assembly Clerk)
Mr Joe Westland (Clerical Supervisor)
Mr Kevin Marks (Clerical Officer)

2.10 pm The meeting commenced in public session.

4. Justice Bill - Clause by Clause Consideration Part 3 – Policing and Community Safety Partnerships and Schedules 1 and 2

The Committee continued its clause-by-clause consideration of the Justice Bill covering Clauses 20-35 and Schedules 1 and 2 relating to Policing and Community Safety Partnerships.

2.15 pm David Hughes, Head of Policing Policy and Strategy Division, Gareth Johnston, Head of Justice Strategy Division, Dan Mulholland, Policing Policy and Strategy Division and Nichola Creagh, Policing Policy & Strategy Division joined the meeting.

Some members indicated that they were not a position to formally decide on clauses 20 – 35 and Schedules 1 and 2 as there was an issue in relation to the Belfast DPCSP which they wished to explore further.

Agreed: The Committee agreed to reach its informal view on the clauses.

2.23 pm Lord Browne joined the meeting.

2.24 pm Mr McDevitt joined the meeting.

Clause 20: Establishment of PCSPs and DPCSPs

The Committee indicated that it was content with clause 20 as drafted.

Lord Browne declared his interest as a member of Belfast City Council.

The Committee divided: Ayes 4; Noes 0; Abstain 5

AYES ABSTAIN

Lord Browne MLA Mr Raymond McCartney MLA
Mr Paul Givan MLA Lord Empey MLA
Mr Alban Maginness MLA Mr David McNarry MLA
Mr Conall McDevitt MLA Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

Lord Morrow did not participate in the vote.

Clause 21: Functions of PCSP

The Committee considered an amendment requested by Include Youth to 21 (1)(d) to insert

2.50 pm Mr Maginness left the meeting.

Agreed: The Committee agreed that clause 21 should be amended to "and fully considering" after "to make arrangements for obtaining".

The Committee considered an amendment requested by Strabane, Derry and Limavady DPPs to 21 (1)(h) to replace "persons" with "organisations" but was of the view that the clause as drafted in relation to this issue was adequate.

The Committee divided: Ayes 3; Noes 0; Abstain 5

AYES ABSTAIN

Lord Browne MLA Mr Raymond McCartney MLA
Mr Paul Givan MLA Lord Empey MLA
Mr Conall McDevitt MLA Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

Lord Morrow did not participate in the vote.

Clause 22: Functions of DPCSP

The Committee indicated that it was content with clause 22 as drafted.

The Committee divided: Ayes 3; Noes 0; Abstain 5

AYES ABSTAIN

Lord Browne MLA Mr Raymond McCartney MLA
Mr Paul Givan MLA Lord Empey MLA
Mr Conall McDevitt MLA Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

Lord Morrow did not participate in the vote.

Clause 23: Code of practice for PCSPs and DPCSPs

The Committee indicated that it was content with clause 23 as drafted.

The Committee divided: Ayes 3; Noes 0; Abstain 5

AYES ABSTAIN

Lord Browne MLA Mr Raymond McCartney MLA
Mr Paul Givan MLA Lord Empey MLA
Mr Conall McDevitt MLA Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

Lord Morrow did not participate in the vote.

Clauses 24 to 26 - Annual Reports

The Committee indicated that it was content with clauses 24 to 26 as drafted.

The Committee divided: Ayes 3; Noes 0; Abstain 5

AYES ABSTAIN

Lord Browne MLA Mr Raymond McCartney MLA
Mr Paul Givan MLA Lord Empey MLA
Mr Conall McDevitt MLA Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

Lord Morrow did not participate in the vote.

Clauses 27 to 29 - Other reports by PCSPs and DPCSPs

The Committee indicated that it was content with clauses 27 to 29 as drafted.

The Committee divided: Ayes 3; Noes 0; Abstain 5

AYES ABSTAIN

Lord Browne MLA Mr Raymond McCartney MLA
Mr Paul Givan MLA Lord Empey MLA
Mr Conall McDevitt MLA Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

Lord Morrow did not participate in the vote.

Clauses 30 to 32 – Policing Committee Reports

The Committee indicated that it was content with clauses 30 to 32 as drafted.

The Committee divided: Ayes 3; Noes 0; Abstain 5

AYES ABSTAIN

Lord Browne MLA Mr Raymond McCartney MLA
Mr Paul Givan MLA Lord Empey MLA
Mr Conall McDevitt MLA Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

Lord Morrow did not participate in the vote.

Clause 33: Other community policing arrangements

The Committee indicated that it was content with clause 33 as drafted.

The Committee divided: Ayes 3; Noes 0; Abstain 5

AYES ABSTAIN

Lord Browne MLA Mr Raymond McCartney MLA
Mr Paul Givan MLA Lord Empey MLA
Mr Conall McDevitt MLA Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

Lord Morrow did not participate in the vote.

Clause 34: Duty on public bodies to consider community safety implications in exercising duties

The Committee discussed this clause in detail and the likely implications of the creation of a new public duty on public bodies. Issues covered included whether public bodies were ready and whether they fully understood the requirements and implications. The Committee also noted the options proposed by the Attorney General during his oral evidence to the Committee and considered a proposed amendment by the Department of Justice to address concerns regarding on the wide scope of the clause and the potential for legal action.

3.02 pm Mr Maginness rejoined the meeting.

3.28 pm Mr Maginness left the meeting.

Agreed: The Committee agreed to consider to this clause further at a future meeting.

3.32 pm Mr McNarry left the meeting.

Clause 35: Functions of joint committee and Policing Board

The Committee indicated that it was content with clause 35 as drafted.

The Committee divided: Ayes 3; Noes 0; Abstain 4

AYES ABSTAIN

Lord Browne MLA Mr Raymond McCartney MLA
Mr Paul Givan MLA Lord Empey MLA
Mr Conall McDevitt MLA Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

Lord Morrow did not participate in the vote.

Schedule 1 paragraphs 1 to 3 – Interpretation, Composition and Political Members

The Committee indicated that it was content with paragraphs 1 to 3 as drafted.

The Committee divided: Ayes 3; Noes 0; Abstain 4

AYES ABSTAIN

Lord Browne MLA Mr Raymond McCartney MLA
Mr Paul Givan MLA Lord Empey MLA
Mr Conall McDevitt MLA Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

Lord Morrow did not participate in the vote.

Schedule 1 paragraph 4 - Independent members

The Committee considered a proposed amendment to paragraph 4 from the Department of Justice providing for the payment of expenses to all members of Policing and Community Safety Partnerships which aimed to give the councils the scope to pay expenses to all members who do not receive them from their own organisation.

The Committee indicated that it was content with paragraph 4 as amended.

The Committee divided: Ayes 3; Noes 0; Abstain 4

AYES ABSTAIN

Lord Browne MLA Mr Raymond McCartney MLA
Mr Paul Givan MLA Lord Empey MLA
Mr Conall McDevitt MLA Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

Lord Morrow did not participate in the vote.

Schedule 1 paragraphs 5 and 6 – Independent members

The Committee indicated that it was content with paragraphs 5 and 6 as drafted.

The Committee divided: Ayes 3; Noes 0; Abstain 4

AYES ABSTAIN

Lord Browne MLA Mr Raymond McCartney MLA
Mr Paul Givan MLA Lord Empey MLA
Mr Conall McDevitt MLA Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

Lord Morrow did not participate in the vote.

Schedule 1 paragraph 7 - Representatives of designated organisations

The Committee discussed the advantages and disadvantages of designing certain organisations which would be represented on all PCSPs and which organisations should be included. The Committee considered a proposed amendment from the Department of Justice to enable the designation of certain organisations without this appearing on the face of the Bill.

The Committee also discussed the possibility of enabling the designation of certain organisations by way of a regulation.

3.42 pm Mr Mc Narry rejoined the meeting.

Agreed: The Committee agreed that an amendment should be drafted to provide for organisations to be designated so that they are represented on all PCSPs by way of a regulation.

4.00 pm Ms Ní Chuilín left the meeting.

Schedule 1 paragraph 8 - Removal of members

The Committee indicated that it was content with paragraph 8 as drafted.

The Committee divided: Ayes 3; Noes 0; Abstain 5

AYES ABSTAIN

Lord Browne MLA Mr Raymond McCartney MLA
Mr Paul Givan MLA Lord Empey MLA
Mr Conall McDevitt MLA Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

Lord Morrow did not participate in the vote.

4.12 pm Ms Ní Chuilín rejoined the meeting.

Schedule 1 paragraph 9 – Disqualification

The Committee indicated that it was content with paragraph 9 as drafted.

The Committee divided: Ayes 3; Noes 0; Abstain 5

AYES ABSTAIN

Lord Browne MLA Mr Raymond McCartney MLA
Mr Paul Givan MLA Lord Empey MLA
Mr Conall McDevitt MLA Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

Lord Morrow did not participate in the vote.

Schedule 1 paragraph 10 - Chair and vice-chair

The Committee discussed a proposal by Mr Givan for an amendment to ensure that the Chair of the PCSP will be an elected member.

Agreed: The Committee agreed that an amendment should be drafted as outlined.

Departmental officials undertook to provide a draft amendment for consideration.

Schedule 1 paragraph 11 - Procedure of PCSP

The Committee indicated that it was content with paragraph 11 as drafted.

The Committee divided: Ayes 3; Noes 0; Abstain 5

AYES ABSTAIN

Lord Browne MLA Mr Raymond McCartney MLA
Mr Paul Givan MLA Lord Empey MLA
Mr Conall McDevitt MLA Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

Lord Morrow did not participate in the vote.

Schedule 1 paragraphs 12 and 13 - Policing committee: constitution and procedure

The Committee indicated that it was content with paragraphs 12 and 13 as drafted.

The Committee divided: Ayes 3; Noes 0; Abstain 5

AYES ABSTAIN

Lord Browne MLA Mr Raymond McCartney MLA
Mr Paul Givan MLA Lord Empey MLA
Mr Conall McDevitt MLA Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

Lord Morrow did not participate in the vote.

Schedule 1 paragraph 14 to 16 - Other committees, Indemnities and Insurance against accidents

The Committee indicated that it was content with paragraphs 14 to 16 as drafted.

The Committee divided: Ayes 3; Noes 0; Abstain 5

AYES ABSTAIN

Lord Browne MLA Mr Raymond McCartney MLA
Mr Paul Givan MLA Lord Empey MLA
Mr Conall McDevitt MLA Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

Lord Morrow did not participate in the vote.

4.28 pm Mr McDevitt left the meeting.

Schedule 1 paragraph 17 - Finance

The Committee considered a proposed amendment by the Department to replace the word "may" with "shall" relating to the granting of finances to the Council for the funding of the PCSPs to ensure that the Department and the Policing Board's commitment to funding the PCSPs is conveyed, and to include further detail on the actual mechanisms for funding PCSPs.

The Committee indicated that it was content with paragraph 17 as amended.

The Committee divided: Ayes 2; Noes 0; Abstain 5

AYES ABSTAIN

Lord Browne MLA Mr Raymond McCartney MLA
Mr Paul Givan MLA Lord Empey MLA
Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

Lord Morrow did not participate in the vote.

Schedule 1 Paragraphs 18 and 19 - Validity of proceedings, Disclosure of pecuniary interests, family connections, etc.

The Committee indicated that it was content with paragraphs 18 and 19 as drafted.

The Committee divided: Ayes 2; Noes 0; Abstain 5

AYES ABSTAIN

Lord Browne MLA Mr Raymond McCartney MLA
Mr Paul Givan MLA Lord Empey MLA
Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

Lord Morrow did not participate in the vote.

4.35 pm Mr McDevitt rejoined the meeting.

Schedule 1 paragraphs 20 and 21 - Joint PCSPs and Belfast PCSP

The Committee indicated that it was content with paragraphs 20 and 21 as drafted.

The Committee divided: Ayes 3; Noes 0; Abstain 5

AYES ABSTAIN

Lord Browne MLA Mr Raymond McCartney MLA
Mr Paul Givan MLA Lord Empey MLA
Mr Conall McDevitt MLA Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

Lord Morrow did not participate in the vote.

Schedule 2

The Committee indicated that the decisions made in relation to Schedule 1 should apply to Schedule 2.

The Committee divided: Ayes 3; Noes 0; Abstain 5

AYES ABSTAIN

Lord Browne MLA Mr Raymond McCartney MLA
Mr Paul Givan MLA Lord Empey MLA
Mr Conall McDevitt MLA Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

Lord Morrow did not participate in the vote.

The Chairman thanked the officials and they left the meeting.

The clause-by-clause consideration was recorded by Hansard

4.40 pm The meeting was suspended.

5.14 pm The meeting resumed.

Present: Lord Morrow MLA (Chairman)
Mr Raymond McCartney MLA (Deputy Chairman)
Lord Browne MLA
Lord Empey MLA
Mr Conall McDevitt MLA
Mr John O'Dowd MLA

In Attendance: Mrs Christine Darrah (Assembly Clerk) Mr Vincent Gribbin (Assistant Assembly Clerk)
Mr Joe Westland (Clerical Supervisor)
Mr Kevin Marks (Clerical Officer)

5. Justice Bill - Continuation of Clause by Clause consideration

Gareth Johnston, Head of Justice Strategy Division, Tom Haire, Justice Bill Manager and Amanda Patterson, Head of Public Protection joined the meeting at 5.46pm to provide further information and clarification, if necessary on Part 5 – Treatment of Offenders.

The Committee reviewed the evidence provided on Part 5 – Treatment of Offenders, and sought further information and clarification from the departmental officials on clauses 58, 59 and 63.

The Departmental officials briefed the Committee on a new clause that the Minister of Justice proposed to introduce at Consideration Stage and answered questions. The new clause related to improvements to sex offender notification requirements.

The Chairman thanked Amanda Patterson and she left the meeting.

Geraldine Fee Head of Criminal Policy and Legislation Division, NICTS and Billy Stevenson, Head of Organised Crime unit joined the meeting at 6.11 pm to provide further information and clarification, if necessary, on Part 8 - Miscellaneous, Part 9 – Supplementary Provisions and Schedules 6 and 7.

The Committee reviewed the evidence provided on Parts 8 and 9 and Schedules 6 and 7 and sought further information and clarification on clauses 96 and 97.

6.22 pm Mr Givan left the meeting.

6.28 pm Ms Ní Chuilín left the meeting.

The Departmental officials briefed the Committee on a new clause that the Minister of Justice proposed to introduce at Consideration Stage and answered questions. The clause made provision to allow the Department to have access to and to allocate the proceeds of criminal assets currently remitted to the NI Consolidated Fund.

The clause-by-clause consideration was recorded by Hansard

The Committee considered the work schedule for its continued scrutiny of the Justice Bill.

Tuesday 1 February 2011
Room 21, Parliament Buildings

Present: Lord Morrow MLA (Chairman)
Mr Raymond McCartney MLA (Deputy Chairman)
Lord Browne MLA
Mr Paul Givan MLA
Mr Alban Maginness MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

In Attendance: Mrs Christine Darrah (Assembly Clerk)
Mr Vincent Gribbin (Assistant Assembly Clerk)
Mr Joe Westland (Clerical Supervisor)

Apologies: Lord Empey MLA
Mr David McNarry MLA

3.05pm The meeting commenced in public session.

3.35pm The meeting was suspended to enable members to vote in the plenary session.

3.53pm The meeting resumed.

5. Formal Clause by Clause Consideration of Part 4 and Schedule 3 of the Justice Bill – Sports Provisions

The Committee continued its clause-by-clause consideration of the Justice Bill covering Clauses 36 to 55 and Schedule 3 relating to Sport.

4.30pm Gareth Johnston, Head of Justice Strategy Division, Tom Haire, Justice Bill Manager and David Mercer, Criminal Law Branch joined the meeting to provide further information and clarification if necessary.

Clause 36 – Regulated Matches

The Committee considered a proposed amendment to clause 36 from the Department of Justice to reduce the time period around which powers would be applied to regulated matches from "two hours before/one hour after" to "one hour before/thirty matches ".

"Question: "That the Committee is content with Clause 36 as amended as follows:

Clause 36, page 25, line 26, leave out paragraph (c)

Clause 36, page 25, line 32, leave out from 'two hours before' to end of line and insert 'one hour before the start of the match or (if earlier) one hour'

Clause 36, page 25, line 34, leave out 'one hour' and insert '30 minutes'

Clause 36, page 25, line 38, leave out 'two hours' and insert 'one hour'

Clause 36, page 25, line 39, leave out 'one hour' and insert '30 minutes'

Clause 37 – Throwing of missiles

The Committee considered a proposed amendment to Clause 37 from the Department of Justice. The proposed amendment aimed to meet the Committee's concerns about the lack of a definition of a "missile" by focusing more on those items likely to cause injury.

Question: "That the Committee is content with Clause 37 as amended as follows:

Clause 37, page 26, line 8, leave out 'anything' and insert 'any object to which this subsection applies'

Clause 37, page 26, line 13, at end insert:

'(1A) Subsection (1) applies to any object which, if thrown as mentioned in that subsection, would be likely to cause injury to any person who may be struck by the object.'

Clause 38 – Chanting

The Committee considered a proposed amendment to Clause 38 from the Department of Justice to include sectarianism as had been requested by Committee Members.

"Question: That the Committee is content with Clause 38 as amended as follows:

Clause 38, page 26, line 22, leave out 'an' and insert 'a sectarian or'

Clause 38, page 26, line 25, leave out 'religious belief'

Clause 38, page 26, line 26, at end insert:

'(3A) For the purposes of this section chanting is of a sectarian nature if it consists of or includes matter which is threatening, abusive or insulting to a person by reason of that person's religious belief or political opinion or against an individual as a member of such a group.'

Clause 39 – Going onto the playing area

The Committee discussed a proposal to amend the clause to deal with an incursion to cause injury rather than just exuberance. The Department officials indicated that the intention of the clause was to avoid people rushing onto the pitch which in itself creates a danger of injury. They confirmed that the clause does provide for authorised pitch invasions.

"Question: That the Committee is content with Clause 39 put and agreed to".

The Committee divided: Ayes 5; Noes 0; Abstain 3

AYES ABSTAIN

Lord Browne Mr Raymond McCartney
Mr Thomas Buchanan Ms Carál Ní Chuilín
Mr Paul Givan Mr John O'Dowd
Mr Alban Maginness
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Clause 40 – Possession of fireworks, flares etc

The Committee considered correspondence from the Department of Justice regarding the inclusion of "laser pens" within clause 40. The Committee noted that there were difficulties with including laser pens in the legislation but that the Minister of Justice would ensure that the importance of controlling such devices at sports grounds is recognised and will take the issue forward with relevant departments.

The Committee considered Clause 40 as drafted.

"Question: That the Committee is content with Clause 40 put and agreed to".

Clause 41 – Being drunk at a regulated match

The Committee discussed clause 41. While the Committee did not disagree with the objective of the clause it believed it was unnecessary as there was already adequate legislation in place and the provision was likely to be unenforceable.

"Question: That the Committee is not content with Clause 41 put and agreed to".

Clause 42 – Possession of drink containers, etc.

The Committee discussed Clause 42 and expressed strong reservations regarding whether it was necessary. The Committee was of the view that it would be difficult to enforce and impractical to work.

"Question: That the Committee is not content with Clause 42 put and agreed to".

Clause 43 – Possession of alcohol

The Committee considered a proposal from the Department of Justice to amend the commencement of this clause to be subject to affirmative procedure and require full Assembly consent (this amendment would be achieved by changing the commencement provisions in clause 103).

The Committee was of the view that this clause created unnecessary criminal offences and self-regulation by the relevant bodies was preferable.

"Question: That the Committee is not content with Clause 43 put and agreed to".

Clauses 44 – Offences in connection with alcohol on vehicles

The Committee considered a proposal from the Department of Justice to amend clause 44 to remove the offence of being drunk on specified vehicles entirely and remove the restrictions on alcohol on vehicles travelling away from a game.

"Question: That the Committee is content with Clause 44 as amended as follows".

Clause 44, page 28, line 32, leave out 'or from'

Clause 44, page 29, line 6, leave out subsection (5)

Clause 44, page 29, line 15, leave out paragraph (c)

The Committee divided: Ayes 5; Noes 0; Abstain 3

AYES ABSTAIN

Lord Browne Mr Raymond McCartney
Mr Thomas Buchanan Ms Carál Ní Chuilín
Mr Paul Givan Mr John O'Dowd
Mr Alban Maginness
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Clause 45 – Sale of tickets by unauthorised persons

The Committee considered a proposal from the Department of Justice to withdraw clause 45 in favour of self regulation by the sports bodies and supported this approach.

"Question: That the Committee is not content with Clause 45 put and agreed to".

Clauses 46 – 48 Banning Orders

The Committee considered Clauses 46 to 48 as drafted.

"Question: That the Committee is content with Clauses 46 to 48 put and agreed to".

The Committee divided: Ayes 5; Noes 0; Abstain 3

AYES ABSTAIN

Lord Browne Mr Raymond McCartney
Mr Thomas Buchanan Ms Carál Ní Chuilín
Mr Paul Givan Mr John O'Dowd
Mr Alban Maginness
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Clauses 49 – Banning orders: "violence" and "disorder"

The Committee considered a proposed amendment to Clause 49 from the Department of Justice to include sectarianism more explicitly in the provisions.

"Question: That the Committee is content with Clause 49 as amended as follows:

Clause 49, page 33, line 6 after 'up' insert 'sectarian hatred or'

Clause 49, page 33, line 8, leave out 'religious belief'

Clause 49, page 33, line 14, leave out subsection (3) and insert:

'(3) For the purposes of this section sectarian hatred is hatred against a group of persons defined by reference to religious belief or political opinion.'

The Committee divided: Ayes 5; Noes 0; Abstain 3

AYES ABSTAIN

Lord Browne Mr Raymond McCartney
Mr Thomas Buchanan Ms Carál Ní Chuilín
Mr Paul Givan Mr John O'Dowd
Mr Alban Maginness
Mr Conall McDevitt

Lord Morrow did not participate in the vote

Clauses 50 to 55 Banning Orders

The Committee considered Clauses 50 to 55 as drafted.

"Question: That the Committee is content with Clauses 50 to 55 put and agreed to".

The Committee divided: Ayes 5; Noes 0; Abstain 3

AYES ABSTAIN

Lord Browne Mr Raymond McCartney
Mr Thomas Buchanan Ms Carál Ní Chuilín
Mr Paul Givan Mr John O'Dowd
Mr Alban Maginness
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Schedule 3 – Regulated Matches

The Committee considered an amendment, proposed by the Department of Justice, to

Schedule 3 paragraph 8 to remove sports grounds at which there is a stand requiring a safety certificate thereby ensuring that the provisions only apply to matches at designated grounds.

The Committee considered Schedule 3 as amended.

"Question: That the Committee is content with Schedule 3 as amended as follows:

Schedule 3, page 81, line 7, leave out from 'or' to end of line 9

Schedule 3, page 81, line 19, leave out from 'or' to end of line 21

The Chairman thanked David Mercer and he left the meeting.

The clause-by-clause consideration was recorded by Hansard

6. Justice Bill: Continuation of Informal Clause by Clause Consideration of the Justice Bill - Parts 6 and 7

5.40 pm Janice Smiley, Head of Criminal Policy Unit and Paul Black, Criminal Policy Unit joined the meeting to provide further information and clarification, if necessary, on Part 6 of the Justice Bill.

The Committee reviewed the evidence provided on Part 6 – Alternatives to Prosecution and sought further information and clarification from the departmental officials on clauses 64, 65, 67, 73, 74, 76, 77, 80, 82 and 83.

The Departmental officials advised the Committee that the Minister of Justice intended to propose an amendment to the Bill in relation to clause 82 as requested by the Committee so that the Code of Practice would be subject to affirmative resolution. The draft amendments would be provided to the Committee for consideration as soon as possible.

5.56pm Paul Givan left the meeting.

The Chairman thanked Janice Smiley and Paul Black and they left the meeting.

6.02pm Robert Crawford, Head of Public Legal Services and John Halliday, Criminal Legal Aid Policy Advisor joined the meeting to provide further information and clarification, if necessary on Part 7 - Legal Aid etc - of the Justice Bill.

The Committee reviewed the evidence provided on Part 7 - Legal Aid etc and sought further information and clarification from the departmental officials on clauses 85, 89 and 90.

The Committee considered correspondence from the Minister of Justice regarding the Committee's recommendation that the legal aid regulations in Clauses 85 and 89 should be subject to draft affirmative procedure. The Minister outlined concerns regarding the proposal and indicated that he was not minded to make such an amendment.

Agreed: The Committee agreed request that draft amendments be prepared so that the legal aid regulations in clauses 85(2) and 89(2) would be subject to draft affirmative procedure.

The Chairman thanked the officials for the briefing and they left the meeting.

The evidence session was recorded by Hansard.

Thursday 3 February 2011
The Senate Chamber, Parliament Buildings

Present: Lord Morrow MLA (Chairman)
Mr Raymond McCartney MLA (Deputy Chairman)
Lord Browne MLA
Mr Thomas Buchanan MLA
Lord Empey MLA
Mr Paul Givan MLA
Mr Alban Maginness MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

In Attendance: Mrs Christine Darrah (Assembly Clerk)
Mr Vincent Gribbin (Assistant Assembly Clerk)
Mr Joe Westland (Clerical Supervisor)
Mr Kevin Marks (Clerical Officer)

Apologies: Mr Conall McDevitt MLA
Mr David McNarry MLA

2.07pm The meeting commenced in public session.

5. Justice Bill: Consideration of proposed new clauses relating to Amendment to funds in court legislation and solicitors rights of audience.

The Committee noted a request from the Bar Council seeking an opportunity to brief the Committee on solicitor's rights of audience

2.18 pm Gareth Johnston, Head of Justice Strategy Division, Geraldine Fee, Head of Criminal Policy and Legislation Division, Michael Kelly and Richard Ronaldson, NICTS joined the meeting.

The Departmental officials briefed the Committee on provisions in relation to funds in courts which the Department hoped to introduce as amendments at consideration stage. A question and answer session followed covering the detail of the amendment; the current legislation dealing with funds; the reasons for the amendment; the status of the proposed court action; and the availability of funding to cover possible reimbursement costs.

Agreed: The Committee agreed to request the views of the Bar Council in writing. If any further clarification is required this can be obtained when representatives of the Bar attend next Thursday on Crown Court Renumeration

The Chairman thanked Michael Kelly and Richard Ronaldson for the briefing and they left the meeting.

2.50pm Robert Crawford, Head of Public Legal Services Division and Maria Dougan joined the meeting.

The Departmental officials outlined the proposed amendments on solicitors' rights of audience and answered questions from Members on such issues as the role of the Department and the Attorney General in Regulations on the education and training for Solicitor Advocates; the requirement to advise clients in writing of the advantages and disadvantages of representation by an authorised solicitor; and the policy of extending solicitors' rights of audience generally.

3.06pm Mr Buchanan joined the meeting.

The Chairman thanked the officials for the briefing and they left the meeting.

3.30pm Alan Hunter, Chief Executive of the Law Society and Peter Campbell, Chairman of the Higher Rights of Audience Committee joined the meeting.

Mr Hunter and Mr Campbell outlined the Law Society's key issues regarding the proposed solicitors' rights of audience amendments and answered questions from Members on a range of issues including the necessity of some of the proposals; perceived conflict of interest; and in regulation to give effect to education, training etc.

Alban Maginness placed on record a declaration of interest in relation to his occupation as a barrister.

4.11pm Mr Givan joined the meeting.

The Chairman thanked the Law Society representatives for the briefing and they left the meeting.

4.23pm Gareth Johnston, Head of Justice Strategy Division, Geraldine Fee, Head of Criminal Policy and Legislation Division, Robert Crawford, Head of Public Legal Services Division, and Maria Dougan joined the meeting.

The Departmental officials responded to the points made by the Law Society and answered further questions from Members.

The Chairman thanked the officials for the briefing and they left the meeting.

4.43pm Mr Maginness left the meeting.

Agreed: The Committee agreed to consider the matter further at its meeting on 8 February 2011.

6. The Justice Bill Committee Stage - Formal Clause by Clause Consideration

The Committee continued its clause-by-clause consideration of Parts 5 to 9 and Schedules 4 to 7 of the Justice Bill and new amendments proposed by the Department of Justice.

4.46pm Gareth Johnston, Head of Justice Strategy Division, Tom Haire, Justice Bill Manager, and Janice Smiley, Head of Criminal Policy Unit joined the meeting. to provide further information and clarification if necessary.

4.43pm Mr McCartney left the meeting.

Clauses 56 – 63 Treatment of Offenders

The Committee considered Clauses 56 - 63 as drafted.

"Question: That the Committee is content with Clauses 56 – 63 put and agreed to".

4.47pm Mr McCartney rejoined the meeting.

Clauses 64 – 75 Penalty Notices

The Committee considered Clauses 64 - 75 as drafted.

"Question: That the Committee is content with Clause 64 - 75 put and agreed to".

The Committee divided: Ayes 4; Noes 0; Abstain 3

AYES ABSTAIN

Lord Browne Mr Raymond McCartney
Mr Thomas Buchanan Ms Carál Ní Chuilín
Lord Empey Mr John O'Dowd
Mr Paul Givan
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Clauses 76 – 81 Conditional Cautions

The Committee considered Clauses 76 - 81 as drafted.

"Question: That the Committee is content with Clauses 76 – 81 put and agreed to".

Clause 82 Code of Practice

The Committee considered an amendment proposed by the Department to meet the concerns of the Committee and the Assembly Examiner of Statutory Rules that the order making power at clause 82(5) should be subject to affirmative resolution. The Department's proposed amendment would provide that the order which brings the Code of Practice into operation must be laid before and approved by affirmative resolution. However this would not be by way of an amendment to clause 82 but by an amendment to clause 103.

The Committee considered Clause 82 as drafted by the Department.

"Question: That the Committee is content with Clause 82 put and agreed to".

Clause 83 – 84 Conditional Cautions

The Committee considered Clauses 82 - 84 as drafted.

"Question: That the Committee is content with Clauses 82 - 84 put and agreed to".

The Chairman thanked Janice Smiley and she left the meeting.

5.00 pm Geraldine Fee, Head of Criminal Policy and Legislation Division and Robert Crawford, Head of Public Legal Services Division joined the meeting.

5.05 pm Lord Empey left the meeting.

Clause 85 Eligibility for criminal legal aid

The Committee considered an amendment to Clause 85 which would provide for affirmative resolution when and if the Criminal legal aid Means Test is enacted for the first time but that subsequent amendments to the means test would be by negative resolution.

5.05 pm Lord Empey left the meeting.

Agreed: The Committee agreed to return to this clause at the next meeting.

Clauses 86 – 88 Legal Aid

The Committee considered Clauses 86 - 88 as drafted.

"Question: That the Committee is content with Clauses 86 - 88 put and agreed to".

Clause 89 Financial Eligibility for grant of right of representation

The Committee considered its amendment to Clause 89 to affirmative procedure for any rules under the provision

Agreed: The Committee agreed to return to this clause at the next meeting.

Clauses 90 – 91 Legal Aid

The Committee considered Clauses 90 - 91 as drafted.

"Question: That the Committee is content with Clauses 90 - 91 put and agreed to".

Clauses 92 – 94 Miscellaneous

The Committee considered Clauses 92 – 94 as drafted.

"Question: That the Committee is content with Clauses 92 - 94 put and agreed to".

Clause 95 – Publication of material relating to legal proceedings

The Committee considered Clause 95 as drafted

"Question: That the Committee is content with Clause 95 put and agreed to".

Clause 96 Membership of Crown Court Rules Committee

The Committee noted the response from the Minister of Justice outlining his agreement that magistrates' court rules should be subject to the same level of scrutiny as other Court Rules but indicating it was unlikely that the necessary provision can be included in this Bill.

The Committee considered a proposed amendment by the Department of Justice to specify that the Attorney General's nominee shall be a practising member of the Bar or a practising solicitor.

The Committee considered Clause 96 as amended by the Department.

"Question: That the Committee is content with Clause 96 as amended as follows:

Clause 96, page 54, line 39, after 'Committee)' insert 'in paragraph (g) for "one other" substitute "a" '

Clause 96, page 55, line 1, leave out 'person' and insert 'practising member of the Bar of Northern Ireland or a practising solicitor'

Put and agreed to".

Clause 97 Membership of Court of Judicature Rules Committee

The Committee considered a proposed amendment by the Department of Justice to specify that the Attorney General's nominee shall be a practising member of the Bar or a practising solicitor.

The Committee considered Clause 97 as amended by the Department.

"Question: That the Committee is content with Clause 97 as amended as follows:

Clause 97, page 55, line 5, after 'Committee)' insert 'in paragraph (d) for "one other" substitute "a" '

Clause 97, page 55, line 7, leave out 'person' and insert 'practising member of the Bar of Northern Ireland or a practising solicitor'

Clause 97, page 55, line 12, leave out 'person' and insert 'barrister or solicitor'

Put and agreed to".

Clauses 98 – 101, Miscellaneous

The Committee considered Clauses 98 – 101 as drafted.

"Question: That the Committee is content with Clauses 98 - 101 put and agreed to".

Clause 102 Supplementary, incidental consequential and transitional provision, etc

The Committee considered Clause 102 as drafted.

"Question: That the Committee is content with Clause 102 put and agreed to".

Clause 103 Regulations and Orders

The Committee considered Clause 103 as amended by the Department as a result of Clause 82

"Question: That the Committee is content with Clause 82 as amended as follows:

Clause 103, page 61, line 18, leave out 'and' and insert 'to'
Clause 103, page 61, line 23, at end insert
'(3A) No order may be made?
(a) under section 82(5);

Put and agreed to".

Clause 104 – 108 Supplementary Provisions

The Committee considered Clauses 104 – 108 as drafted.

"Question: That the Committee is content with Clauses 104-108 put and agreed to".

Schedule 5 Transitional and Saving Provisions

The Committee considered Schedule 5 as drafted.

"Question: That the Committee is content with Schedule 5 put and agreed to".

Schedule 6 -Minor and Consequential Amendments

The Committee considered Schedule 6 as drafted.

"Question: That the Committee is content with Schedule 6 put and agreed to".

Schedule 7 Repeals

The Committee considered Schedule 7 as drafted.

"Question: That the Committee is content with Schedule 7 put and agreed to".

The Chairman thanked Geraldine Fee and Robert Crawford for the briefing and they left the meeting.

5.15 pm Amanda Patterson, Head of Public Protection and Billy Stevenson, Protection and Organised Crime Branch, joined the meeting.

Clause 14 Live Links

The Committee considered further clarification by the Department of Justice that the there is support for mental health patients in giving evidence by live links. The Committee raised the issues of whether support should automatically be provided and welcomed the undertaking from the Department that it is at the discretion of the judge whether or not support to issue a letter of guidance to register medical officers to help strengthen the provision.

The Committee considered Clause 14 as drafted.

"Question: That the Committee is content with Clause 14 put and agreed to".

Clause 34 Duty on Public Bodies to consider community safety implications in exercising duties

The Committee considered correspondence from by the Department of advising that it intends to provide a further a further draft amendment to this clause. The Committee agreed to consider this at the meeting on Tuesday 8 February 2011.

Agreed: The Committee agreed to return to this clause at its meeting on Tuesday 8 February 2011.

Schedule 1 paragraph 10

The Committee considered correspondence from the Department of Justice indicating that the Minister was not minded to amend schedule 1 paragraph 10 to reflect the proposal put by Mr Paul Givan and agreed to by the Committee to ensure that an elected member would be the Chairman of the PCSPs.

Agreed: The Committee agreed to request that a draft amendment Be prepared for consideration.

New Amendments on Sex Offender Notification

The Committee considered proposals from the Department to introduce provisions in the Justice Bill to meet the Supreme Court ruling that the indefinite notification requirements attached to sex offenders who have been sentenced to 30 months or more imprisonment were incompatible with Article 6 of the ECHR.

Agreed: The Committee agreed with the inclusion of the new provisions in the Bill.

New Amendments on Asset Law Recovery

The Committee considered proposals from the Department to bring forward an amendment to the Bill to give the Department power, with the consent of DFP, to allocate the proceeds of criminal assets remitted to the NI Consolidated Fund by NI Courts to prevent crime and reduce the fear of crime and to support the recovery of criminal assets.

Agreed: The Committee agreed with the inclusion of the new provisions in the Bill.

The Committee noted a paper summarising issues raised by organisations when providing evidence on the Bill but which did not strictly relate to the content of the Bill.

Agreed: The Committee agreed to consider further at the meeting on Tuesday 8 February 2011.

The Chairman thanked the officials for the briefing and they left the meeting.

The clause-by-clause consideration was recorded by Hansard

Agreed: The Committee agreed to return to the issue on Tuesday 8 February 2011.

Tuesday 8 February 2011
Room 21, Parliament Buildings

Present: Lord Morrow MLA (Chairman)
Mr Raymond McCartney MLA (Deputy Chairman)
Lord Browne MLA
Mr Thomas Buchanan MLA
Mr Paul Givan MLA
Mr David McNarry MLA
Mr Conall McDevitt MLA
Mr Alban Maginness MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

In Attendance: Mrs Christine Darrah (Assembly Clerk)
Mr Vincent Gribbin (Assistant Assembly Clerk)
Mr Joe Westland (Clerical Supervisor)

3.05pm The meeting commenced. in public session.

4. The Justice Bill - Formal Clause by Clause Consideration of Part 3 – Policing and Community Safety Partnerships - and Schedules 1 and 2

The Committee continued its clause-by-clause consideration of the Justice Bill covering Clauses 20 to 35 and Schedules 1 and 2 relating to PCSPs and DPCSPs.

3.28pm Gareth Johnston, Head of Justice Strategy Division, David Hughes, Head of Policing Policy and Strategy Division, Dan Mulholland, Policing Policy and Strategy Division and Nichola Creagh, Policing Policy and Strategy Division joined the meeting. to provide further information and clarification if necessary.

3.34 pm Mr McCartney left the meeting.

Clause 20

The Committee considered Clause 20 as drafted.

"Question: That the Committee is content with Clause 20 put and agreed to".

The Committee divided: Ayes 4; Noes 0; Abstain 2

AYES ABSTAIN
Lord Browne Ms Carál Ní Chuilín
Mr Alban Maginness Mr John O'Dowd
Mr David McNarry
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Clause 21

The Committee had voiced its support for an amendment to clause 21(d), as proposed by Include Youth in its written submission, to insert "and fully considering" after "to make arrangements for obtaining" to ensure meaningful consultation.

The Committee considered an amendment proposed by the Department to this effect in relation to Clauses 21 and 22.

The Committee considered Clause 21 as amended.

"Question: That the Committee is content with Clauses 21 and 22 as amended as follows:

Clause 21, page 17, line 26, at end insert 'to consider fully any views so obtained'

Clause 22, page 18, line 21, at end insert 'and to consider fully any views so obtained'

Put and agreed to".

The Committee divided: Ayes 4; Noes 0; Abstain 2

AYES ABSTAIN
Lord Browne Ms Carál Ní Chuilín
Mr Alban Maginness Mr John O'Dowd
Mr David McNarry
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Clauses 23 - 29

The Committee considered Clauses 23 to 29 as drafted.

"Question: That the Committee is content with Clauses 23 - 29 put and agreed to".

The Committee divided: Ayes 4; Noes 0; Abstain 2

AYES ABSTAIN
Lord Browne Ms Carál Ní Chuilín
Mr Alban Maginness Mr John O'Dowd
Mr David McNarry
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Clauses 30 - 33

The Committee considered Clauses 30 to 33 as drafted.

"Question: That the Committee is content with Clauses 30 to 33 put and agreed to".

The Committee divided: Ayes 3; Noes 0; Abstain 3

AYES ABSTAIN
Lord Browne Ms Carál Ní Chuilín
Mr Alban Maginness Mr John O'Dowd
Mr Conall McDevitt Mr David McNarry

Lord Morrow did not participate in the vote.

3.34 pm Mr McCartney rejoined the meeting.

Clause 34

The Committee had previously considered a proposed amendment from the Department to meet the concerns raised by Members regarding the statutory duty arising from Clause 34 and agreed to postpone its decision to allow Members more time to consider the issue.

3.40 pm Mr Givan joined the meeting.

3.51 pm Mr McNarry left the meeting.

The Department briefed the Committee on proposals for a further amendment in light of the continuing concerns of the Committee and its discussions with the Attorney General. The new amendment would require the Department to secure the approval of the Attorney General before issuing any guidance as to how a public body should comply with the duty.

The Department advised the Committee that the Attorney General was of the view the amendment should go further in two respects. The first was so that the duty of the public body was to the guidance which he has approval of and the second, to ensure that there is no wasteful litigation, was that the guidance will lay-out the extent to which failure by a public body to meet the guidance could be dealt with. The Department was still in the process of drawing up the draft amendment.

Agreed: The Committee agreed that, if the clause, even as amended still created a statutory duty on public bodies and this is not sufficiently qualified then it would not be acceptable. In the absence of a satisfactory amendment from the Department the Committee was of the view to reject the clause in its entirety.

The Committee considered Clause 34 as drafted.

"Question: That the Committee is not content with Clause 34 put and agreed to".

The Committee divided: Ayes 3; Noes 0; Abstain 4

AYES ABSTAIN
Mr Alban Maginness Lord Browne
Mr Paul Givan Mr Raymond McCartney
Ms Carál Ní Chuilín
Mr Conall McDevitt Mr John O'Dowd

Lord Morrow did not participate in the vote.

Clause 35

The Committee considered Clause 35 as drafted.

"Question: That the Committee is content with Clause 35 put and agreed to".

The Committee divided: Ayes 4; Noes 0; Abstain 3

AYES ABSTAIN
Lord Browne Mr Raymond McCartney
Mr Alban Maginness Ms Carál Ní Chuilín
Mr Paul Givan Mr John O'Dowd
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Schedule 1 Paragraphs 1 - 3

The Committee considered Schedule 1 paragraphs 1 - 3 as drafted.

"Question: That the Committee is content with Schedule 1 paragraphs 1- 3 put and agreed to".

The Committee divided: Ayes 4; Noes 0; Abstain 3

AYES ABSTAIN
Lord Browne Mr Raymond McCartney
Mr Paul Givan Ms Carál Ní Chuilín
Mr Alban Maginness Mr John O'Dowd
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Schedule 1 Paragraph 4

The Committee considered an amendment proposed by the Department providing for the payment to all members of Policing and Community Safety Partnerships which aimed to give the councils the scope to pay expenses to all members who do not receive them from their own organisation.

The Committee considered Schedule 1 paragraph 4 as amended.

"Question: That the Committee is content with Schedule 1 paragraph 4 as amended as follows:

Schedule 1, page 70, line 19, at end insert –

'Expenses

16A. The council may pay to members of a PCSP such expenses as the council may determine.'

Put and agreed to".

The Committee divided: Ayes 4; Noes 0; Abstain 3

AYES ABSTAIN
Lord Browne Mr Raymond McCartney
Mr Paul Givan Ms Carál Ní Chuilín
Mr Alban Maginness Mr John O'Dowd
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Schedule 1 Paragraphs 5 - 6

The Committee considered Schedule 1 paragraphs 5 - 6 as drafted.

"Question: That the Committee is content with Schedule 1 paragraphs 5- 6 put and agreed to".

The Committee divided: Ayes 4; Noes 0; Abstain 3

AYES ABSTAIN
Lord Browne Mr Raymond McCartney
Mr Paul Givan Ms Carál Ní Chuilín
Mr Alban Maginness Mr John O'Dowd
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

4.01 pm Mr McCartney left the meeting.

Schedule 1 Paragraph 7

The Committee considered two alternative proposals from the Department of Justice to amend schedule 1 paragraph 7. Proposal A was in line with a request from the Committee which would allow for a list of specified organisations for inclusion on every PCSP to be made by affirmative resolution. Proposal B, which was the Department's preferred option and which it believed met the Committee's concerns required the Joint Committee to issue a list of organisations which the PCSPs must actively and seriously consider for inclusion before designating organisations to be represented on the partnership, but retained the flexibility of individual PCSPs.

The Committee considered Schedule 1 paragraph 7 as amended by proposal A.

"Question: That the Committee is content with Schedule 1 paragraph 7 as amended as follows:

Schedule 1, page 66, line 4, at end insert

'(2A) The Department may by order designate organisations for the purposes of this paragraph.

(2B) No order may be made under sub-paragraph (2A) unless

(a) the Department has consulted each PCSP; and

(b) a draft of the order has been laid before and approved by a resolution of the Assembly.'

Schedule 1, page 66, line 5, after 'PCSP' insert 'or by an order under sub-paragraph (2A)'

Put and agreed to".

The Committee divided: Ayes 4; Noes 0; Abstain 2

AYES ABSTAIN
Lord Browne Ms Carál Ní Chuilín
Mr Paul Givan Mr John O'Dowd
Mr Alban Maginness
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Schedule 1 Paragraphs 8 and 9

The Committee considered Schedule 1 paragraphs 8 and 9 as drafted.

"Question: That the Committee is content with Schedule 1 paragraphs 8 and 9 put and agreed to".

The Committee divided: Ayes 4; Noes 0; Abstain 2

AYES ABSTAIN
Lord Browne Ms Carál Ní Chuilín
Mr Paul Givan Mr John O'Dowd
Mr Alban Maginness
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Schedule 1 Paragraphs 11 - 16

The Committee considered Schedule 1 paragraphs 11 - 16 as drafted.

"Question: That the Committee is content with Schedule 1 paragraphs 11 - 16 put and agreed to".

The Committee divided: Ayes 4; Noes 0; Abstain 2

AYES ABSTAIN
Lord Browne Ms Carál Ní Chuilín
Mr Paul Givan Mr John O'Dowd
Mr Alban Maginness
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Schedule 1 Paragraph 17

The Committee considered a proposed amendment by the Department to replace the word "may" with "shall" relating to the granting of finances to the council for funding of the PCSPs to ensure that the Department and Policing Board's commitment to funding the PCSPs is conveyed, and to include further detail on the actual mechanisms for funding PCSPs.

The Committee considered Schedule 1 paragraph 17 as amended.

"Question: That the Committee is content with Schedule 1 paragraph 17 as amended as follows:

Schedule 1, page 70, line 21, leave out paragraph 17 and insert

'17. (1) The Department and the Policing Board shall for each financial year make to the council grants of such amounts as the joint committee may determine for defraying or contributing towards the expenses of the council in that year in connection with PCSPs.

(2) A grant made by the Department or the Policing Board under this paragraph—

(a) shall be paid at such time, or in instalments of such amounts and at such times, and

(b) shall be made on such conditions, as the joint committee may determine.

(3) A time determined under sub-paragraph (2)(a) may fall within or after the financial year concerned.'

Put and agreed to".

The Committee divided: Ayes 4; Noes 0; Abstain 2

AYES ABSTAIN
Lord Browne Ms Carál Ní Chuilín
Mr Alban Maginness Mr John O'Dowd
Mr Paul Givan
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Schedule 1 Paragraphs 18 - 21

The Committee considered Schedule 1 paragraphs 18 - 21 as drafted.

"Question: That the Committee is content with Schedule 1 paragraphs 18 – 21 put and agreed to".

The Committee divided: Ayes 4; Noes 0; Abstain 2

AYES ABSTAIN
Lord Browne Ms Carál Ní Chuilín
Mr Paul Givan Mr John O'Dowd
Mr Alban Maginness
Mr Conall McDevitt

Lord Morrow did not participate in the vote

4.10 pm Mr O'Dowd left the meeting.

Schedule 2 Paragraphs 1 - 3

The Committee considered Schedule 2 paragraphs 1 - 3 as drafted.

"Question: That the Committee is content with Schedule 2 paragraphs 1 - 3 put and agreed to".

The Committee divided: Ayes 4; Noes 0; Abstain 1

AYES ABSTAIN
Lord Browne Ms Carál Ní Chuilín
Mr Paul Givan
Mr Alban Maginness
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Schedule 2 Paragraph 4

The Committee considered an amendment proposed by the Department providing for the payment to all members of Policing and Community Safety Partnerships which aimed to give the councils the scope to pay expenses to all members who do not receive them from their own organisation.

The Committee considered Schedule 2 paragraph 4 as amended.

"Question: That the Committee is content with Schedule 2 paragraph 4 as amended as follows:

Schedule 2, page 79, line 21, at end insert –

'Expenses

16A. The council may pay to members of a DPCSP such expenses as the council may determine.

Put and agreed to".

The Committee divided: Ayes 4; Noes 0; Abstain 1

AYES ABSTAIN
Lord Browne Ms Carál Ní Chuilín
Mr Alban Maginness
Mr Paul Givan
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Schedule 2 Paragraphs 5 - 6

The Committee considered Schedule 2 paragraphs 5 - 6 as drafted.

"Question: That the Committee is content with Schedule 2 paragraphs 5 - 6 put and agreed to".

The Committee divided: Ayes 4; Noes 0; Abstain 1

AYES ABSTAIN
Lord Browne Ms Carál Ní Chuilín
Mr Alban Maginness
Mr Paul Givan
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Schedule 2 paragraph 7

The Committee considered two alternative proposals from the Department of Justice to amend schedule 2 paragraph 7. Proposal A was in line with a request from the Committee which would allow for a list of specified organisations for inclusion on every PCSP to be made by affirmative resolution. Proposal B, which was the Department's preferred option and which it believed met the Committee's concerns required the Joint Committee to issue a list of organisations which the PCSPs must actively and seriously consider for inclusion before designating organisations to be represented on the partnership, but retained the flexibility of individual PCSPs.

The Committee considered Schedule 2 paragraph 7 as amended by proposal A.

The Committee considered Schedule 2 paragraph 7 as amended.

"Question: That the Committee is content with Schedule 2 paragraph 7 as amended as follows:

Schedule 2, page 74, line 36, at end insert

'(2A) The Department may by order designate organisations for the purposes of this paragraph.

(2B) No order may be made under sub-paragraph (2A) unless

(a) the Department has consulted each DPCSP; and

(b) a draft of the order has been laid before and approved by a resolution of the Assembly.'

Schedule 2, page 74, line 37, after 'DPCSP' insert 'or by an order under sub-paragraph (2A)'

Put and agreed to".

The Committee divided: Ayes 4; Noes 0; Abstain 1

AYES ABSTAIN
Lord Browne Ms Carál Ní Chuilín
Mr Alban Maginness
Mr Paul Givan
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Schedule 2 paragraphs 8 and 9

The Committee considered Schedule 2 paragraphs 8 and 9 as drafted.

"Question: That the Committee is content with Schedule 2 paragraphs 8 and 9 put and agreed to".

The Committee divided: Ayes 4; Noes 0; Abstain 1

AYES ABSTAIN
Lord Browne Ms Carál Ní Chuilín
Mr Paul Givan
Mr Alban Maginness
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Schedule 2 Paragraphs 11 - 16

The Committee considered Schedule 2 paragraphs 11 - 16 as drafted.

"Question: That the Committee is content with Schedule 2 paragraphs 11 - 16 put and agreed to".

The Committee divided: Ayes 4; Noes 0; Abstain 1

AYES ABSTAIN
Lord Browne Ms Carál Ní Chuilín
Mr Paul Givan
Mr Alban Maginness
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Schedule 2 paragraph 17

The Committee considered a proposed amendment by the Department to replace the word "may" with "shall" relating to the granting of finances to the council for funding of the PCSPs to ensure that the Department and Policing Board's commitment to funding the PCSPs is conveyed, and to include further detail on the actual mechanisms for funding PCSPs.

The Committee considered Schedule 2 paragraph 17 as amended.

"Question: That the Committee is content with Schedule 2 paragraph 17 as amended as follows:

Schedule 2, page 79, line 23, leave out paragraph 17 and insert

'17.(1) The Department and the Policing Board shall for each financial year make to the council grants of such amounts as the joint committee may determine for defraying or contributing towards the expenses of the council in that year in connection with DPCSPs.

(2) A grant made by the Department or the Policing Board under this paragraph—

(a) shall be paid at such time, or in instalments of such amounts and at such times, and

(b) shall be made on such conditions, as the joint committee may determine.

(3) A time determined under sub-paragraph (2)(a) may fall within or after the financial year concerned.'

Put and agreed to".

The Committee divided: Ayes 4; Noes 0; Abstain 1

AYES ABSTAIN
Lord Browne Ms Carál Ní Chuilín
Mr Paul Givan
Mr Alban Maginness
Mr Conall McDevitt

Lord Morrow did not participate in the vote.

Schedule 2 Paragraphs 18 - 19

The Committee considered Schedule 2 paragraphs 18 - 19 as drafted.

"Question: That the Committee is content with Schedule 2 paragraphs 18 – 19 put and agreed to".

The Committee divided: Ayes 4; Noes 0; Abstain 1

AYES ABSTAIN
Lord Browne Ms Carál Ní Chuilín
Mr Paul Givan
Mr Alban Maginness
Mr Conall McDevitt

Lord Morrow did not participate in the vote

4.08pm The meeting was suspended.

4.16pm The meeting resumed.

Present: Lord Morrow MLA (Chairman)
Lord Browne MLA
Mr Alban Maginness MLA
Mr Conall McDevitt
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

In Attendance: Mrs Christine Darrah (Assembly Clerk)
Mr Vincent Gribbin (Assistant Assembly Clerk)
Mr Joe Westland (Clerical Supervisor)

The Chairman thanked David Hughes, Dan Mulholland and Nichola Creagh and they left the meeting.

5. Consideration of Clauses Part 7 - Legal Aid - Clauses 85 and 89

4.16pm Robert Crawford, Head of Public Legal Services Division and John Halliday, Criminal Legal Aid Policy Advisor joined the meeting. to provide further information and clarification if necessary.

The Committee considered a proposed amendment from the Department in relation to clause 85 on Legal Aid. Which would provide for affirmative resolution when and if the Criminal Legal Aid means test was enacted for the first time but that subsequent amendments to the means test would be by negative resolution. The Department indicated that its proposed amendment to Clause 85 would bring it in line with the provisions at Clause 89.

The Committee accepted that the proposed amendment from the Department satisfied its requirements.

4.38 pm Mr Givan joined the meeting.

4.38 pm Mr Buchanan joined the meeting.

Clause 85

The Committee considered Clause 85 as amended by the Department.

"Question: That the Committee is content with Clause 85 as amended by the Department as follows:

Clause 85, page 49, line 34, at end insert

'(4) In Article 36 (rules as to legal aid in criminal cases) for paragraph (4) substitute

"(4) Except as provided by paragraph (5), rules under this Article are subject to negative resolution.

(5) The rules to which paragraph (6) applies shall not be made unless a draft of the rules has been laid before and approved by a resolution of the Assembly.

(6) This paragraph applies to the first rules under this Article which are

(a) made after the coming into operation of section 85 of the Justice Act (Northern Ireland) 2011;

and

(b) contain any provision made by virtue of Article 31, as substituted by that section.".'

Put and agreed to".

Clause 89

The Committee considered Clause 89 as drafted.

"Question: That the Committee is content with Clause 89 as drafted put and agreed to".

The Chairman thanked Robert Crawford and John Halliday for the briefing and they left the meeting.

5. Consideration of New Provisions relating to Court Funds

4.30pm Geraldine Fee, Head of Criminal Policy and Legislation Division, Michael Kelly and Richard Ronaldson joined the meeting. to provide further information and clarification if necessary.

The Committee considered proposed provisions relating to court funds that the Department intended to introduce as amendments at consideration stage.

Agreed: The Committee agreed that the principle of using a stockbroker to provide advice on the most appropriate investments and to review existing investments is of benefit to clients and that the cost should be met by those who avail of those services rather than the public purse. It was therefore content to support the proposed amendment.

The Chairman thanked Geraldine Fee, Michael Kelly and Richard Ronaldson for the briefing and they left the meeting.

6. Consideration of New Provisions relating to Solicitors' Rights of Audience

4.42pm Robert Crawford, Head of Public Legal Services Division and Maria Dougan, NICTS joined the meeting. to provide further information and clarification if necessary.

The Committee considered proposed new provisions in relation to Solicitors Rights of Audience that the Department intended to introduce as amendments at consideration stage.

Agreed: The Committee agreed that it was content with the principle of extending solicitors' rights of audience but did not have sufficient time before the Committee Stage of the Bill ended to consider the detail of the proposed provisions.

The Chairman thanked Robert Crawford and Maria Dougan for the briefing and they left the meeting.

4 cont'd. The Justice Bill - Formal Clause by Clause Consideration of Part 3 – Policing and Community Safety Partnerships - and Schedules 1 and 2

The Committee continued its clause by clause consideration of Part 3 of the Justice Bill and Schedules 1 and 2.

Schedule 1 Paragraph 10

The Committee noted a response from the Minister indicating that he was not minded to make an amendment to ensure that the Chair of the PCSP will be an elected member.

The Committee considered a draft amendment to provide for the appointment of the Chairs and Vice Chairs of the PCSPs in the same manner as the appointment of the Chair and Vice Chair of the Policing Chair.

"Question: That the Committee is content with Schedule 1 paragraph 10 as amended as follows:

Schedule 1, page 68, line 4, leave out sub-paragraphs 10 (4) and (5) and insert:-

'10.—(4) At any time thereafter, there shall be—

(a) a chair appointed by the council from among the political members; and

(b) a vice-chair elected by the independent members from among such members.

(5) In appointing to the office of chair, the council shall ensure that, so far as is practicable—

(a) a person is appointed to that office for a term of 12 months at a time or, where that period is shorter than 18 months, for a period ending with the reconstitution date next following that person's appointment;

(b) that office is held in turn by each of the four largest parties represented on the council immediately after the last local general election.'

Put and agreed to".

Schedule 2 Paragraph 10

The Committee considered that Schedule 2 paragraph 10 should be amended to reflect the amendment made at Schedule 1 paragraph 10.

The Committee considered Schedule 2 paragraph 10 as amended.

"Question: That the Committee is content with Schedule 2 paragraph 10 as amended as follows:

Schedule 2, page 76, line 35, leave out sub-paragraphs 10 (4) and (5) and insert:-

'10.—(4) At any time thereafter, there shall be—

(a) a chair appointed by the council from among the political members; and

(b) a vice-chair elected by the independent members from among such members.

(5) In appointing to the office of chair, the council shall ensure that, so far as is practicable—

(a) a person is appointed to that office for a term of 12 months at a time or, where that period is shorter than 18 months, for a period ending with the reconstitution date next following that person's appointment;

(b)that office is held in turn by each of the four largest parties represented on the council immediately after the last local general election.'

Put and agreed to".

8. Justice Bill – Other Issues

The Committee noted a paper summarising issues raised by organisations in evidence submitted on the Justice Bill but which did not strictly relate to the content of the Bill.

9. Consideration of Draft Bill Report

The Committee noted that copies of the draft report on the Justice Bill would be circulated after the meeting

Agreed: The Committee agreed that the meeting scheduled for Thursday 10 February would commence at 1.30pm. With the first agenda item to be consideration of the draft report on the Justice Bill.

10. Bill Report draft appendices

The Committee considered a list of the contents of the appendices and submissions for inclusion in the Report on the Justice Bill.

Agreed: The Committee agreed that it is content with the contents of the appendices and submissions.

Thursday 10 February 2011
Room 29, Parliament Buildings

Present: Lord Morrow MLA (Chairman)
Mr Raymond McCartney MLA (Deputy Chairman)
Lord Browne MLA
Mr Paul Givan MLA
Mr Alban Maginness MLA
Mr Conall McDevitt MLA
Mr David McNarry MLA
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

In Attendance: Mrs Christine Darrah (Assembly Clerk)
Mrs Roisin Donnelly (Assistant Assembly Clerk)
Mr Vincent Gribbin (Assistant Assembly Clerk)
Mr Joe Westland (Clerical Supervisor)
Mr Kevin Marks (Clerical Officer)

Apologies: Lord Empey MLA

1.37pm The meeting commenced. in public session.

4. Consideration of the Bill Report

The Committee considered a draft Report on the Justice Bill. No amendments were proposed.

5.10pm The meeting was suspended.

5.33pm The meeting resumed.

Present: Lord Morrow MLA (Chairman)
Mr Raymond McCartney MLA (Deputy Chairman)
Lord Browne MLA
Mr Paul Givan MLA
Mr Alban Maginness MLA
Mr Conall McDevitt
Ms Carál Ní Chuilín MLA
Mr John O'Dowd MLA

In Attendance: Mrs Christine Darrah (Assembly Clerk)
Mrs Roisin Donnelly (Assistant Assembly Clerk)
Mr Vincent Gribbin (Assistant Assembly Clerk)
Mr Joe Westland (Clerical Supervisor)
Mr Kevin Marks (Clerical Officer)

4. cont'd Consideration of the Bill Report

The Committee considered a draft Executive Summary for inclusion in the Report on the Justice Bill. No amendments were proposed.

The Committee considered 2 amendments to correct drafting errors at paragraphs 763 and 764 of the draft report.

Agreed: The Committee agreed that the amendments should be incorporated into the report.

The Committee considered the draft Report on the Justice Bill.

Title Page, Committee Membership and Powers, and Contents Page

The Committee considered the Title page, Committee Membership and Powers, and Contents page of the Report.

"Question: That the Committee is content with the Title page, Committee Membership and Powers, and Contents page as drafted put and agreed to".

Executive Summary

The Committee considered the Executive Summary of the report.

"Question: That the Committee is content with the Executive Summary (paragraphs 1 to 33) as drafted put and agreed to".

List of abbreviations and acronyms

The Committee considered the List of abbreviations and acronyms used in the report.

"Question: That the Committee is content with the List of abbreviations and acronyms as drafted put and agreed to".

Introduction

The Committee considered the Introduction section of the report.

"Question: That the Committee is content with the Introduction (paragraphs 1 to 16) as drafted put and agreed to".

Key Issues

The Committee considered the Key Issues section of the report.

"Question: That the Committee is content with the Key Issues section of the report (paragraphs 17 to 154) as drafted put and agreed to".

Consideration of the Bill by the Committee

The Committee considered the Consideration of the Bill by the Committee section of the report.

"Question: That the Committee is content with the Consideration of the Bill by the Committee section of the report (paragraphs 155 to 605) as drafted put and agreed to".

New Provisions to be introduced into the Bill by the Department

The Committee considered the New Provisions to be introduced into the Bill by the Department section of the report.

"Question: That the Committee is content with the 'New Provisions to be introduced into the Bill by the Department' section of the report (paragraphs 606 to 639) as drafted put and agreed to".

Clause by Clause consideration of the Bill

The Committee considered the Clause by Clause consideration of the Bill section of the report.

"Question: That the Committee is content with the 'Clause by Clause consideration of the Bill section of the report (paragraphs 640 to 771) as amended put and agreed to".

The Chairman advised that copies of the draft Minutes of Proceeding for the meeting on 8 February would be circulated to Members.

Agreed: The Committee agreed to contact the clerk with any amendments and was content that the Chairman then agrees an extract of the minutes to allow them to be included in the printed report.

Agreed: The Committee agreed that it was content for the Chairman to approve an extract of today's Minutes of Proceedings to allow them to be included in the printed report.

Agreed: The Committee agreed to order the Report on the Justice Bill (NIA 41/10/11R) to be printed.

Agreed: The Committee agreed that an electronic copy of the Bill Report should be sent to all organisations and individuals who provided evidence to the Committee on the Bill.

The Chairman thanked the Committee team, Hansard and all other Assembly staff who assisted the Committee during its scrutiny of the Bill.

[EXTRACT]

Appendix 2

Minutes of Evidence

Appendix 2: Minutes of Evidence

21 October 2010 Principles of the Justice Bill

  • Department of Justice

18 November 2010 Sports Law

  • Department of Justice and Department of Culture, Arts and Leisure
  • Sport NI
  • Ulster Rugby and Ulster Rugby Supporters' Club
  • Ulster GAA
  • Irish Football Association
  • Amalgamation of Official Northern Ireland Supporters' Club

25 November 2010 Victims and Witnesses and Live Links

  • Department of Justice
  • Victim Support Northern Ireland
  • MindWise

2 December 2010 Legal Aid, Miscellaneous and Supplementary Provisions

  • Department of Justice
  • Bar Council of Northern Ireland
  • Women's Aid Federation Northern Ireland
  • Law Society of Northern Ireland

9 December 2010 Treatment of Offenders and Alternatives to Prosecution

  • Department of Justice
  • Probation Board for Northern Ireland
  • Northern Ireland Association for the Care and Resettlement of Offenders
  • Include Youth

16 December 2010 Policing and Community Safety Partnerships

  • Department of Justice
  • Antrim Community Safety Partnership, Antrim District Policing Partnership and Antrim Borough Council
  • Ballymoney Community Safety Partnership
  • Belfast City Council
  • Coleraine Community Safety Partnership
  • Coleraine District Policing Partnership
  • Craigavon Community Safety Partnership
  • Dungannon and South Tyrone Borough Council
  • Extern
  • Include Youth
  • Larne Borough Council
  • Limavady Borough Council
  • Magherafelt Community Safety Partnership
  • Magherafelt District Policing Partnership
  • Moyle District Policing Partnership
  • Moyle Community Safety Partnership
  • Newtownabbey Borough Council
  • Northern Ireland Association for the Care and Resettlement of Offenders
  • Northern Ireland Local Government Association
  • Northern Ireland Policing Board
  • Probation Board for Northern Ireland
  • Strabane Community Safety Partnership
  • Strabane District Policing Partnership

11 January 2011 Briefing from the Police Service of Northern Ireland and Department of Justice Response.

Briefing by the Department of Justice on the Justice Bill Equality Impact Assessment.

13 January 2011 Informal Clause-by-Clause Consideration of Parts 1 and 2 of the Justice Bill.

Briefing by the Northern Ireland Human Rights Commission and Department of Justice Response.

18 January 2011 Briefing from the Attorney General on Clause 34.

Informal Clause-by-Clause Consideration of Part 3 of the Justice Bill.

20 January 2011 Informal Clause-by-Clause Consideration of Schedules 1 and 2 of the Justice Bill.

Formal Clause-by-Clause Consideration of Parts 1 and 2 of the Justice Bill.

25 January 2011 Informal Clause-by-Clause Consideration of Part 4 and Schedule 3 of the Justice Bill.

27 January 2011 Informal Clause-by Clause Consideration of Part 5 of the Justice Bill.

Further Informal Clause-by-Clause Consideration of Part 3 and Schedules 1 and 2 of the Justice Bill.

1 February 2011 Informal Clause-by-Clause Consideration of Part 6 and Part 7 and Schedule 4 of the Justice Bill.

Formal Clause-by-Clause Consideration of Part 4 and Schedule 3 of the Justice Bill.

3 February 2011 Briefing by the Department of Justice on new provisions relating to Court Funds and Solicitors' Rights of Audience and briefing from the Law Society (NI) on Solicitors' Rights of Audience.

Formal Clause-by-Clause Consideration of Parts 5, 6, 7, 8 and 9 and Schedules 4 to 7 of the Justice Bill.

8 February 2011 Formal Clause-by-Clause Consideration of Part 3 and Schedules 1 and 2 of the Justice Bill.

21 October 2010

Members present for all or part of the proceedings:

Lord Morrow (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Lord Browne
Mr Tom Elliott
Mr Paul Givan
Mr Conall McDevitt
Mr Alban Maginness
Mr John O'Dowd

Witnesses:

Mr Gareth Johnston
Mr Tom Haire

Department of Justice

Mr John Halliday
Ms Laurene McAlpine

Northern Ireland Courts and Tribunals Service

1. The Chairperson (Lord Morrow): I welcome to the Committee Gareth Johnston, the deputy director of the justice strategy division; Tom Haire, head of criminal law branch and Bill manager for the Justice Bill; John Halliday, a criminal legal aid policy adviser; and Laurene McAlpine, head of civil policy and legislative division. Mr Johnston will brief the Committee, and that will be followed by members' questions.

2. Mr Gareth Johnston (Department of Justice): Thank you for the opportunity to provide the Committee with an overview of the Justice Bill as introduced to the Assembly. Having received approval from the Executive on 7 October to introduce the Bill, the Speaker's Office confirmed the legislative competence of the Assembly to deal with the Bill and approved it for introduction. The Bill was formally introduced on Monday of this week by David Ford.

3. Given Mr Ford's strong wish to see the Bill enacted within the current Assembly mandate and the tight timescale that that brings with it, I am particularly grateful that the Committee is providing us with this early opportunity to brief it on the Bill as introduced. My team has been working closely with the Committee Clerk and the staff of the Committee office in developing a work programme for the Bill. I thank Christine Darrah for the excellent support that she has been providing in that regard. I understand that the Committee took the positive step yesterday of advertising and calling for evidence on the Bill ahead of Second Stage. We are grateful that the Committee has acted so quickly in that area. In turn, we are committing to do all that we can to facilitate your programme.

4. Before I present on the Bill, I will mention the team. Many of you will know who most of us are from previous presentations to the Committee, but I am conscious that there have been changes in Committee membership. I head the justice strategy division in the Department of Justice, which is responsible for justice policy and legislation. Tom Haire is the head of my criminal law branch and manager for the Bill process. My other two colleagues, Laurene McAlpine and John Halliday, are from the Northern Ireland Courts and Tribunals Service. Laurene deals with civil policy and legislation, and John deals with criminal legal aid. Although I will present the Bill as a collective piece, I know that colleagues will want to contribute in their respective areas, and Tom will keep us all right. If there are any elements that we cannot deal with today, we will be very willing, as usual, to come back to the Committee in writing.

5. From the negotiations on the devolution of policing and justice powers, Committee members will be well aware that the delivery of a justice Bill emerged as a key goal for the new Department of Justice. It was mentioned specifically in the Hillsborough Castle Agreement and has been reflected in the addendum to the Programme for Government, which was debated and approved by the Assembly in the past couple of weeks. The Minister of Justice sees legislative reform as an important part of devolution of justice and of his overall reform programme for the justice system, which is not, by any means, limited to legislative reform. The bigger picture about it is in the Programme for Government, but legislation will continue to form an important part.

6. Consultation has been a key part of the Justice Bill. We have an equality impact assessment out for consultation, and that will close at the time that the Committee for Justice begins formally to scrutinise the Bill. Therefore, it is important that the results of that consultation will be available to the Committee as it begins that scrutiny. The Committee has been an important contributor to the development of the Bill, helping to finalise some of our policy proposals. I will give a couple of specific examples. We increased the maximum amount of the offender levy to £50 in recognition of the Committee's concern that those convicted of serious offences that cause the greatest harm to victims should pay substantially more than minor offenders. We also allowed for the widening of the circumstances in which a fixed penalty notice for shoplifting could be issued to allow for a shopkeeper to be recompensed for goods that could not be re-sellable. We did that on the basis of a point that the Committee made. Based on helpful comments that were raised in Committee and at follow-up meetings, we agreed to look again at items such as how sectarianism might be accommodated or defined in our sports law proposals. We will come back to that point when we present in more detail on that part of the Bill.

7. Second Stage is coming up, when the broad principles of the Bill will be debated in the Assembly. It might be worth my setting the Bill in that context and looking at the overall terms of what it is intended to do. The Bill has a rather lengthy long title that reflects its various themes and purposes, but, to sum up, it developed from several needs to make changes to Northern Ireland's justice system: first, a desire in the justice system to do its business better; secondly, to deliver better and enhanced services to victims and witnesses; thirdly, the need to improve public safety and build stronger and safer communities; fourthly, a desire to reduce costs, particularly the costs of the legal aid system; and, fifthly, a desire to improve access to justice.

8. With all that as background, the Bill has three main themes: improving services and facilities for victims and witnesses, which Part 1 of the Bill covers; improving community safety arrangements and tackling some specific problem areas, such as sports law; and allowing the system to do its business better through improving the justice system and reducing costs. It also deals with a range of miscellaneous improvements and adjustments. Committee members will be aware that the Bill now has nine major Parts, 108 clauses and seven schedules. I am told that it may be the largest Bill that the Assembly has yet considered.

9. I will now move on to the detail under those three headings, the first of which deals with victims and witnesses. The headline for the Bill is the introduction of the offender levy, which is intended to make offenders more accountable for the harm that they cause by requiring them to make a financial contribution to support services for victims of crime. The levy will be imposed on adult offenders across a range of court disposals and non-court penalties. It will be set at a range of tiered rates of between £5 and £50, propionate to the disposal or penalty given, with the rate of £5 being added to a fixed penalty and £50 for those who receive longer sentences in the Crown Court. The levy will be used to fund directly a victims of crime fund, and, in full operation, it could realise £500,000 a year. The allocation of the fund will be prioritised by the victim and witness task force.

10. Alongside those provisions are new provisions for vulnerable and intimidated witnesses. Those provisions will assist witnesses through special measures to enable them to give their best possible evidence in criminal proceedings. The concept of special measures is well established and a series of them have been in place for the past 10 years. However, the Bill, amongst other things, will raise the upper age limit under which a young witness is automatically eligible for special measures from 17 years old to 18 years old; provide automatic entitlement for adult complainants of sexual offences to give video-recorded evidence in chief; and allow intermediaries to be made available to vulnerable defendants with communication difficulties to allow them to tell their story and give their evidence in court.

11. The definition of vulnerable accused persons who are able to avail themselves of video links to give evidence will be extended in the Bill to include those with physical disabilities and disorders. The Bill will also allow live-link connections between courts and psychiatric hospitals, which will reduce the need to move offenders around, some of whom may be quite dangerous.

12. Under the heading of community safety, the Bill will introduce provisions for new policing and community safety partnership arrangements that will provide a more joined-up approach with better local deliverability and accountability that is targeted on real issues of local concern. The Bill will also integrate the roles of the community safety partnerships (CSPs) and the district policing partnerships (DPPs) to create a single partnership for each council area. Those partnerships will comprise councillors, independent members and representatives of the voluntary and statutory organisations that are designated in legislation. We hope that that restructuring will allow us to make better use of the resources that are available for partnership working and, therefore, direct more of the funding to projects and initiatives on the ground, rather than to the administrative costs of two separate classes of partnerships.

13. Also in that area, the new sports law provisions in the Bill are aimed at promoting good behaviour amongst sports fans in Northern Ireland. They will apply variously to association football, Gaelic games and rugby union, but not all in the same way, and the aim is to focus on areas where the need arises — either on the grounds of safety or to deter disorder. New offences of offensive chanting, missile throwing and unauthorised pitch incursions will be created in the Bill, together with offences for possessing alcohol or drinks containers, possessing fireworks or flares and of being drunk at a match. Finally, under the sports law heading, ticket-touting bans will be imposed for certain association football matches, and courts will have the power to impose football banning orders for certain association football matches in Northern Ireland to prevent violence and disorder.

14. A range of existing sentencing powers are also being adjusted to address problems caused by gaps or inconsistencies in the existing law. In particular, there will an increase in the maximum penalty for common assault from three months' imprisonment to six months' imprisonment. When increasing that tariff, we were particularly mindful of the assaults that we see on healthcare personnel, and of the need to provide Magistrates' Courts with stiffer penalties that can be used even if an assault is relatively minor. We are also increasing the maximum penalty for the offence of possessing a weapon — a knife on school premises, for example. The maximum penalty will be increased to four years' imprisonment, which reflects the seriousness with which knife crime is being taken. There is also an enhancement of powers aimed at sex offenders living outside the jurisdiction who breach their licence conditions.

15. We have provisions around victims and community safety. The final category is around the efficiency and effectiveness of the justice system, particularly in respect of new alternatives to prosecution powers with new diversionary disposals, wider fixed penalty notice powers and new conditional cautions. The fixed penalty notices available for first-time or non-habitual offenders can be applied by the police without direction from the Public Prosecution Service (PPS). They would be a means of discharging liability for the offence by paying a fixed penalty within 28 days. The penalty will be fixed at either £40 or £80 and will depend on the offence. The eligible offences, which are listed in the Bill, are simple drunk; breach of the peace; disorderly behaviour; obstructing police; indecent behaviour, in the sense of urination in the street, not sexual indecency; and criminal damage up to £200 pounds. There will be guidance around that. There will also be guidance around petty shoplifting, which will limit it to first-time offences up to £100 in value. It is intended that that will be a means of dealing with petty shoplifting, without stores having to produce people to attend court and the associated expenses.

16. Conditional cautions are the other element of alternatives to prosecution. They are cautions in which prosecutors attach rehabilitative or reparative conditions with which the offender must comply. If they do not, they could face reconsideration of the prosecution and the case can proceed to court.

17. There are legal-aid adjustments. I know that the Committee has been briefed on the policy behind those. They aim to improve legal aid legislation so that those who can afford to pay for their own defence do so. They also fill small gaps in existing laws. The major introduction would be a rule-making power for a means test for the granting of criminal legal aid. That means that we could, in the future, bring in rules on means-testing and on recovering costs for legal-aided defendants who are convicted.

18. There is also the power to remove the restriction on the Northern Ireland Legal Services Commission from establishing or funding services under litigation funding agreements. That is in civil law. If the Committee wants us to say something more about that, we can do so.

19. I have spoken about what is included in the Bill. I should, perhaps, say something about a few areas that we previously discussed with the Committee but that have not found their way into the Bill. I recognise that you will be interested in those and in a few other areas that have been adjusted since last we briefed you. At the start of our proposals, we said that we were presenting something of a menu of proposals and that it might well be that it would not be possible to legislate on all of them this time around. That has proved to be the case in a few instances, partly because of time constraints, partly because of the scope of an already very large Bill, and also partly because of some issues about legislative competence that have arisen as we considered the detail of the provisions.

20. We indicated at an early stage that it would be unlikely to prove possible to bring forward powers to reform court boundaries, and I think that our analysis on that has proved correct. The sheer scale of the drafting of those provisions could have resulted in a Bill in their own right. It is still our intention to consider a reform of court boundaries at a later date. There would be advantages there, but we had to prioritise other things for the current Bill.

21. We have not brought forward our proposals for public prosecutors to be able to issue summonses or for a new public prosecutor fine. In the case of the former, we are looking at it again in the context of a wider Criminal Justice Board-led case initiation reform programme to improve the speed of justice. So, we have not lost sight of the issue. For the latter — the public prosecutor fines and alternatives to prosecution — given the time available, we have had to prioritise the fixed penalty notices and the conditional cautions. That is not to say that we would not come back to prosecutorial fines in the next piece of legislation.

22. We have also removed our previous proposals for court funds powers and the conferring of rights of audience on solicitor advocates in the higher courts. We are continuing to work with the Attorney General to address some concerns he has around Assembly competence in those areas. If we can address those, we would propose to bring provisions back as amendments at Consideration Stage. We will flag that to the Committee as soon as we can.

23. We had also discussed with the Committee cross-border powers around sex offenders, but there has been a recent Supreme Court of the United Kingdom judgement, I think it was, or the House of Lords, as it used to be, which has impacted on the proposals that we hope to bring. We are pursuing that with the other jurisdictions to see how we can do something about cross-border sex offender powers that is in keeping with that new House of Lords judgement.

24. There are also a few smaller issues. Largely for technical reasons, we have removed our proposals on the Upper Tribunal for judicial review, on the power of inspection of property in criminal cases and the proposal for certain judicial salaries to be charged to the Consolidated Fund.

25. I will talk now about where we have changed proposals. As I mentioned about the offender levy, we have created the two-tier rate on immediate custody sentences. That was in response to concerns from the Committee. In response to issues that were raised at consultation about remission of the levy in certain circumstances, when, for example, a person was going to have genuine difficulty in affording it and its imposition would create more problems, we have introduced a power to remit the levy in limited circumstances.

26. On treatment of offenders, we have extended our public protection sentence powers, the extended custodial sentences and the indeterminate custodial sentence to cover hijacking, so that someone who was convicted of hijacking could receive one of those public protection sentences.

27. We have removed a couple of offences from the original list for fixed penalty notices that we covered with the Committee. It still includes all those that I mentioned earlier, but we have removed selling alcohol to a minor and buying alcohol for a minor. The reason for that is that the Department for Social Development (DSD) has got a wider strategy around alcohol sales that will be coming in the Licensing and Registration of Clubs (Amendment) Bill, and we did not want to create something that went against the intentions and purposes of that Bill. In any event, our proposals would have covered only a handful of cases each year.

28. We have been conscious of points that were raised during the consultation and by the Committee on sports law provisions. We have removed the alcohol restrictions on private viewing facilities as we were told they would adversely impact on the sports concerned. We have also removed a provision that would have allowed football banning orders to apply retrospectively, on the grounds that that would have been contrary to constitutional law, and a provision that would have applied football banning orders to matches outside Northern Ireland. We have also removed the civil procedure route through which a football banning order could be imposed without a criminal conviction. There were various views on that. However, they can still be imposed by courts after a football-related criminal conviction, and we had always expected that those would be the majority of cases.

29. Members will note clause 34. It places a duty on public bodies to consider the crime, antisocial behaviour and community safety implications of exercising their duties and to have regard to any guidance issued by the Department of Justice.

30. As a result of the Bill, the Department will have a statutory obligation to consult the other Northern Ireland Departments in the preparation of that guidance. It is important to underpin the new policing and community safety partnerships with that statutory basis for co-operation. The Executive agreed to the inclusion of that clause but with the caveat that the position would be brought back to them after the Committee's consideration. They wanted to give it further consideration and ensure that any consequences of having that statutory duty were fully justified. Therefore, we will particularly welcome the Committee's views on clause 34 as it scrutinises the Bill.

31. I mentioned that there are a number of amendments that we envisage that we may wish to bring to Consideration Stage and to the Committee's attention. As always with a large Bill, there are aspects that are not quite finally settled when it is published, and Consideration Stage provides the opportunity to introduce those, which I will flag. First are the provisions on solicitor advocates and court funds, on which we will try to secure some amendments that deal with the concerns about legislative competence. Second are the sex offender powers that I mentioned and which would require registered offenders from other jurisdictions to report to the PSNI.

32. Third is the element that we removed from the sports law provisions, which was about football banning orders for fans travelling to matches outside Northern Ireland. We think that there is a reason for having it, but drafting it in a way that met legislative competence requirements was a bit difficult. We are continuing to explore that, and we hope to bring back a provision as an amendment. There is also the possibility that we may come back with an amendment extending the use of live video links, and the Committee will have noted what I have said about clause 34 and further Executive consideration. We will give the Committee as early notice as possible if there are any proposals for amendments.

33. I am sorry that I have spoken at even greater length than I normally do in front of the Committee, but this is a substantial Bill, and I wanted to ensure that we summed it up accurately. We are very pleased, and the Minister is particularly pleased, to be in a position to present the Bill to the Committee six months after devolution of justice. We are conscious of the specific commitment in the Hillsborough Castle Agreement, and we believe that the Bill contributes across a wide range of the agreement's undertakings.

34. It improves our diversionary alternatives to prosecution, and it improves our services to victims and witnesses. It provides for more efficient justice systems and improves and targets our legal aid provision. It should have both strategic significance and operational importance for the justice system in Northern Ireland. It may not resolve all of the issues that the justice system is facing, and it does not try to, but we hope that it is a significant step in the right direction. The Minister is very aware of the important role that the Committee will play in the Bill, and we are pleased to present it for your consideration.

35. The Chairperson: Thank you, Mr Johnston.

36. Why did it take so long to discover that there was a lack of competency in relation to the issues that you talked about?

37. Mr Johnston: We would have taken our own legal advice on those issues, but, on issues of competence, it is the Attorney General who has the final responsibility to provide advice to the Minister. The Attorney General's office has raised a number of issues. I do not think that they are all insuperable issues, but it will take a little more time to work through some of those with the Attorney General's office.

38. The Chairperson: Do you accept that the Bill lacks ambition?

39. Mr Johnston: With respect, I do not accept that, because it needs to be seen in the bigger context of what the Department is doing, including the various areas that are highlighted in the Programme for Government.

40. Since devolution, the Minister has implemented a number of fundamental reforms, including the review of public legal services, the review of prisons and the review of youth justice, which is just being launched. We are taking a fundamental look again at mental health and mental capacity provisions through the new legislation that we are working on with the Department of Health, Social Services and Public Safety. We will also be briefing the Committee shortly on our new focus on reducing offending and tackling its root causes.

41. Legislative reform can only play a part in that bigger programme. We hope that we are setting off on the right foot, and we are already starting to look at the next piece of justice legislation. I realise that the current Bill has its limitations, but I hope that it is a step in the right direction. I also hope that, when seen in the context of the wider work that is going on, it will demonstrate that there has been a fairly fundamental shift in the reform of the justice system since devolution.

42. The Chairperson: The whole Bill lacks quality. It is a rushed step to get something done, and, at the end of the day, the greater part of the Bill has been lifted straight from legislation in England and Wales. It lacks a local touch.

43. Mr Johnston: There are certainly provisions in the Bill that have been used elsewhere, and we have been able to learn from the experience elsewhere. For example, it is fair to say that England and Wales went far too far in their use of fixed penalties. They started to use them in a lot of cases in which it was not suitable to use them, for example, in more serious crimes. We decided that fixed penalty powers are a good idea but that we will start by using them for a relatively small number of minor offences. If they work, and we are confident that they will, we can always return to them and increase the number of offences that they can be used for.

44. There are other provisions, for example, those on policing and community safety partnerships, that have very much been formed in the context of Northern Ireland, and the current proposals in that area have been very much shaped by local consultation. For example, Paul Goggins had originally proposed setting up crime reduction partnerships based on his experiences in England. However, there was a widespread feeling that that proposal was not suitable for Northern Ireland and that it did not pay sufficient respect to the important role that the district policing partnerships play here.

45. I do not deny that we looked for inspiration elsewhere, and we will continue to look at best practice elsewhere. I hope that there is some indication that we have shaped the Bill to the specific needs of Northern Ireland. That is one of the Minister's commitments as we move forward.

46. The Chairperson: You talk continually about the next Bill, which tells me that you are more focused on what will be in that Bill and less focused on what is in this Bill. It tells me that the current Bill was a rushed piece of work that was done just to get something done; it did not matter what was in it, as long as you had something to throw out to the public to say, "Look, here is what we have done". You missed all the big issues.

47. Mr Johnston: There are important provisions in the Bill that will make a real impact on the justice system. For example, the fixed penalty notice powers are something that the Chief Constable called for vociferously. They will save the bureaucracy involved in producing prosecution files in a couple of thousand of cases each year and are very much aimed at getting police officers back into contact with communities on the front line. There is a proposal to create a victims of crime fund, which could realise £500,000 a year and could be used to fund important moves forward such as the introduction of independent sexual violence advisers who can travel through the justice system with those who have been victims of rape or serious sexual offences. Those are the proposals under the headings of victims and community safety.

48. Again, for a very long time, there have been calls for Northern Ireland to have good sports law provisions, and there has been a sense that we are very behind the times in that regard. The provisions are important and will add value. I am not saying that they are the final answer, but I would encourage the Committee to see that significant steps forward have been made in what we are putting forward today.

49. The Chairperson: There was a clear indication that the issue of solicitor advocacy would be included in the Bill. We are now told that it will not be, and you have told us the reasons for that, yet you still hold out hope that it could, in fact, be included at Consideration Stage. How hopeful are you about that? Is a carrot being dangled in front of us? Is it a case of "Live, horse, and you will get grass"?

50. Ms Laurene McAlpine (Northern Ireland Courts and Tribunals Service): Perhaps I can help the Committee on that point. We had a draft provision to confer rights of audience in the High Court and the Court of Appeal on solicitors who have been authorised by the Law Society. There was a concern, however, that the clause did not sufficiently guard against potential conflicts of interest. For example, if a solicitor is also a solicitor advocate or works in the same firm as a solicitor advocate, it would not necessarily be in his interest to advise a client about alternative counsel. We are working to develop that clause, and we are optimistic that it will be possible to put in place sufficient safeguards that will allow the provision to be within the competence of the Assembly and not in any way in conflict with the European directive on the provision of services.

51. The Chairperson: I suspect that the answer that we will eventually get will be no, the issue cannot be dealt with in the current Bill, but there is a possibility that it could be included in the new Bill, which may be the real Bill, whenever it comes. That Bill may arrive four years or one year into the new mandate, but it will be in the new mandate. It has to be said that there is considerable disappointment that that issue was not flagged up long before the Bill got to this stage.

52. Mr McDevitt: I will pick up where the Chairperson left off. What does article 25 of the EU services directive say? I do not mean literally; I mean in general terms.

53. Ms McAlpine: Article 25 of the directive requires member states to ensure that there is no conflict of interest in the way multidisciplinary partnerships provide services. As I explained, the potential conflict of interest is that, if a solicitor is also a solicitor advocate or works with other solicitor advocates, naturally it is not in that solicitor's interests to point to the alternative availability of counsel for advocacy services. We need to guard against that. The clause that we originally drafted was not considered sufficiently robust in that regard, but we think that it will be possible to devise a mechanism to overcome any concerns about conflict of interest and to propose a clause during the passage of the Bill.

54. Mr McDevitt: Solicitor advocates operate in other parts of these islands. What is the statutory basis for their role? What law allows them to perform that role?

55. Ms McAlpine: As you rightly say, solicitors in, for example, the Republic of Ireland have rights of audience in courts during proceedings. Solicitors in England and Wales who have a higher court qualification have rights of audience in the higher courts, and there are similar arrangements for solicitor advocates in Scotland. We might want to talk to our colleagues in those jurisdictions about whether they have encountered similar concerns over this conflict of interest.

56. Mr McDevitt: I am not aware of any challenges under article 25 of the EU services directive. I wonder whether any of the officials are aware of any such challenges to existing law elsewhere on these islands.

57. Ms McAlpine: No, I am not aware of any. We will want to talk to colleagues in other jurisdictions to see if they have some sort of refinement or nicety around their procedures that might assist us, but it is not my impression that there have been any.

58. Mr McDevitt: It would be reasonable to assume that there is probably ample precedent in law elsewhere that could be drawn on and which could inform the drafting of a suitably competent clause for this Bill. We could then be shown the clause at further stages.

59. Ms McAlpine: Yes; I am optimistic that we will be in a position to propose a clause during the Bill's passage that will confer rights of audience on solicitor advocates.

60. Mr McDevitt: Is that a commitment, Ms McAlpine?

61. Ms McAlpine: The matter is not in my gift. It is matter for the Minister, and he will want to take into account any advice given by the Attorney General on the issue.

62. Mr McCartney: My point is on the general principle under discussion. I assume that, if the Attorney General were to suggest that any clause is in breach of EU law, it would be taken out of the Bill. How is that process resolved generally? How do we test that?

63. Mr Johnston: The Department and the Attorney General's office are certainly having a discussion on those issues, and that discussion is informed by our lawyers in the Departmental Solicitor's Office (DSO), who have looked at the competence issues and prepared an initial brief. It is not the case that we propose a provision and it comes back to us with a note to say that it is not competent and must be taken out of the Bill. There is an ongoing process; an iterative process, if you like.

64. Mr McCartney: How long would that process take for this particular issue and in general? How long does it take to determine whether something is or is not in breach of European law?

65. Mr Johnston: It is a difficult question to answer because, in a sense, it takes as long as it takes. We have been communicating with the Attorney General's office on some of the issues in this case for a month and a half, and we will continue that communication.

66. Mr McDevitt: You mentioned that you were hopeful that we would be able to see a new draft of a clause that would allow us to extend the scope of banning orders to outside Northern Ireland. What was the specific obstacle that you encountered?

67. Mr Johnston: It was about territoriality, which is not easy to say without your teeth in. There was a concern that we were creating provisions that would, in effect, have application outside the jurisdiction. Again, we are looking to see whether there are ways to phrase that to get round those problems of territoriality.

68. Mr McDevitt: There would be other precedents in criminal law.

69. Mr Johnston: Yes, the Scots certainly have similar legislation, and we will be in communication with them to see whether any similar issues arose.

70. The Chairperson: Do England, Scotland and Wales not have similar provisions?

71. Mr Johnston: Yes, they have similar provisions. We have some information on those provisions, and, as I said, we are in communication with the Attorney General's office to see whether we can arrive at something that would be passable.

72. Mr McDevitt: The Chairman covered this point well — he certainly speaks for me, and I presume for all of us — when he said that a lot of the Bill involves transferring stuff that has gone on elsewhere to our statute books. However, the one bit of our sporting mix that is unique is sectarianism, which, tragically, is occasionally present. You said that you are hopeful that you can bring forward some proposals during the passage of the Bill.

73. Mr Johnston: I said that I recognised that it was an issue that the Committee wanted to explore again. The last time we talked to the Committee about sports law, Mr McNarry asked how we could make sure that sectarianism was covered in, for example, offensive chanting. Tom might want to say something more about that. At the minute, we are looking at a range of section 75 categories and expressing it in that way because of concerns about whether the word "sectarianism" could be defined if it were included in the Bill. That is, if you like, our way of defining sectarianism. However, we are very willing to have a discussion with the Committee about that.

74. Mr Tom Haire (Department of Justice): The definition in the Bill covers the section 75 groups. The issue was whether it actually mentions or addresses sectarianism, and our view is that the definition does catch it. We have agreed to look at it again with the Committee to see if there is some way of strengthening it by referring to "sectarianism", for example, if that is possible.

75. Mr McDevitt: Mr McNarry raised that issue, and, from memory, Mr O'Dowd and I expressed opinions on it for two reasons. First, we wanted to make the Bill a local Bill that recognises our local uniqueness. Secondly, there are undoubtedly contexts, scenarios and occasions when you would probably only be able to define an incident, event or utterance as sectarian. Those may not technically fall within the scope of section 75, but, within our social norms, they would obviously and evidently be sectarian. Not to include that in the legislation would be a significant missed opportunity and would mean that we are selling ourselves quite short.

76. Mr A Maginness: I welcome the provisions for fixed penalty notices in the Bill. That is a good development, which I support. If a person were to receive a fixed penalty notice, would that be regarded as a criminal conviction? That is important, because having a criminal conviction, even for a fixed penalty notice, affects people adversely. I would like clarity on that issue, but I underline my view that fixed penalty notices are a good step forward.

77. I want clarification on one aspect on the Bill, although I really should know this as it has been touched on before. One of the provisions in Part 7 of the Bill, which deals with legal aid, will remove the restriction on the Northern Ireland Legal Services Commission establishing or funding services under litigation funding agreements. My understanding is that the purpose of that provision is to free up the commission to develop alternative forms of funding for legal aid.

78. Mr John Halliday (Department of Justice): Yes, that is correct.

79. Mr A Maginness: In what way will that provision do that? What is the general effect of it?

80. Mr Halliday: There was some discussion as to whether the prohibition in the Access to Justice (Northern Ireland) Order 2003 was actually an impediment. Certain people thought that it was not an impediment and did not need to be removed. However, the Legal Services Commission asked for it to be removed, and, on that basis, we inserted the clause to do so.

81. Mr A Maginness: Is the commission happy with that?

82. Mr Halliday: It is.

83. Mr A Maginness: Is the Law Society also happy with that?

84. Mr Halliday: Yes; as far as I know. That should enable a fund to be established — [Inaudible due to technical difficulties.] As you know, most civil cases are successful, and the idea is that a small payment will be made into the fund from each successful case so that other cases can be funded.

85. Mr A Maginness: So, it is a much more flexible approach to legal aid funding.

86. Mr Halliday: It is, and it will remove the cost to the public purse.

87. Mr Johnston: In answer to the first part of Mr Maginness's question; it is not proposed that fixed penalty notices will form part of an individual's criminal record, but an administrative record of them will be kept. They are intended for use against first-time, non-habitual offenders, and, hopefully, if someone misbehaves and receives one, it will serve as a warning to them and give them a direct short, sharp shock. It will also give the police an opportunity to engage with them on what happened. If the penalty does not have that effect, the next time around, the police will have ready access to the information that that person received a fixed penalty notice in the past and will be able to consider other disposals.

88. Mr McCartney: Thank you for the presentation. We welcome the fact that we are at this point, and we look forward to taking the Bill through its Committee Stage. We will seek clarity on a number of issues, but we will do that as we proceed with scrutiny of the Bill rather than ask you about them today.

89. Mr O'Dowd: I have previously raised concerns about the sports regulations and whether this is law for law's sake. Clause 42 goes into a lot of detail about what constitutes a drinks container; I think it covers everything. Clause 41 is entitled "Being drunk at a regulated match". Is there a legal definition of being drunk? Who decides whether someone is drunk?

90. Mr Johnston: It falls under the same procedure used to assess whether someone is guilty of the offence of being drunk and disorderly or simple drunk; it is based on the evidence of any witnesses and any police officer who was involved in the arrest. It is similar to the law elsewhere.

91. Mr Haire: That is very much the case; it is down to the police's interpretation.

92. The Chairperson: I thank Mr Johnston and his team for coming here today. The Bill has started its long journey, and I suspect that we will see the team again before it reaches its destination. I suspect there will be a few meetings between now and January or February.

18 November 2010

Members present for all or part of the proceedings:

Lord Morrow (Chairperson)
Lord Browne
Mr Thomas Buchanan
Sir Reg Empey
Mr Paul Givan
Mr Alban Maginness
Mr Conall McDevitt
Mr David McNarry
Ms Carál Ní Chuilín
Mr John O'Dowd

Witnesses:

Mr Tom Haire
Mr Gareth Johnston
Mr David Mercer

Department of Justice

Mr Ciarán Mee

Department of Culture, Arts and Leisure

Mr Nick Harkness
Mr Paul Scott

Sport Northern Ireland

Mr Iain Campbell

Ulster Rugby Supporters' Club

Ms Lyndsey Irwin

Ulster Rugby

Mr Robin Cole
Mr Joe Eagleson

Irish Rugby Football Union Ulster Branch

Mr Ryan Feeney
Mr Stephen McGeehan
Mr Danny Murphy

Ulster GAA

Mr Stephen Grange
Mr Patrick Nelson
Mr Terry Pateman
Mr Hugh Wade

Irish Football Association

Mr Chris Andrews
Mr Gary McAllister

Amalgamation of Official Northern Ireland Supporters' Clubs

93. The Chairperson (Lord Morrow): I welcome Gareth Johnston, deputy director of the justice strategy division in the Department of Justice (DOJ); Tom Haire, Justice Bill manager in the Department; David Mercer from the Department's criminal law branch; and Ciarán Mee from the Department of Culture, Arts and Leisure (DCAL).

94. The briefing will consist of two parts. The officials will outline in 10 minutes the clauses on regulated matches, conduct at regulated matches and alcohol on vehicles travelling to regulated matches, and that will be followed by five minutes in which members can seek clarification on any points raised. I remind members that questions on and discussions about the issues will come later. The purpose of this briefing is to set out what the legislation says and its intent. As members will see, I am surrounded by clocks. The Committee Clerk will tell me when there are two minutes to go, and people may then be given a 10-second warning. That is the way it will be conducted. I ask everyone to keep that in mind and we might find that it works all right. It will not work all right if we do not do that.

95. Mr Gareth Johnston (Department of Justice): Thank you, Chairperson. In light of your injunction, I will try to introduce things in one minute and allow my colleagues to speak on the substance of the Justice Bill. This is the first of our briefing sessions on the substance and detail of the Bill; we have previously briefed the Committee on the policy contained in it. We welcome the opportunity to speak to the Committee. I assure the Committee that our Minister, David Ford, is very keen to hear its views on all the issues and to take account of those views in moving forward.

96. In dealing with sports law in the Bill, we have had considerable support from colleagues in DCAL. Mr Ciarán Mee from the Department is here and will speak in a moment. I know that our Minister would want to record his thanks to the Minister of Culture, Arts and Leisure and his officials for their valuable consultation and co-operation.

97. We will deal with clauses 36 to 44 first, and then, as the Chairperson said, we will take some questions and comments. Following that, we will deal with clauses 45 to 55.

98. There may have been some apprehension outside the Committee that these clauses will provide a package of measures that will be introduced in its entirety for every sport in every little respect after April 2011. I can assure the Committee that that is not the intention. Rather, the legislation will provide a framework that needs to be applied in appropriate ways at appropriate times.

99. The package has the potential to introduce things incrementally and to disapply certain aspects, particularly those that relate to alcohol. We have given, and will give again today, assurances that, for example, the commencement of the alcohol provisions and any application or disapplication of them will be subject to further discussion with the sports bodies and the Committee. I assure the Committee at the outset that there is flexibility there, especially in relation to alcohol, and we recognise that the needs may be different for different sports.

100. Throughout the package, we are looking to provide the backing of criminal law to the important work that match organisers are already undertaking, particularly on the back of DCAL's safety of sports grounds legislation and policy, on which the sports provisions in the Justice Bill are very much built. I will now ask Mr Mee to say a few words.

101. Mr Ciarán Mee (Department of Culture, Arts and Leisure): Thank you, Gareth. I thank the Committee for allowing DCAL to be present at this hearing today. Gareth has indicated that the proposals on sport in the Justice Bill are intended to ally, as far as possible, with DCAL's safety of sports grounds policy. To help the Committee, I will briefly explain what that policy is and how the related safety legislation operates.

102. The main purpose of DCAL's safe sports grounds initiative is to help the owners of larger sports venues, mainly those at which football, rugby and Gaelic games are played, to put their events on a more sustainable footing by making them safer and more attractive for the public as a whole. The Department recognised that, for various reasons, public safety standards at larger sports grounds in Northern Ireland had not kept pace with developments nationally and internationally. As a result, fans and supporters who attended games were exposed to ever greater safety risks. For many ground owners, the situation had reached crisis point, with regular attendances falling drastically in many cases. That was largely due to public concerns about the state of grounds and the apparent absence of adequate safety control measures and guarantees.

103. The safe sports grounds initiative represents the Department's response to those issues. It recognises that venue owners need assistance from government to help them to address the problem and that the public need an assurance that they will be safe and secure when attending games. Under the initiative, assistance to venue owners takes many forms. It involved and still involves substantial long-term financial support provided via Sport Northern Ireland, which is responsible for the distribution of public funding to sport. Since the initiative was launched, Sport NI has rolled out a number of safety funding programmes for ground owners.

104. To date, almost £15 million has been invested by Sport Northern Ireland under a range of programmes to help clubs to comply with the safety legislation: the Safety of Sports Grounds (Northern Ireland) Order 2006. That came into full operation at the beginning of this year, and it is intended to provide the necessary public assurances on safety. It introduces a safety certification scheme for larger sports grounds and stands that is administered and enforced by district councils. In essence, it allows councils, in conjunction with ground owners, to determine the number of spectators that venues can safely admit into grounds and the safety terms and conditions of admission.

105. I must stress that not all sports grounds automatically fall within the framework of the safety certification scheme or the safe sports grounds policy. Consistent with all aspects of our approach, certification is risk-based and is, therefore, aimed at grounds that are capable of housing large crowds of people. Facilities that require certification are identified by two methods: grounds designation and stand regulation. Briefly, grounds that are considered for designation — those that require a council safety certificate — are those with a capacity in excess of 5,000. At present, 30 grounds in Northern Ireland have been designated by DCAL in that way: 15 football grounds; 14 GAA grounds; and 1 rugby ground.

106. Stands that are considered for regulation are those with a capacity of 500 or more, and stand regulation is entirely the responsibility of district councils. The Department's long-term expectation is that, with adequate assistance and support and the implementation of safety legislation, attending matches at major sports grounds will, over time, become a more attractive prospect for the wider public. It will enable clubs and match organisers to assure visitors that they and their families will be safer and more comfortable at grounds.

107. Furthermore, the structures now being put in place through certification also encourage emergency services, such as police, fire and rescue and so on, to work constructively with ground owners in a way that allows owners more control over their events. Although there remains a role for the police, for example, in emergencies, the general thrust is to help match organisers be more self-reliant and to minimise the requirement for policing.

108. Given those objectives, we have generally encouraged the Department of Justice in developing the sports law measures in the Justice Bill to ally them, wherever possible, with the safe sports grounds initiative and related legislation. That is why, for example, it was proposed that, in the case of Gaelic and rugby, the justice provisions should apply to the larger venues and stands that are subject to certification.

109. The Chairperson: You have two minutes left.

110. Mr Mee: It is thought that those are likely to pose the greatest safety risks in relation to crowd numbers. I will finish there.

111. Mr Johnston: If Tom could just say something quickly about the regulated matches that are covered, we will then take questions and come back to the detail.

112. Mr Tom Haire (Department of Justice): One thing that came out of various representations was the need for an explanation of how the regulated matches construct works. Clause 36 and schedule 3, which have to be read together, define the concept of regulated matches and outline which powers will apply to which matches. With the Committee's permission, I will try to summarise them quickly.

113. The offences in clauses 37 to 43 — missile throwing, pitch incursion, firework possession, drunkenness, possession of containers and alcohol consumption on the terraces and in sight of the pitch, for want of a better description — will apply to the three sports for matches played in Northern Ireland. In association football, they will apply to Northern Ireland representative teams, the two top Irish Football Association (IFA) leagues and the two top Football Association of Ireland (FAI) leagues, because of Derry City and whichever league they play in. For Gaelic games, which include Gaelic football, International Rules, hurling and camogie, they will apply to games played in Northern Ireland in grounds under the safety certificate scheme, which requires a grounds or stand certificate. Rugby Union games will have the same basic structure as Gaelic games.

114. The Chairperson: You have 10 seconds.

115. Mr Haire: For rugby, that affects only Ravenhill.

116. The Chairperson: Thank you, gentlemen. We have five minutes for questions if members wish to ask anything.

117. Mr O'Dowd: Thank you for your presentation. As you can see, the Chairperson was not joking when he mentioned the timings.

118. Clause 37 makes it an offence to throw something onto the pitch. Is it currently legal to throw something onto the pitch?

119. Mr Johnston: It is illegal if it constitutes an assault or an attempted assault, but, in order to show that, it has to be shown that there was an intention to hit someone and cause injury. Simply randomly throwing something that lands on a pitch is not illegal. The message that we are trying to get across is that, when people are in a sports stadium, they should not throw anything.

120. The Chairperson: Would a toilet roll with ball bearings in it count?

121. Mr Johnston: Yes, those would be included.

122. Mr Givan: You have applied the ticket touting provision to football only. Why are GAA and rugby not mentioned? Your point is that the matter is solely related to safety, but I am not aware of any safety concerns at football matches, certainly not in the recent past. Where is the evidence to base it solely on safety? Why are there safety concerns about football but not about GAA and rugby?

123. Mr Johnston: There are safety concerns with all sports, but ticket touting is an issue because of the need for segregation of fans. Segregation is needed in only a small number of matches, but, where fans need to be segregated, ticket touting is an important part of that segregation. Another risk with ticket touting is that people will end up outside a match looking to buy tickets. That happened with one of the Poland matches, and that can create a real problem. We are not talking about a huge number of matches, but, for matches in which segregation of fans is important and in which a buffer zone might be needed, the ticket touting provision should go alongside that.

124. The Chairperson: That is straying slightly into the next category.

125. Mr McNarry: To keep me right, are we discussing regulated matches, which is what I was talking about? What was the level of consultation with the three principal sports bodies?

126. Mr Johnston: All three responded to our policy consultation, and I think that I am right in saying that there have also been discussions and meetings with them.

127. Mr McNarry: Is there an outcome to that?

128. Mr Johnston: Yes, written responses were given to each of the consultations. If the Committee wants, I can provide some of the detail on that.

129. Mr McNarry: That would be useful. Can you define what constitutes drinking in private viewing facilities? You are saying that you are permitting it.

130. Mr David Mercer (Department of Justice): It is to do with the parts of the ground to which the public are not normally given access, such as executive boxes and the registered clubs in, for instance, a football club.

131. Mr McNarry: Is it all right to drink in those?

132. Mr Mercer: Yes. The advice that we had was that it might be disproportionate, given the particular circumstances surrounding those areas, to apply that offence to them.

133. Mr McNarry: Under the legislation, whether in a private viewing facility or anywhere else, how is it determined that someone is drunk, and who determines that?

134. Mr Johnston: The same sorts of tests will be used as those that are used for ordinary drunkenness offences. You would look at their behaviour and the smell of drink.

135. The Chairperson: We have one minute left on this.

136. Mr McNarry: Who determines whether a person is drunk?

137. Mr Mercer: Ultimately, if a case were prosecuted, the court would determine that. The court would draw on the evidence of people who were nearby, stewards and the police, if they were there.

138. Mr McDevitt: Are we on clause 38 or still on clause 37?

139. The Chairperson: We are discussing regulated matches.

140. Mr McDevitt: Clause 38, which is on chanting, falls under that. Why is political opinion not included in clause 38(3)(b)?

141. Mr Johnston: The concern was that that would end up banning legitimate statements of political protest, and we did not want to do that. Having said that, I know that there is an ongoing question of how sectarianism is covered in the Bill, and we are willing to take the Committee's views on that.

142. The Chairperson: That is all the time that we have for questions. I know that some members intimated that they wanted to ask a question. That will not be possible, but those members will be given priority in the next round of questions. That is the only possible way to play this.

143. In the next 10 minutes, the officials will deal with the clauses on ticket touting, banning orders and enforcement, after which there will be 5 minutes for clarification. I invite the officials to brief the Committee on chapters 4 to 6.

144. Mr Mercer: I shall start with chapter 4, which consists of one clause, clause 45. It is fairly straightforward. It makes it an offence to sell or pass on a ticket for certain football matches — those defined as a regulated match — unless authorised to do so by the match organiser. That targets only the potential risks to safety and order when fans need to be segregated, and that point has been made already. We will wish to engage with football organisations to offer guidance on how sales can be administered with minimum fuss within the terms of the offence.

145. Mr Haire: I will say a few words about banning orders. Chapter 5 talks solely about banning orders. You will not find a reference to football banning orders in it. In effect, that is caused by clause 36, which applies this to football matches only, but banning orders are mentioned without a specific reference to football. Under clause 46, banning orders can only be imposed in conjunction with a criminal conviction where the offence involved the person engaging in violence or disorder; if the offence occurred at a regulated match, either entering or leaving it; if the offence occurred while travelling to a regulated match, even if an individual did not attend it or intend to attend it, or if the journey was broken, including by an overnight stay; and where the court believed that the offence was motivated by the regulated match. Therefore, it is very closely tied in around the regulated match and behaviour at a regulated match.

146. Violence and disorder are defined in clause 49. It relates to violence and disorder against persons or property; stirring up hatred; abusive or insulting words; and displaying anything in writing that is threatening, abusive or insulting.

147. Clause 47 deals with what a banning order consists of. It prohibits a person from entering any premises for the purpose of attending a regulated match. The person must report to a police station within five days of the order being made. If any of their core personal details change, they must notify the police of those changes within seven days.

148. Clause 50 determines that a banning order is normally between three and five years, but, in instances in which it is in conjunction with a prison sentence, it is between six and 10 years.

149. Clause 54 determines that failure to comply is an offence that can attract a six-month sentence or a fine of up to £5,000.

150. Clauses 46, 47, 48 and 53 place a number of requirements on the court in imposing a banning order. They must give reasons if they do not impose one, and they must explain in ordinary language the effect that the order will have on the person. Furthermore, they must give a copy of the order to the person and send a copy to the Chief Constable and any prescribed person. Our view is that that prescribed person will primarily be the football authorities, for example. They will also send it to the police station to which the person has been advised to report.

151. In respect of the variation or termination of a banning order, a court can impose additional requirements. The person or the prosecution can apply for variation. Once two thirds of the period of the order have passed, the person can apply to have it terminated. If that fails, no further application can be made within six months.

152. Chapter 6 is not specifically on banning orders, but there are some provisions on powers of enforcement. They provide the police with the power to enter a ground during a regulated match, as in clause 36, to enforce any provision of the sports law package. It also provides police with the power of search. The intention is to provide the police with their own powers to police the sports, should they require or need to exercise them. Members will know that police do not routinely police games that are, in fact, privately organised matches, and we do not envisage that changing. It will be for match organisers to steward and manage events, and they will have the ability to call on the police, as appropriate. There may be occasions when police need to act quickly and on their own initiative, but the powers of enforcement are such that criminal law backs up what Gareth described at the outset.

153. Mr Johnston: I am conscious that we have skipped over some of the detail on alcohol, chanting and pitch incursion. However, if I draw to a close here, we will have five minutes extra for questions. Members might want to bring up those issues at that stage.

154. The Chairperson: Thank you for that.

155. Lord Browne: Am I right in saying that offensive chanting is already an offence if it incites hatred or causes offence? If it is, it is already covered, and it would not be necessary to have it covered here.

156. Mr Johnston: It can be an offence if it incites hatred, but showing that it incites hatred is sometimes quite difficult.

157. We are saying that, for those 90 minutes that someone is in the football stadium, they should not chant offensive or indecent things. We are trying to promote a standard of behaviour.

158. Lord Browne: Clause 45 refers to ticket touts. Am I right in saying that it applies only to tickets for football matches? That seems a bit unusual. There is not much evidence of touting occurring in Northern Ireland football matches; it applies more to high-price tickets, such as for rugby matches and so on.

159. Mr Johnston: The issue is not so much about tickets being sold. I realise that there are concerns about tickets, not just for sports events but for concerts and all sorts of things, being sold at way above cost price, but maybe that is not something for criminal law to intervene in. The concern is very much driven by safety concerns and the need to segregate fans. So far, the few matches where segregation has been necessary have been football matches.

160. Mr Buchanan: This point may well have been covered, but, if I have a ticket for a match but fall ill and then pass the ticket on to a friend, or if I buy tickets for friends, is such activity classed as ticket touting or is it quite legitimate?

161. Mr Johnston: That would all be legitimate. The proposed legislation talks about ticket touting being unauthorised and persons being unauthorised. We expect that the terms and conditions under which tickets are sold will say that, if someone is passing tickets on to a family member or an acquaintance or buying them on behalf of identified people, that is fine. We propose to issue some guidance to help the clubs to frame those clauses.

162. Mr O'Dowd: The legislation states that, if someone is involved in violence or disorder, a banning order can be imposed on them so that they are not allowed to go to matches. Sexual offences are the only other offences that I can think of for which a banning order is placed upon someone to restrict their movement. Surely our sports grounds are not such dangerous places that we have to introduce banning orders that equate to what happens to someone who is involved in a sexual offence? In fact, these go further than the powers that were available to a judge in a recent high-profile case.

163. Mr Johnston: The only thing that would be banned is attendance at regulated matches. We expect that the orders would apply to a relatively small number of people. Based on the numbers in England and Wales, only 20 or 30 people in Northern Ireland might be in possession of a banning order at any one time. However, we are conscious of the potential of a small number of people or even of one person to create real problems at a match and to do real violence. We are not talking here about people who maybe got a bit carried away and did something stupid at a match: we are talking about people whom evidence has shown to be a substantial danger when attending sports matches. In imposing a banning order, courts will be required by general law to take account of someone's human rights, such as the right to enjoyment and the right to a private life — the usual rights under the European Convention on Human Rights (ECHR). There should be a balance there. We expect that they will apply to only a small number of very troublesome and quite dangerous people.

164. Mr McNarry: Gareth, you gave an interpretation of who you are talking about. However, it is not quite clear to me who you are talking about and who outside might have the same interpretation as you, so I would like some greater detail on that. As regards banning orders, chanting, ticket touting and so on, I do not think that anyone has a problem with tightening up measures to address loutish behaviour on or off the pitch. Is it envisaged that, because of these new laws that you wish to introduce, more police resources will be required to oversee the legislation?

165. Mr Johnston: There will be some implication for police in that we are proposing that the police would administer the banning order regime. That means that, if someone is subject to a banning order, they will be required to report to a police station within the hours that regulated matches are taking place. However, because of the numbers that we foresee being given banning orders, we do not see that as being a major drain on resources; we see that as being containable.

166. Mr McNarry: The chanting element surely involves large numbers of people.

167. Mr Johnston: Yes, but we are not really looking for the police to play more of a role at matches than they do currently. In many ways, the law will allow match organisers and stewards to tell people that they are acting illegally and warn them that, if they do not stop it, they will be reported to the police. It will be dealt with in that way rather than by drawing the police in. We are not trying to get the police more involved in sports matches than they are currently.

168. Mr McNarry: How will you enforce it?

169. Mr Johnston: The sports organisations and the stewards currently have an important role in enforcing safety at matches. In many ways, we see the new offences as giving weight to that role, but always with the match organisers being the first line, if you like, where there is bad behaviour.

170. The Chairperson: If there is to be more police involvement, who will pick up the bill? Will it be the match organisers?

171. Mr Johnston: There is potential for the police to charge where there is major police involvement in a match. There have been a small number of examples of that, although we have been talking about the top end.

172. Mr Mee: DCAL expects that good management of safety and clubs' compliance with the terms and conditions of their safety certificate should minimise the need for police involvement and, therefore, for police charging. That is part of the aim.

173. The Chairperson: That will minimise but not eradicate the need for police involvement. Are you saying that a bill will still need to be picked up for policing?

174. Mr Johnston: Again, we do not expect that to be any more than it is currently, and we do not expect it to apply to matches other than those to which it applies currently. We are talking about the biggest and most problematic matches.

175. Ms Ní Chuilín: The clause on ticket touting refers to making tickets available for sale. At the time of the last all-Ireland final, I got loads of e-mail requests from people asking me whether I knew of any tickets going, and people were looking for tickets on eBay. That is a perfectly natural thing. Is that, effectively, ticket touting? If someone were to ask a person whether tickets are available for a match, would they be viewed as soliciting tickets? Some of this seems a bit ridiculous if you read it literally. The same principle applies to concert tickets, although that is not covered in this legislation.

176. Mr Johnston: Again, it comes down to who is considered to be an unauthorised person. Some thought has been given to the sale of tickets on eBay, and, if the sports organisations are happy for tickets to be sold on eBay, there would be the potential for something to be crafted in the terms and conditions. A requirement that tickets be sold at cost price might be included in the terms and conditions. We can have more conversations with the sports organisations on that and issue guidance.

177. The Chairperson: We are stopping there. Thank you for your presentation. You are retiring to the Public Gallery, and you will come back again to deal with some of the issues that you raised in your presentation.

178. I welcome the representatives from Sport NI: Nick Harkness, director of participation and facilities and Paul Scott, manager of the facilities unit. I invite them to outline the issues that they wish to raise regarding the sports laws in the Bill. You will have no more than 10 minutes, and after that there will be a question-and-answer session, which will last for 20 minutes.

179. Mr Nick Harkness (Sport Northern Ireland): Thank you, Mr Chairman, for the invitation to give evidence on the Justice Bill. We believe that the Bill is an important element of upgrading safety arrangements at larger sporting grounds in Northern Ireland and of promoting a spectator-friendly environment at those venues. The evidence session is particularly timely, given the provisions contained in Part 4, which complement the provisions of the Safety of Sports Grounds (Northern Ireland) Order 2006, as has been summarised for the Committee by the DCAL representative. The provisions will be of particular assistance to the ground operators of designated venues, enabling them to upgrade safety arrangements and provide spectator-friendly environments.

180. We have provided a written submission on the Bill, which I do not intend to go over line by line. I would prefer to introduce Paul Scott, who will present our main comments on the Bill. Paul is a full-time employee of Sport Northern Ireland. To some extent, he is our resident expert in this field. At the moment, he is employed to provide advice to DCAL and ground operators on the Safety of Sports Grounds (Northern Ireland) Order 2006. In 1997, before he took up employment at Sport Northern Ireland, Paul was the author of a report reviewing legislative controls at sports grounds in Northern Ireland, which was commissioned by the then Health and Safety Agency. One finding of that report was the call for the introduction of public order legislation for sports grounds in Northern Ireland. I will pass over to Paul.

181. Mr Paul Scott (Sport Northern Ireland): Sport Northern Ireland is a non-departmental public body of the Department of Culture, Arts and Leisure, and it is charged with the development of sport in Northern Ireland. As technical manager of Sport Northern Ireland, I have responsibility for overseeing the implementation of the Safety at Sports Grounds (Northern Ireland) Order 2006. As we have heard, that places a duty on the operators of larger venues — venues with a capacity in excess of 5,000 — and the operators of smaller venues with a stand with a capacity of 500 or more to obtain a safety certificate from the respective district council. The safety certificate will state the safe capacity of the venue and parts of the venue, but it will also include terms and conditions as to how the venue should be operated and around the structural arrangements at that venue.

182. Sport Northern Ireland has been tasked with overseeing and monitoring the implementation of that legislation, and we provide technical and administrative advice to DCAL, district councils, venue operators, the police and other emergency services, governing bodies of the respective sports and so on. In Northern Ireland, 30 sports grounds have been designated: 15 soccer grounds, 14 GAA grounds and one rugby venue.

183. Sport Northern Ireland is broadly supportive of the majority of clauses in Part 4. Rather than repeat the information in our written response, I will highlight a few observations.

184. It should be noted that some matches played at the venues referred to in paragraphs 6 and 8 of schedule 3 often host junior, youth or low-level matches with low or minimal attendances. Therefore, it may not always be appropriate to apply the legislative provisions as detailed in Part 4 to such fixtures. However, consultation with the governing bodies is ongoing, and I am sure that a resolution can be obtained.

185. We are generally supportive of clause 42, which deals with the possession of drinks containers. We are aware that bottles, including those that contain soft drinks, are, unfortunately, used as missiles and weapons at some fixtures. However, some guidance is required, because the term used is "article capable of causing injury". Does that refer to a plastic bottle, with or without the cap removed, which may be brought in to a game by a child or a minor? We need to think that through.

186. We believe that the possession of alcohol provision should be applied on the basis of associated risk to spectators who attend fixtures and to the reputation of the sport. We see the legislation, particularly the provisions relating to the throwing of missiles, invading the field during play and the possession of fireworks, as essential in assisting venue owners to comply with the terms and conditions of the safety certificate. Although we should not blindly follow what happens in GB, when legislation of that nature came in there, coupled with the effect of the safety of sports grounds legislation, attendance rose by 87%, particularly that of ladies, families, young persons and persons with a disability. There are numerous success stories.

187. The Chairperson: You did not take the full 20 minutes allocated, but that leaves more time for questioning.

188. Mr McNarry: I recognise the good work done by Paul and Nick and the people whom they represent in addressing safety at stadiums and the spillover of people outside them. I am, therefore, perturbed that we are having to deal with legislation. Does the fact that some people — I might be in this category — believe that there is a pressing need for new legislation point to a failure so far by everybody involved in sport?

189. These are not major issues, and this is not major legislation. However, I fear that the legislation is picking on sport, which is what we are talking about, and one sport in particular. From your experience, because I know that you have great experience in this, are we using the law to deal with a minority who are, as usual, causing harm to a majority? Could an alternative to the legislation be people such as you providing more education and information? I know that you do that very well. Why do some people deem those laws to be necessary, given that they are only going to affect the real sports fan? I do not care about which game that fan turns up to; the fact is that the legislation is only going to affect them. It seems that the legislation is a bit picky and that it has been drafted only because we have not addressed those issues. I believe that most of those issues are being addressed. There are obvious, clear issues that people can address.

190. Mr Harkness: The issue of addressing and improving safety at our sports grounds is twofold. First, it is about making the infrastructure safer by looking at the design, taking away barriers and creating opportunities for people to move more freely. Secondly, it is about improving safety standards by changing behaviours. The intention of the legislation is not to catch people doing wrong but to incentivise people to change their behaviours. It mirrors the work to open up facilities to allow movement through them.

191. Mr Scott: Again, numerous initiatives have been tried by governing bodies and by others. Unfortunately, those initiatives had limited success here and in other parts of the world. We again draw on the good practice of Great Britain, where a similar package acted as a deterrent to those who might have misbehaved at games. As I said, that had a positive impact, and I can see one sport in particular benefitting greatly from those measures.

192. Compare the number of people in Northern Ireland with the number of people in Great Britain: based on the numbers attending matches in Great Britain, there should be between 23,000 and 24,000 people at Irish League matches on a Saturday, but there is not. I fully accept that there are the glamour matches in Great Britain involving Manchester United and so on. However, if we take the Premiership games out of the picture, there should still be between 13,500 and 14,000 people at our games. Most people at football games behave themselves and are there for the best of reasons. However, a small minority unfortunately tarnish the game and other games.

193. We really need to be speaking to the people who we could reasonably expect to be on the terraces but are not. We see that as being allied with the other initiatives. Ciarán Mee mentioned funding and the safety at sports grounds issues, which are important factors in turning the ship around, attracting people to the terraces and trying to get ladies and families back. Unfortunately, UEFA has tried, FIFA has tried and the IFA has done a lot of good work, as have the other governing bodies —

194. Mr McNarry: I hope that you are not suggesting that, if passed, the legislation will lead to 14,000 people going to football matches. For different reasons, you have been telling me for years that that will happen, but I have not seen it yet. The standard of play is not good enough for people to go, and I know that there are reasons for that.

195. This is small beer. It involves a small number of people but will hit spectators of all sports. People might be put off going to sporting events because they are not sure what might constitute a criminal activity. If I go to a match and shout, "Come on, Glentoran", is that chanting?

196. Mr Scott: That is not offensive chanting, at least not to most people.

197. Mr McNarry: It might be to the Linfield people. [Laughter.]

198. The Chairperson: It depends where you say it.

199. Mr McNarry: Wallace will not take offence.

200. Lord Browne: I might.

201. Mr Scott: I see it as a positive measure; it has certainly proved to be positive elsewhere. I have not seen any evidence of success from other initiatives.

202. Mr McNarry: It will be in the Hansard report that you said that once the legislation is passed we will have 14,000 people at most Irish League games. We will hold you to that.

203. The Chairperson: In your submission, you comment on clause 43 and state that:

"Spectators at matches in Ravenhill Rugby Football Grounds have been drinking socially on viewing decks at fixtures for many years".

It goes on to say that:

"Alcohol is generally not available at larger" —

I thought that it said "lager" —

"Gaelic fixtures. However, if proposals to upgrade facilities at Casement Park proceed, the sale of alcohol in controlled circumstances may be permitted by the GAA."

204. Are you saying that the clause should not apply to Casement Park and Ravenhill?

205. Mr Scott: Any decision will be risk-based. There are places that have track records of either good behaviour or bad behaviour. Whether or not we apply restrictions on alcohol will be dependent on the risk.

206. The Chairperson: That complicates the situation slightly. You mentioned bad behaviour. I heard recently that Northern Ireland fans were the best behaved fans in Europe.

207. Mr Scott: Northern Ireland fans have won an award. A lot of good work has been done by the Amalgamation of Official Northern Ireland Supporters' Clubs. However, it must also be said that many of the worst instances of disorder at sporting events in the British Isles have been at matches in Northern Ireland.

208. Mr McNarry: But not recently.

209. Mr Scott: Unfortunately, yes. A match between Linfield and Glentoran had to be stopped for five or 10 minutes some months ago because of disorder between people in the north and west stands. In 2006, there was the riot at The Oval. There were issues at the game between Northern Ireland and Poland, and players have been struck by fireworks. That is what we want to get out of football to get Mr Middle Northern Ireland back on the terraces.

210. The Chairperson: You mentioned fireworks. Another missile has been introduced in recent years; lasers.

211. Mr Scott: The laser pen.

212. The Chairperson: Will lasers be banned? Are they acceptable weapons?

213. Mr Scott: They can be used as weapons, although they are not specifically named in the Bill.

214. The Chairperson: Should they be named?

215. Mr Scott: That would certainly be worth looking at. There are laser pens, but many are only category 1 or category 2 pens, which do not cause injury. It is only when there are category 3B or category 4 pens that there is a danger. Most laser pens, although annoying, do not present a risk.

216. The Chairperson: There was serious rioting in Ardoyne in the summer, and we all distinctly witnessed those lasers being used on the police. The police spoke out in public about their concern about the effect of those. Surely those devices can be brought into stadia.

217. Mr Scott: As I understand it, the types of appliance that were used in those incidents were not the little pen-sized objects but solid-state lasers, which can be bought on the Internet. They present a risk to persons at sporting events or elsewhere.

218. Mr McDevitt: I presume that you strongly take the opinion that our objective should be to make all sporting occasions safe and welcoming to all in our society?

219. Mr Scott: Indeed.

220. Mr McDevitt: What barriers still exist that prevent sporting occasions from being safe and welcoming to all in our society?

221. Mr Scott: Poor facilities and perceived poor behaviour.

222. Mr McDevitt: In your professional experience, how do you characterise that behaviour? What is poor about it and what makes it unwelcoming or unsafe?

223. Mr Scott: It is often about perception. Most matches pass off peacefully, but, at some of the more high-profile matches, there can be incidents of violence, certainly antisocial behaviour, chanting and the use of abusive language.

224. Mr McDevitt: Do you believe that clause 38 offers adequate provision to deal with all types of language that could isolate people or make them feel unwelcome at a venue?

225. Mr Scott: Although many of the preceding provisions have been very successful, efforts to apprehend persons who are engaged in chanting have not been so successful. However, the legislation sends out a message and creates a deterrent. The sports organisations and most people in Northern Ireland will echo the need to at least make an attempt. It might be slightly more cumbersome to deliver it as effectively as we hope to.

226. Mr McDevitt: Obviously, we have made massive progress in the past decade or so in tackling sectarianism in sport here. In your opinion, is that still a lingering issue?

227. Mr Scott: Among a minority of people.

228. The Chairperson: You talked of all the bad behaviour at soccer matches. Very often, that behaviour does not start in the stand but down on the pitch. Has there been any bad behaviour at GAA matches or rugby matches?

229. Mr Scott: There have been some incidents where players or officials have been subject to untoward behaviour.

230. Mr McNarry: In those instances, for how long have the matches been stopped?

231. Mr Scott: Generally, the match is stopped.

232. Mr McNarry: I see. It does not happen only at soccer matches, then.

233. The Chairperson: Mr McNarry said that it does not happen only at soccer matches. Do you agree?

234. Mr Scott: The majority of the major issues have been at soccer matches. Unfortunately, bad behaviour is not confined to soccer.

235. Mr O'Dowd: You have outlined many instances of misbehaviour, whether it is among GAA players, soccer fans or rugby fans. If I clock or thump somebody, regardless of whether I am inside or outside a sports ground, I am committing an offence. We do not need legislation. Throwing fireworks at a goalie is an offence. Riotous behaviour is an offence. If there is a brawl between two players and one tells the police that that boy hit him on the pitch, it is an offence.

236. Mr Scott: Unfortunately, a lot of proof is required to show that someone who throws a missile onto the pitch is intending to hit and, in turn, hurt someone. Therefore, there is a problem, because a person can throw a missile and probably evade the law. That will, rightly, be reported in the press, and the other fans will see that. That can incite others. For example, at the end of an Irish Cup semi-final in Lurgan, the supporters of one team came onto the pitch at the end. That caused the gentlemen from the other side to come onto the pitch, and it took extensive work by stewards and the PSNI to resolve the issue.

237. The people who came onto the pitch and caused others to do so were not committing an offence. So, this would send a loud and clear message to spectators that, if they come onto the pitch and throw a missile, they have committed an offence and will make themselves liable to the authorities.

238. Mr O'Dowd: When fans on the winning side go onto the pitch at the end of a match, the atmosphere is great. It is different when fans go onto the pitch in a provocative manner to seek trouble or when, through their actions, they provoke trouble. That is an offence.

239. Mr Scott: Again, it is about how the law is interpreted and enforced. Even running onto the pitch in celebration can raise issues. I have worked with the authorities at Croke Park, and they are very concerned. You should have seen the helicopter shots of Jones Road and the crushing that was taking place. Although there are different reasons for invasion, it is a practice that I think all the governing bodies would like to see reduced.

240. Mr O'Dowd: I accept that there are safety concerns, but this legislation is not necessarily about safety concerns; it is about criminal offences, many of which, I would argue, are already covered by law. This legislation is unnecessary. In fact, it may never be enforced. To pick up on Mr McNarry's point, it relies on stewards being prepared to give evidence in court against people who may, in the most extreme cases, be very violent.

241. Mr Scott: First, the PSNI is likely to be present at the bigger matches, as it is at the moment. Secondly, most of the big venues in Northern Ireland now have CCTV that has been funded through programmes that Sport Northern Ireland has implemented. If we do not bring in this legislation, it will be harder for stewards and the people who administer our larger fixtures to ensure that they proceed in a safe and secure manner.

242. Mr Harkness: The legislation has the potential to change behaviours. It is not about catching people. It is about changing behaviours and attitudes.

243. The Chairperson: Given some of the things that have been said here, do we need new legislation? Would existing legislation not be adequate after a bit of tweaking and tightening up?

244. Mr Scott: It has proved not to be. It took this type of legislation to bring about the sea change in GB. Take the great riot at The Oval in 2006; not one person could be prosecuted afterwards.

245. The Chairperson: There was another great riot at a lesser match; I think that I am right in saying that it was between Newry and Carrick.

246. Mr Scott: It was between Newry City and Larne.

247. The Chairperson: Is that who it was? I think that maybe five or six players were sent off. The whole thing ended up in an absolute fracas.

248. Mr Scott: It did.

249. The Chairperson: What happened there?

250. Mr Scott: I think that one player was questioned. I cannot recall exactly. I would need to speak to my friends at the IFA to confirm that. However, to the best of my knowledge, that incident solely involved playing staff and officials.

251. The Chairperson: Would there be any cause to introduce new rules to our games? I am thinking of rugby, in particular. In recent years, the sport introduced the sin bin. Players are sent to it for a period, perhaps 10 minutes, during the match and then are allowed back onto the pitch. No such thing exists in soccer, does it?

252. Mr Scott: No; it is either a yellow card or a red card.

253. The Chairperson: If you get a red card, you are sent off, and that is it. However, in rugby, there is an in-between measure that can sometimes take the heat out of a situation.

254. Mr Scott: It is hoped that the yellow card does that in football, but it has not always been successful. This Bill and the safety of sports grounds legislation focus on spectator safety.

255. The Chairperson: They focus on spectator safety, but sometimes the players are at risk.

256. Mr Scott: They can be, yes.

257. Mr McNarry: Chairperson, your point about the sin bin is relevant. The sin bin defuses the situation. I love watching international rugby, and, to me, it is all part of it, in a sense, when they have a great bash on the pitch and someone is sent to the sin bin. That cools it all down, and everybody knows that that player is likely to come back in 10 minutes. The yellow card means that if a player gets one more card, he is sent off. If he gets a red card, he has had it.

258. The Chairperson: You are not saying that you go to a match just for a good bash-up, are you? [Laughter.]

259. Mr McDevitt: You get that here every day.

260. Mr McNarry: I am just trying to recall some of my playing activity at these things.

261. Those incidents appear on national television. Thank goodness that, when there is crowd trouble, the responsibility of the media is such that it does not show a lot of the trouble unless it gets really hyper.

262. I think that there is nearly a consensus evolving here of common sense needing to come in as opposed to legislation. I am just not convinced that this legislation will be good for sport, because I think that it will hammer and hamper the sports. There are enough responsible people in sport who are learning the lessons of the past. When I said that trouble had not happened for a long time, I meant at international matches. I was not referring to Linfield and Glentoran.

263. Mr A Maginness: With regard to Mr McNarry's point, I do not think that a consensus is developing at the moment. It would be premature to say that it is.

264. Mr Scott referred to a match at which a riot took place. Was the reason that people were not prosecuted that there was a lack of evidence or that the law was weak?

265. My final point probably sounds like a silly point, but is a sports ground or a stadium a public place in law?

266. Mr Scott: It is private property.

267. PSNI officers told me that the reason no prosecutions were made after the match is that no one would make a complaint. Even the people who were on the ground and being repeatedly kicked on the head would not make a complaint.

268. I must point out that we have consulted extensively with the three governing bodies, and they believe that this is a good thing for sport. Evidence from elsewhere will point to the fact that this is a good thing for sport. If we carry on the way we are, we will just continue in our downward spiral.

269. Mr A Maginness: Does the fact that, in law, a stadium is not a public place affect the way in which police and others can obtain evidence or intervene?

270. Mr Scott: No. The police can intervene on any private land if there has been a breach of the law or if there is a danger that there might be.

271. Mr A Maginness: Can you have a riot, in the technical, legal sense, in a stadium if it is privately owned?

272. Mr Scott: There are certainly criminal offences being committed, and the suite of various offences associated with assault would apply. So, in theory, therefore, you would be liable. My understanding is that, in the event of an assault, a complaint has to be made.

273. Mr A Maginness: The sin bin was mentioned. We are discussing the law as it applies to citizens at large. We cannot change the rules that apply to a sport. They are internal to a sporting body.

274. The Chairperson: That is fair enough.

275. Sir Reg Empey: I want to ask about possession of drinks containers. I can understand why you want to minimise the risk of containers, such as a tin of Coke or whatever, being used as a weapon. However, we want to encourage families to come to matches. Would you accept that, whenever you see youngsters at a game, you see them with a drink?

276. Mr Scott: Absolutely. That is why we said that we need to think this through thoroughly.

277. Sir Reg Empey: In addition, nowadays, people carry bottles of water around with them all the time. People can, of course, use their ingenuity when it comes to what they put in some of those containers, but, at the end of the day, we must be careful that we do not tip the balance to the point where we end up putting people off coming to matches. I understand the rationale behind encouraging more people to go to matches and making them more family-friendly. However, my concern is that youngsters being brought to matches will not be able to have a drink. Do you accept that concern?

278. Mr Scott: Absolutely. In our response, we said that that provision really needs to be thought through. Children could arrive with a plastic bottle of Coca-Cola or something like that.

279. Sir Reg Empey: I want to go back to the issue of viewing galleries. There is a tension there, because many clubs have put in facilities to encourage corporate entertainment. I assume that the argument that some clubs would make is that, yes, drink is available, but it is served in controlled conditions to persons known to them. However, that will create two classes of people. At some rugby matches, those standing on the terraces run in and out of the bar to get pints of beer, so how will a balance be struck? Some clubs will argue strongly that the sale of alcohol is an important part of their revenue streams. Although we do not want to be killjoys, there is a concern that the provision will create two distinct classes of person: those who can afford to go to a hospitality suite and those who cannot. Where will the balance be in that?

280. Mr Scott: Again, it will be risk-based. Those who go to hospitality suites are not generally the people who are associated with disorder. The minority who do engage in disorder are, unfortunately, almost exclusively on the viewing decks. Those in corporate boxes are limited as to what they can do.

281. The Chairperson: We have to stop there; we have run marginally over the time allocated for this session. I thank Mr Harkness and Mr Scott for their briefing and for taking members' questions. I understand that they will be staying with us in the Public Gallery.

282. We now move on to take evidence from representatives of Ulster Rugby, the Irish Rugby Football Union (IRFU) Ulster Branch and the Ulster Rugby Supporters' Club. I welcome to the meeting Ms Lyndsey Irwin, the senior manager of external relations at Ulster Rugby; Mr Iain Campbell, the chairman of the Ulster Rugby Supporters' Club; Mr Robin Cole, the senior manager of external relations in the IRFU Ulster Branch; and Mr Joe Eagleson, the past honorary secretary of the IRFU Ulster Branch. I ask the witnesses to brief the Committee on the sports clauses in the Justice Bill for no more than 10 minutes. Committee members will then have 20 minutes in which to ask questions.

283. Ms Lyndsey Irwin (Ulster Rugby): I thank the Chairperson and Committee members for the opportunity to present our thoughts on the Justice Bill.

284. The Committee will note that our written submission centres on one clause, clause 43, which relates to the possession of alcohol during the time period of a regulated match. We oppose the inclusion of Ulster Rugby in that clause. At Ulster Rugby, we are justifiably proud of the warm welcome that our supporters and the supporters of opposition teams can expect at Ravenhill. We pride ourselves on the safe, family-friendly atmosphere at our matches, with supporters of both teams enjoying the action side by side. Supporters are from a wide age range, and the ability to enjoy a sociable drink while watching a match is very much part and parcel of the rugby experience. Therefore, we urge the Committee to reconsider the inclusion of Ulster Rugby in clause 43.

285. Clause 43 is inconsistent with legislation elsewhere in the UK and Europe, where the offence of being in possession of alcohol while in view of the pitch does not relate to rugby. Ulster participates in two tournaments that are played across England, Ireland, Scotland, Wales, France and Italy. If this legislation were to come into effect, Ravenhill would be the only rugby ground across those countries at which supporters could not enjoy a drink while watching the game; we would be very much out on a limb.

286. There is no evidence to support the inclusion of Ulster Rugby in clause 43. We have had no previous disorder problems or alcohol-related disorder problems at games. We take our responsibilities as both a governing body of sport and an event organiser extremely seriously. We have approximately 100 professionally trained stewards on duty at each game. Our games, which have average attendances of between 8,000 and 12,000 people depending on our opposition and the tournament, require support from only four to six police officers, who are concerned largely with traffic matters.

287. Clause 43 would have very grave implications for the future financial viability of Ulster Rugby. If it were to come into effect, it would likely impact on our ticket sales. As most of our matches are broadcast live on television, we may find that some supporters would choose to stay at home where they can enjoy a beer in front of the TV. Our sponsorship from our drinks partner and our income from our food and beverage franchisees would certainly take a direct hit. You will probably be aware that, in the longer term, we intend to redevelop Ravenhill, if we are successful with funding and planning applications. If clause 43 were to come into effect, it would be very difficult for us to increase spend per capita in our ground. As we have fairly limited facilities, supporters at Ravenhill spend, on average, less than £1 after they buy their ticket. In the English Premiership, that figure is closer to £10. If our stadium redevelopment goes ahead, that is an area in which we will really look to increase revenue. It is largely based on the provision of food and beverage in the ground and to people in their seats.

288. We may also find that we will have difficulty in attracting other rugby events. In February 2011, we will host Ireland A against Scotland A. If our stadium is redeveloped, we would like to host the Magners League Grand Final. We can only do that if Ulster is not in it, as that final has to be played at a neutral venue. However, the fact that we are unable to offer a full match-day experience to supporters of visiting teams is likely to be a detractor.

289. I have, more or less, summarised our written submission. Given that I have been so brief and that this is a joint delegation, I will pass over to Iain Campbell, the chairman of our official supporters' club.

290. Mr Iain Campbell (Ulster Rugby Supporters' Club): Thank you, Lyndsey, and thank you to the Chairperson and Committee members for this opportunity. I have submitted written evidence in the form of a short letter, and I will stress a number of points that are made in that. One of the supporters' club's aims is to advance public education, appreciation and understanding of the game of rugby. Indeed, I believe that we are availing ourselves of that opportunity here today.

291. I appear before you as a fan on the terrace. The written submission describes the experience of match nights at Ravenhill, where it is normal practice for fans of both sides to meet to enjoy the ambience of the evening and offer hospitality. The bonhomie always continues throughout the game and afterwards, regardless of the result. Indeed, it is common to see opposing fans standing side by side on the terrace, enjoying a drink and exchanging banter at each other's expense as the match unfolds. Safety and comfort is not a concern for our fans, but the proposals in clause 43 definitely are.

292. Match nights at Ravenhill have assumed a carnival air with the recent addition of the food village and pre-match and post-match entertainment. It is common to see fans, young and old — families, schoolchildren and youth clubs — mingling on concourses prior to the match and enjoying a wide range of food and drink. We pride ourselves on our Ulster hospitality and humour and consider ourselves to be in the vanguard of the promotion of all that is good about our city, country and sport. We also take great pride in the behaviour of all fans at Ravenhill, where respect for the visiting team is the order of the day, as evidenced in generous applause for displays of skill and silence for kicks at goal by either side. Indeed, in reference to what was said earlier, the only people at Ravenhill who, at times, feel discomfort are the referee or perhaps the visiting backs when they are underneath a high ball.

293. All our members know from personal experience of match nights over the past 10 years of professional rugby that crowd trouble at Ravenhill is non-existent. I stress that attendance has increased dramatically in recent years, which contrasts with the concern about falling crowd numbers that was voiced in an earlier submission to the Committee.

294. In my written submission, I have listed examples of discrimination and of how we as rugby fans and citizens of Northern Ireland would suffer as a result of clause 43. From our widespread travels as supporters, we know that the restrictions on hospitality that we are talking about are not imposed elsewhere. I have given the examples of Murrayfield Stadium in Scotland, the Liberty Stadium in Wales and stadiums in England. From our experience of travelling to support Ulster in rugby matches in Paris, Toulouse and Biarritz, we know that no restriction on the sale and consumption of alcohol applies there.

295. In response to the contention that the legislation would make attendance at Ravenhill more attractive, I say that clause 43 would have quite the opposite effect. Bearing in mind all the foregoing, we are at a total loss as to why legislators see any requirement —

296. The Chairperson: You have two minutes in which to conclude, Mr Campbell.

297. Mr I Campbell: We are at a total loss as to why legislators see any requirement to include rugby in the scope of this portion of the proposed legislation. We cannot state strongly enough how misguided we consider the proposals to be. It is our fervent hope that common sense will prevail and that the Committee will see fit to exclude Ravenhill from this clause.

298. The Chairperson: Thank you very much for your presentation.

299. Mr McNarry said earlier that one of the good things about rugby is seeing a whole blatter on the pitch.

300. Mr McNarry: Hang on a minute. [Laughter.] You pay your money.

301. The Chairperson: You are saying that you do not witness any of that at Ravenhill.

302. Mr Joe Eagleson (IRFU Ulster Branch): I will speak on that, if I may.

303. Rugby is a contact sport. Therefore, there will be contact on the field. That contact must be made within the laws of the game, which some of your colleagues referred to. In rugby, our referees and touch judges or assistant referees enforce those laws as fairly as they can on the field. If those laws are broken on the field, action is taken immediately, and there has been talk about yellow and red cards and the sin bin. If laws are broken to a great extent, action is taken immediately after the match by the controlling bodies of the competition and the governing body. We are well satisfied with how that action takes place.

304. The Chairperson: During another discussion in Committee, I tried to draw a parallel between cricket, which is not mentioned, and rugby. I know that those two games are entirely different, but it was the only comparison that I could think of, and you understandably highlighted that in your presentation. Do you feel that crowd behaviour at cricket games is on a par with crowd behaviour at rugby matches?

305. Mr Eagleson: I have already spoken strongly for rugby. I will leave cricket to speak for itself. However, like you, my perception is that crowds at both games may be on a par with each other. I read the evidence that departmental officials gave the Committee on 3 June, in which they talked about the perception that cricket is not a problem. To me, that implies that they perceive that rugby is a problem. However, neither the governing body nor our official supporters see it as a problem.

306. The Chairperson: In the evidence that departmental officials gave today, it did not come out strongly that rugby was a problem.

307. Mr Eagleson: It did not come out that it was a problem?

308. The Chairperson: Yes.

309. Mr Eagleson: No, it did not.

310. Mr McNarry: My problem with all of this is that, because soccer is being punished unduly, we are looking at the other sports. I have enjoyed times at Ravenhill, and you have perfected a unique atmosphere. Well done on that; it is a family environment. I do not know enough about GAA, but I am sure that that atmosphere also prevails at its sporting events. Somehow, people think that it cannot, does not or will not at soccer games, and that is part of the problem. From where are spectators able to get a container of drink at Ravenhill?

311. Ms L Irwin: We have private hospitality and a marquee bar — a beer tent.

312. Mr McNarry: That earns revenue for Ravenhill. You will lose money if the ban comes in. Without going into great detail, is that quite a money earner for you?

313. Ms L Irwin: It is substantial at present, but, if and when we have a redeveloped stadium, we will look to really increase the spend per capita, which will largely centre on food and beverages. Over the next couple of years, if our stadium is redeveloped, our aspiration is to make a total of £1 million a season in per capita spend.

314. Mr McNarry: In those circumstances, would that facility be considered to be private viewing, which has now been given an exemption?

315. Ms L Irwin: That money is totally separate from our income from corporate hospitality. I do not mind saying that our income from corporate hospitality is around £600,000. That centres largely on the new stand, which we built last year.

316. Mr McNarry: I know many people who go to Ravenhill on a Friday and who go to a soccer match or, I am sure, a GAA match on a Saturday or a Sunday. They feel that, as a supporter of soccer, they can go to Ravenhill and enjoy that hospitality but that, when they go to soccer games, they are viewed as some other kind of supporter and are unable to avail themselves of such hospitality. I hope that you will not say that that is their lookout or responsibility. Is it right that there should be a difference between the two sports when, in fact, that difference affects the one supporter?

317. Mr Eagleson: No, it cannot be right.

318. Mr McNarry: Do you think, therefore, that, for the law to be equal, it will deny you rather than let soccer supporters embrace the facilities that you have?

319. Mr Eagleson: That is the logical conclusion to that, unless rugby football is excluded from clause 43. As sports people, we want everyone to be able to enjoy a safe and welcoming environment for their sports. As our colleagues from Sport NI pointed out, there are two aspects to that. There is the physical environment, and there is the behavioural aspect. We have invested and continue to invest heavily in the physical environment and all of the safety factors around that, but we also invest heavily in the behavioural aspects through our stewarding arrangements and so on and the disciplines of our sport.

320. Mr McNarry: Irish League soccer has got a particularly bad press today and in the Bill. It appears that there is little argument about the behavioural patterns of people who attend international soccer matches. Those behavioural patterns seem to be similar to those of people who attend representative rugby matches. I do not want to put you in a difficult position, but do you feel that a better comparison to make would be to compare the sports as they are played at international level? That would show how they contribute to attracting guests from other parts of the world or other parts of Ireland.

321. Mr Eagleson: It is important that we have people coming from other parts of Ireland, the rest of the UK and the rest of Europe and that they have the same experience regardless of the international sport that they have come to support. The rest of it has to lie with each sport.

322. Mr McDevitt: To be clear, the relevant clauses do not make it illegal to drink at a game; they make it illegal to drink while in view of a game. In other words, they make it illegal to drink in your seat or on the terraces. During Irish Rugby's hugely successful sojourn at Croke Park, what rules applied? Did the traditional GAA rules that ban you from drinking in your seat apply, or did the IRFU allow spectators to bring their drinks to their seats?

323. Mr Eagleson: The traditional rules of the GAA applied.

324. Mr McDevitt: Did that have any impact on your income?

325. Mr Eagleson: There was a feel-good factor from moving to Croke Park, and there was no difficulty in the sale of tickets.

326. Mr McDevitt: It was a hugely successful move.

327. Mr Eagleson: In the Aviva Stadium, spectators are allowed to bring alcohol to their seats.

328. Mr McDevitt: And, of course, you cannot shift the tickets. [Laughter.]

329. Mr Eagleson: With or without touting.

330. Mr McDevitt: There is a serious point. I want to be very supportive and encouraging of the efforts made by Ulster Rugby. However, the specific provision in the Bill does not make it illegal to drink; it just makes it illegal to drink in your place. I am conscious of the Croke Park experience, where people are not allowed to bring their drinks to their seats, yet the move there was hugely successful.

331. Coming back to Ms Irwin's point about the redeveloped Ravenhill, which we all look forward to being a venue for great international games, it is not likely that the issue of drinking will be the barrier to its success. Do you not agree that a bigger barrier would be poor facilities generally?

332. Ms L Irwin: We still feel that it is a significant issue. I went to two matches at Croke Park. However, if I did not work at Ravenhill, I would be an Ulster Rugby season ticket holder and would go to games every other week. It is important to bear in mind that I might have gone to Croke Park for a game in November or February each year, but, as a more regular attender at Ravenhill, I might prefer to enjoy a drink in my seat at my regular venue.

333. Mr McDevitt: The argument that you are presenting is that being able to have a drink in your seat is part of the culture, experience and, as such, the brand at Ravenhill.

334. Ms L Irwin: Yes, and it is a very positive one.

335. Mr McDevitt: Mr Scott, who gave evidence before you, talked about the importance of weighing up the circumstances and assessing the risk. He was saying that you should try to come to a mature judgement about allowing such behaviour and what the implications would be. What sort of risk assessments do you carry out at the moment? How did you come to the view that it is quite OK to stand on the terrace and enjoy a beer while watching the game?

336. Mr Eagleson: Mr Scott referred to the Safety of Sports Grounds (Northern Ireland) Order 2006. We are fully compliant with that, but for each individual event or match that is held at Ravenhill, we carry out a risk assessment. For example, there will be different arrangements for the Schools' Cup final on 17 March, which predominantly involves schoolchildren and attracts one of the biggest crowds of the year, than there will be for a Magners League or Heineken Cup game. There will not be sale of alcohol at the Schools' Cup final.

337. Mr A Maginness: I want to understand the situation in England and Wales. Are spectators able to drink on the terraces at soccer matches there?

338. Ms L Irwin: It might be easiest to look at it in the context of shared grounds.

339. Mr A Maginness: Cardiff is a shared ground.

340. Ms L Irwin: Yes, and the Madejski Stadium just outside London is another example. If you go to watch Reading Football Club play on a Saturday afternoon, you are not allowed to have a drink in view of the pitch. However, if you go to the same venue on a Sunday afternoon to watch London Irish, you can take your drink to your seat.

341. Mr A Maginness: The law in England and Wales has allowed that to happen. Theoretically, if we were to follow their example, we could have a difference in the law here as well. I have not made up my mind on this issue, I am just trying to work through it. I assume that the English position is based on the experience of rugby fans' behaviour at matches, and they have been given a by-ball. Has there been any difference in rugby fans' behaviour subsequent to the position being changed in England?

342. Ms L Irwin: Not that I am aware of.

343. The Chairperson: Your sponsors are Magners and Heineken. What impact, if any, would clause 43 have on that sponsorship?

344. Ms L Irwin: Heineken is our drinks sponsor. Heineken pays us for the right to pour Heineken and no other lager in the ground. We participate in two tournaments that are named after alcohol brands: the Magners League and the Heineken Cup. Those reinforce rugby's link with being able to enjoy a sociable drink. We have certain obligations to stock those brands in our bars at Ravenhill. For example, 25% of the tap and fridge space has to be Magners on a Magners League night.

345. Clause 43 would not prevent us from participating in those competitions, but it would endanger the substantial sponsorship fee that we receive from Heineken each year. Similarly, if the Magners League were hosting its grand final between, say, Leinster and the Ospreys, and was looking for a neutral venue, a redeveloped Ravenhill could fit the bill, and it would be a considerable earner for Ulster Rugby. However, Magners, the title sponsor of the competition, will have a limited time frame in which to sell its product, and the fact that we cannot offer the full match day experience may rule us out of being selected as the venue.

346. Mr Givan: The purpose of the clause is to try to ensure good behaviour, and I am hearing that there is good behaviour. What are your processes for dealing with an individual who behaves badly? Do you remove that individual? Do you ban that individual from matches? What do you do voluntarily to deal with the rare occasion on which behaviour is a problem?

347. Mr Eagleson: The stewarding arrangements would deal with that. If it were felt necessary to take the individual out of the ground, either for the safety of that individual or any other spectator, that individual would be removed from the ground. We have never had to ban an individual for a period, but the governing body has the power to ban individuals from grounds.

348. Mr Givan: Such a strong connection between sport and alcohol irks me slightly. Sport is about healthy living but, then, a connection is made with alcohol. However, this legislation is not about that; it is about good behaviour. Your point that there is good behaviour is key.

349. The officials have said that they are not bringing in ticket touting measures for rugby because they do not need it for safety reasons. How much of an issue is ticket touting for rugby from a commercial point of view?

350. Ms L Irwin: I cannot speak on behalf of the IRFU, but it is definitely not an issue for Ulster Rugby.

351. Mr Eagleson: If ticket touting is identified, the IRFU has a process to deal with it. Each ticket can be traced back to its source and action is then taken.

352. Mr Robin Cole (IRFU Ulster Branch): The union enforces it rigorously. I found that out last year, when an individual in my club put a ticket on eBay and, within 12 hours, the union was on his back.

353. Mr O'Dowd: Thank you for the presentation. In the past year, how many people have been arrested in your grounds for disorderly behaviour?

354. Mr Eagleson: None.

355. Mr O'Dowd: Does that include referees? [Laughter.] I asked the question because I suspected that that was going to be the answer. To clarify: I have not made up my mind on any of the aspects of the legislation. I do not want legislation to be introduced just for the sake of it.

356. There is a concern about the consumption of alcohol in public. If there were a code such as that which exists in the IRFU, which serves alcohol responsibly and people can enjoy it responsibly, why would we ban it? To date, I have not heard any evidence as to why we would. That is more of a statement than a question.

357. Do stewards ever have to eject people from your grounds?

358. Mr Eagleson: It is not a problem.

359. Ms L Irwin: There are clauses in the Bill to deal with missile throwing and chanting. Those are not problems that we encounter, but we do not object to those clauses as we do to the clause about possession of alcohol because they do not have the same ability to impact on us and affect us financially. That is why we zeroed in on clause 43.

360. Mr O'Dowd: Joe mentioned that, if an individual has a record of misbehaving, the IRFU can ban them from the ground. Is that an indefinite ban?

361. Mr Eagleson: It is a private ground; therefore, we can take that action.

362. Ms L Irwin: That would be part of our ground regulations.

363. Mr Eagleson: Obviously, we have to monitor that.

364. Mr O'Dowd: I understand. Thank you.

365. The Chairperson: We are stopping there. I thank the rugby delegation for their briefing. You are welcome to stay on in the Public Gallery if you wish. You are your own bosses in that sense.

366. We will move on to the next presentation, which is from the representatives of Ulster GAA. Papers are included in members' packs. I welcome Danny Murphy, provincial director; Ryan Feeney, head of public affairs; and Stephen McGeehan, head of operations. Gentlemen, you are very welcome. You will have 10 minutes for your presentation, after which, there will be 20 minutes for questions and answers.

367. Mr Danny Murphy (Ulster GAA): Mr Chairman, I thank you and the Committee for affording us the opportunity to be here. We submitted our response and attached our ground regulations. From reading that, you will see that we are already applying many of the Bill's provisions under our regulations. However, we have concerns about some aspects of the Bill. We believe that the requirements about how a game becomes regulated need to be examined. We also believe that paragraph 6(b) of schedule 3 takes the scope of the legislation too far.

368. The safety of sports grounds legislation identifies two types of designation. First, grounds are designated, which normally applies to the main county grounds that we use, the grounds used by the two top leagues in Irish Football Association competitions, the ground used by Derry City and that used by the Ulster Branch of the IRFU. Secondly, stands can be designated, which includes those in grounds that are used almost entirely by clubs. The scope of that aspect of the Bill would bring designated stands within the legislation, even though the games being played there would not be part of any planning by us or by the safety advisory groups that would be set up under the safety of sports grounds legislation. We believe that paragraph 6(b) of schedule 3 being included in the definition of regulated games poses a serious problem.

369. We also believe that regulated games should be within the ambit of the safety advisory group, because all the relevant bodies sit on that group. They alone should determine when a game is regulated and, therefore, whether this legislation applies to a game. Stephen McGeehan and I went over to look at the operation of Vicarage Road, where two different games were played on the same weekend. Watford FC play there on Saturdays and are regulated and Harlequins, the rugby club, play there on a Sunday but are not regulated. Therefore, the rules about consuming alcohol while viewing the pitch are entirely different at the same venue on consecutive days. In taking this matter forward, we should look at best practice rather than taking a forceful view.

370. We have five specific points to make. Clarification must be provided to identify which measures apply to GAA events and which do not. As drafted, the Bill is confusing and could lead to errors in interpretation. We assume that paragraphs 7 and 8 of schedule 3apply to the GAA and that any clause that refers to those paragraphs applies to us. However, that may be an entirely wrong understanding.

371. The commencement orders for introduction should not be relied on solely to create exemptions. We believe that, in taking some of those matters forward, different sports might need entirely different requirements placed on them. That is why we believe that regulation is better dealt with by safety advisory groups rather than specific legislation.

372. The Bill needs to confirm that venue operators are in overall control of their events and that the safety of sports grounds legislation does not currently demand the presence of the PSNI at all fixtures. Therefore, it is conceivable that some cases may arise where circumstances outlined in the Bill are enacted by a sporting body or members of the public and not by the PSNI. The Bill needs to take account of similar measures that have applied to British sport, particularly to association football fixtures and to rugby fixtures in England where, in the same venue, different arrangements apply depending on the sport being played.

373. We are concerned that, in setting out the definitions of regulated matches, the association that we represent and that controls Gaelic games is not defined. We would not want to be looking at a potential loophole some time in the future. The fact that we, as a governing body, are not defined, means, as we interpret it, that we are not covered by it.

374. Mr Stephen McGeehan (Ulster GAA): There are definitions of UEFA, FIFA and other sporting organisations such as the Irish Football Association and the Ulster Branch of Irish Rugby, but there is no equivalent reference to the Ulster Council of the Gaelic Athletic Association.

375. Mr D Murphy: I will make a couple of final comments. We are concerned that the word "chanting" has been added to cover a paragraph when, in all the consultative documents, the exact term that was used was "offensive chanting". Chanting may not necessarily be offensive.

376. We have precluded spectators from going onto the playing area for quite some time. Again, we believe that the relevant provisions need to be re-examined. If someone goes onto the playing area against the ground regulations, he or she is breaking the ground regulations and can be removed from the ground. If someone goes onto the playing area to celebrate after a game, it may not necessarily be something that we would want to prosecute them for. We would not want someone to have a criminal record for simply having spontaneous enjoyment. We need to look at those aspects.

377. We have absolutely no difficulty with the part of the legislation that deals with the possession of fireworks and flares. Stephen will talk about people using alcohol at a game and in transit to and from games.

378. Mr McGeehan: As responsible event promoters and as a governing body of sport, the Ulster GAA has significant experience from managing crowds of 67,000 right down to the 3,000 or 4,000 people who attended club fixtures last weekend. There is no doubt that the irresponsible consumption of alcohol is an issue for the governing bodies of all sports, particularly at games. As Danny mentioned, our ground regulations refer to and deal with that specifically. We welcome any controls that assist us as a governing body to address those matters. However, as was mentioned, we feel that that is best done under the general application of the safety certificate provided by the local authority and within the responsibility of the event controller in the organising of our games.

379. The Chairperson: You have two minutes, Mr McGeehan.

380. Mr McGeehan: In relation to the possession of alcohol in our grounds, we suggest to the Committee that application of the legislation that applies in England and Wales is worth considering when it comes to being more specific about the level of application for different sports. The GAA is probably best placed, having used Croke Park to manage other fixtures including soccer and rugby, to know that the governing bodies in control of the fixtures should have a level of autonomy and be able to look at the profile of their spectators and the categorisation of fixtures from a risk assessment point of view. We ask for that control to be afforded to governing bodies.

381. As Danny mentioned, we very much welcome any measures that stop situations in which buses arrive at grounds and the supporters on them cause a public disorder or a difficulty, not just in our own grounds, which is our primary responsibility, but in the towns and cities in which games are played. We support wholeheartedly those suggestions.

382. There will be some difficulties for us as a governing body, given that only two thirds of our association will be affected by the legislation. As a governing body, we have responsibility for Cavan, Donegal and Monaghan, so we feel that a cross-jurisdictional partnership with the relevant authorities is important.

383. Finally, the legislation is akin to living next door to someone who makes too much noise at night but having a noise abatement served on you as well as that person. A lot of the legislation applies specifically to other sports. The working out of the legislation needs to ensure that the GAA is not, as Danny said, entrapped by provisions that are not intended to deal with issues that exist within our games.

384. Sir Reg Empey: Danny mentioned that the inclusion of stands that hold 500 or more meant that that provision applied right down to your club level. I missed the rest of your point: what was it?

385. Mr D Murphy: Most of the safety of sports grounds legislation applies to designated grounds, which have been agreed by the Assembly. However, the legislation refers to designated stands, which means that stands with a capacity of over 500 have to be approved within the same process by the local authority and others, to show their compliance with the legislation.

386. Our point is that having a stand that allows 540 to sit in it should not mean that every game played at that level becomes regulated, as the legislation would require. That would have significant consequences and could lead to an under-10 game with 30 people present being regulated. The implications of that for an organisation would be enormous.

387. The most recent year for which we have complete figures is 2009, during which almost 22,000 games were played in our jurisdiction. Therefore, it would be impossible to ensure that the same regulations applied at every ground in every one of those games. The legislation is attempting to deal with the designated grounds rather than the designated stands. Paragraph 6(b) of schedule 3, which covers designated stands, is superfluous and should not exist.

388. Sir Reg Empey: Are you suggesting the elimination of any reference to stands or are you suggesting a higher threshold?

389. Mr D Murphy: I am simply saying that the reference to a designated ground is all that is required and that the reference to a stand in paragraph 6(b) of schedule 3 is superfluous. It does not solve anything for anyone and creates a problem. Its enforceability is impossible.

390. Mr McNarry: You are welcome. Stephen, you said that we should look at the profile of spectators. Can you expand on that? What did you mean?

391. Mr McGeehan: As most members will be aware, under the safety of sports grounds legislation, there is an ongoing process by which local authorities issue each of the venue operators in the grounds with safety certificates. As part of the issuing of those safety certificates, games are categorised as low risk, medium risk or high risk. The Gaelic Athletic Association has a profile of families, males and females attending our games, and we believe that the research that exists on that should be taken into consideration when dealing with issues of alleged disorder. Therefore, the process should be rolled out in a way that takes account of grounds that have been designated and, in turn, provided with a safety certificate. That gives the venue promoter more opportunity to manage the events responsibly.

392. Mr McNarry: Do your sports attract bad conduct in the forms that we are looking at: missile throwing, chanting, pitch incursion, firework possession, drunkenness and possession of containers?

393. Mr D Murphy: No. I do not know whether our response paper has been circulated to the members. It states that, under the ground regulations that apply to all of our games, that behaviour is prohibited and results in entry being refused or spectators being removed from the ground. I do not recognise that type of behaviour.

394. Mr McNarry: That does not prevent it from occurring.

395. Mr D Murphy: We try to ensure that it does not occur.

396. Mr McNarry: That is great, but I need to know more about how you achieve that. We heard from the departmental officials that the PSNI will administer the law against people who offend. One does not know who will offend and who will not, so there has to be a police presence. Would the presence of the police at your games to see that the law is being observed properly concern your stewards?

397. Mr D Murphy: I will make two points in response to that question. First, all of our games are subject to pre-event planning between us and the PSNI, and the PSNI has a direct involvement in overseeing the games, so that does not present an issue. Secondly, this legislation and the safety of sports grounds legislation, which is the core legislation, do not require police to be present at games. A regulated game is a regulated game. There is nothing requiring a police person to be present.

398. That brings us to chapter 6, which deals with enforcement. That will create a significant issue for the PSNI and for the courts, because we cannot find any provision for the evidence to be procured. If police officers are not present when someone commits an offence that is set out the Justice Bill, how will the police bring forth a prosecution? Do they have the authority to use ground regulations, such as using CCTV as evidence, or would they take statements from as many people as they want to? Given that some of our games can have 30,000 people at them, that could become quite a prolonged job. You make a critical point: you can have all the rules in the world, but, if you cannot enforce them, they are not worth having.

399. Mr McNarry: My point is precisely that. It is about enforcement, and, if the legislation is passed, equal ability should be available to enforce it at any venue. I compliment you on how you regulate the running of your affairs, and I have always done so. My concern is that, because of the manner in which your organisation presents its sports, there is, perhaps, a view that you can look after yourself.

400. That is not to put your organisation outside the law. However, in my view, other sports are being picked on — you may feel that your sport is being picked on as well — and there is a question mark over their ability to deal with situations. Therefore, there will undoubtedly be a police presence at their venues to look into these new laws and to enforce them. Indeed, there already is a police presence. My concern is enforcement, and, as a Committee, we need to look at that fully.

401. I just want reassurance that your organisation does not consider itself outside, above or exempt from the law in the very fine manner in which it runs its matches and deals with spectators and so on. I have a problem with what I have seen on my television screen of what goes on on your pitches — what happens on other pitches has been referred to — and that is a matter of education. Can the PSNI gain access to one of your pitches to assert the law in the event of public disorder?

402. Mr D Murphy: As far as I am concerned, nothing that we have done or plan to do would prohibit the application of the law; quite the reverse.

403. Mr McNarry: So, there is a police presence at your matches.

404. Mr D Murphy: Yes; police are already present at our major games.

405. Mr McNarry: That is good.

406. Mr D Murphy: Before any requirement was placed on us, we carried out pre-event planning with the police and others. We go to great lengths to ensure our compliance with the law. We are discussing the Justice Bill here, but we believe that, in many ways, the safety of sports grounds legislation is the core legislation. The clauses in the Justice Bill that deal with sport cover the essential areas that need to be examined. However, they need to be brought forward as a requirement to be placed on a sport as distinct from a broad spectrum attack on all sport. As far as we are concerned, people who break the law have to amenable to the law. However, it is pointless creating offences if enforcement will be particularly difficult. That is one of the reasons why our response refers specifically to enforcement.

407. Mr McNarry: The response is exactly as I hoped it would be: pointed and well made.

408. The Chairperson: Do you have discretion to ban players or spectators from your grounds?

409. Mr D Murphy: Under our association's constitution and rules, we have the authority to prevent from entering the ground anyone who breaks the law. We also have the right to expel such people from the association altogether.

410. The Chairperson: Have you done that often?

411. Mr D Murphy: We have dealt with it when required. Most incidents can be dealt with through a lesser penalty such as a period of suspension or prohibition from certain privileges — it depends on the level. However, we do expel people from the association, and we will do so if the need arises.

412. The Chairperson: Your submission states that the consumption of alcohol is not permitted within grounds and that spectators are not permitted to bring alcohol into the stadium.

413. Mr D Murphy: That is correct. I have been event controller for the Ulster Council since 1992, and, in that time, we have always applied that standard regulation. During high season in the summer, we are often roundly criticised in the letters column of newspapers for removing alcohol from people en route to a game. We put up steward barriers on the approaches to grounds and remove alcohol.

414. The Chairperson: What about sponsors? Do you, for instance, have sponsorship from drinks companies?

415. Mr D Murphy: We have one drinks sponsor in hurling, namely Guinness, which sponsors the hurling championships. Outside of that, we are not directly involved with any other alcohol company.

416. The Chairperson: Are there any conditions to that sponsorship by Guinness that specify that its product must be available?

417. Mr D Murphy: Absolutely not. We believe that that would be a restraint on trade.

418. The Chairperson: Your submission also says that:

"Under no circumstances is it permitted to throw any object onto the pitch."

419. What would happen to an individual who took the liberty to do that?

420. Mr D Murphy: We have gone as far as having people arrested. If someone can be identified, either from CCTV, by the stewards in the precinct or by any other means, we will take appropriate action. In the past, people have been arrested.

421. The Chairperson: Have you any reason to believe that player behaviour on the pitch — perhaps "misbehaviour" is the word — can encourage misbehaviour in the stands?

422. Mr D Murphy: That is not specifically a matter for the Justice Bill. However, again, we deal very clearly with any indiscipline. We apply substantial penalties to the individuals involved and to the units that they represent. In other words, if they represent a club, the club would be dealt with; if they represent a county, the county would be dealt with. As far as we are concerned, we have a good disciplinary policy and code that is rigorously applied by the association. It is not specific to the Bill. However, if you want me to respond to the question of whether bad behaviour in one place contributes to bad behaviour somewhere else, the answer is probably yes.

423. Mr O'Dowd: As a party, we have not made up our minds as to where we will go with certain clauses in the Bill, particularly those around sport. However, I share the concern that we are making law for law's sake.

424. When it comes to your regulation and governance of matches, does the 2006 safety of sports grounds legislation provide adequate infrastructural safety for grounds and adequate spectator and participant safety at grounds?

425. Mr D Murphy: The short answer is yes. The safety of sports grounds legislation was much-needed legislation. It was passed in February 2006 at Westminster in London, but it became operable only on 1 January 2010. Therefore, the legislation is very much a work in progress. A number of matters have been resolved: grounds are now designated, capacities have been established and, in most cases, safety certificates have been issued. Consequently, the legislation is at a starting point from which it can be properly applied.

426. Outstanding matters still need to be addressed. There is a requirement for some further development to comply with the new legal requirements. I do not want to start getting technical, but the S factor — safety management — needs to be brought on board. The safety management side and the physical capacity side are of equal importance. To meet the S factor, more supervisors need to be trained and more people who do my job need to be trained. Otherwise, we will find that we will get to the stage where, given the legal responsibilities being placed on people running matches, nobody will want to run them. Therefore, the S factor needs to be addressed. Some work has been done, but there is a lot more to be done.

427. Mr McGeehan: It is important to say that, although we are in times of austerity and public finances are being scrutinised for value for money, the application of the safety of sports grounds legislation is only as good as the physical condition of the grounds to which it applies. For everyone involved in public services, there is undoubtedly a responsibility to try to ensure that finances are made available to try to improve the condition of those grounds, otherwise, in antiquated facilities, fulfilling aspirations such as asking spectators and supporters to behave better will be a challenge.

428. Mr O'Dowd: Danny, you said that the Order only came into being here on 1 January 2010.

429. Mr D Murphy: The legislation was passed in Westminster in February 2006. It was the direct rule Minister Mr Hanson who brought it through. The legislation finally came into effect on 1 January 2010. Safety certificates have been issued to grounds over the past eight weeks. Capacities have been established, and work is ongoing on the safety management side.

430. If a ground that holds 10,000 has an S factor of six, its capacity becomes 6,000. So, there are ramifications. How well you manage your ground will have implications for your capacity. Therefore, there is still work to be done.

431. Mr O'Dowd: My final point is about the training of stewards and staff within grounds to ensure the safety of spectators. In a majority of cases, if not in all cases, stewards are volunteers. Under the legislation, part of the role of the steward will be that of a police officer. For instance, if somebody throws an object — a scarf or a top, for example — in the ground, a steward will have responsibility for witnessing a criminal offence.

432. Mr D Murphy: That is possible. However, the bottom line is that we have our own regulations — they are listed in our submission — and the issue is how we apply them. That is why it is important that we take account of the complete management structure. If someone is perceived to be breaking, or attempting to break, one of the ground regulations, the steward's duty will be to prevent that. So, the person in question will be approached and advised that he or she is in breach of regulations. If that does not happen, the decision-making power passes to the supervisor at the next level. We do not have all the right people qualified to deal with the legal issues, as you correctly pointed out.

433. The legal issues go back to what we said about enforcement. We raised the issue. If the PSNI is not present at a game — the law states that it does not necessarily have to be present — it could be very difficult to present evidence and use CCTV footage to bring forward a prosecution.

434. The Chairperson: Thank you very much for the briefing and for taking questions, gentlemen. You are welcome to stay in the Public Gallery, because the departmental officials will be coming back to answer questions on what has been said. Thank you very much for coming.

435. Mr D Murphy: Thank you very much.

436. The Chairperson: The next briefing is from the Irish Football Association. I welcome Patrick Nelson, who is the chairman, Terry Pateman, who is the vice-president, Hugh Wade, who is the director, and Stephen Grange, who is the national security officer. You are all very welcome. You have 10 minutes to make your presentation, and we have set aside 20 minutes for questions afterwards.

437. Mr Patrick Nelson (Irish Football Association): You introduced me as the chairman; I am the chief executive.

438. The Chairperson: I beg your pardon.

439. Mr Nelson: Thank you very much for the opportunity to give evidence to the Committee. The road to our being here started 130 years ago today. There was a meeting in the Queen's Hotel in Belfast of representatives of a number of clubs that were playing what was called Scottish rules football. They resolved to create an Irish football association. That was on 18 November 1880. So, 130 years on, we are here in front of this fairly august Committee. I am sure that they never thought that would happen.

440. The Chairperson: It has been a long struggle for you over the years.

441. Mr McNarry: Were you playing then, or were you just a reserve? [Laughter.]

442. Mr Nelson: Thanks again for the opportunity to give evidence. We will make a very short presentation. We sent a written submission to the Northern Ireland Office in November 2009, when the original consultation on the legislation took place. We provided a short supplementary letter to the Committee yesterday.

443. We believe that the Justice Bill, as it pertains to sport and football in particular, is part of a package of measures that will make football safer for spectators in Northern Ireland. That package includes the safety of sports grounds legislation, facility development and the training of stewards, and work on those issues has been ongoing for a while now.

444. Our original submission and the recent ones were broadly supportive of the proposed legislation. We note a number of changes to the original documentation from last year, in particular, the removal of reciprocal banning orders with Great Britain. We are not sure whether that makes sense, particularly given the prevalence of what we might call football tourism between Northern Ireland and GB, in that many of our supporters sometimes choose to spend a proportion of their money following clubs in England or Scotland. Consequently, if they receive a banning order over there, it would make sense for them to be banned here, and vice versa. We think that it is an omission to not have use of a civil banning order route, where police can make a summary application to magistrates to exclude troublemakers from games without a criminal conviction. That is an opportunity that may be missed.

445. We note the restrictions on consumption of alcohol, and we broadly support those, with the proviso that corporate hospitality and membership activities cannot be adversely affected. In particular, we ask the Committee to consider closely whether the timings for the regulated period in clause 43 — two hours before and one hour after a regulated game — might be a little excessive in the circumstances.

446. As I said, this is a fairly short presentation, because we put most of our information in the original submission that we provided some time back. We again thank the Committee for the invitation to be here today, and we look forward to working with colleagues across all Departments to continue creating a safer environment for sports and football supporters throughout Northern Ireland.

447. The Chairperson: Thank you very much, Mr Nelson.

448. Do you think that the legislation is necessary?

449. Mr Nelson: I think that it is helpful. However, it is difficult for us to judge the degree of necessity. It is helpful, because it will go towards creating a safer environment for football supporters. We note that it relates to, in particular, games in the Premiership and the Championship in Northern Ireland and does not stretch throughout the football pyramid. It is for the more significant and senior games.

450. The Chairperson: On a few occasions, Irish League matches have been in the headlines for the wrong reasons. Will the legislation help to eradicate that?

451. Mr Nelson: Can you give me an example?

452. The Chairperson: The one that springs to mind is the infamous game between Newry City and Larne that ended up in a bit of a fracas. Much of that started on the pitch, of course.

453. Mr Nelson: Realistically, that was more of an on-pitch issue, and we deal with that sort of thing through our internal disciplinary procedures. That is what we did in that case. The legislation is not aimed at that sort of issue; rather, it is aimed at ensuring that supporters watching such games are not drawn into antisocial behaviour. We, therefore, support it from that point of view.

454. The Chairperson: You were not here for the officials' presentation at the start of the session. They cited some games that had to be stopped, in particular, the Glentoran game. Will the legislation help to deal with those sorts of scenarios?

455. Mr Nelson: Again, that probably predates my being here. Someone else may be able to comment on that.

456. Mr Stephen Grange (Irish Football Association): The Bill sets down clear guidelines on what is acceptable behaviour in football grounds and what is not. In the past, some of the difficulties that we have had have included dealing with pitch incursions, racist abuse and sectarian abuse of players. From our perspective, the Bill sets out clearly that that behaviour is not acceptable and that it is not a matter of determining or believing the extent of it; it sets out clear markers about what is acceptable. The big challenge is getting families and other people back to football by making them feel that it is a safe environment. The Bill sets out, for the first time, clear guidelines for spectators on how they should behave when they come to events. From that point of view, we find it helpful.

457. The Chairperson: Is stewarding at matches done purely by volunteers?

458. Mr Grange: No, there is a mixture of stewarding. We bring in professional stewards who are trained to Security Industry Authority (SIA) standards to do certain aspects inside the ground. As you point out quite properly, some of the other stewarding is provided by volunteer stewards. We also have club stewards who have undergone training to deal with certain matters but not with conflict or with separation of supporters. We bring in other trained stewards to do that. So, there is a mixture of types of stewards, each of which is regulated to do certain tasks.

459. The Chairperson: You obviously have the power to ban players and spectators who make a nuisance of themselves for whatever reason. How often have you exercised that power?

460. Mr Grange: We do not do that on behalf of clubs. I will let Hugh, who is a club chairman, speak, because it is the responsibility of clubs to deal with that.

461. Mr Hugh Wade (Irish Football Association): As well as being a director of the IFA, I am also chairman of the Premiership Management Committee and of Coleraine Football Club. At Coleraine's last home game, three spectators encroached on the playing area after we scored a goal. They were identified by the police, and we also had them on CCTV. We have written to those people and banned them from the Showgrounds.

462. The Chairperson: Have you banned them for life or for a certain period?

463. Mr Wade: We have banned them until the end of this season, and the ban will be reviewed then. We want a safe environment for all attending in order to increase attendance and to encourage more families and more females to attend our games. My understanding is that the Bill will not affect corporate hospitality at football grounds, on which we rely heavily to raise funds on match days. We invite sponsors and businesses to our club for hospitality, and we have executive club members who can view the match from our viewing lounge and have a drink if they wish.

464. The Chairperson: If a player felt that he had been tackled with vengeance on the field, could he take action under existing legislation?

465. Mr Terry Pateman (Irish Football Association): Yes, that is correct. There have been a number of cases in which players have taken another player to court.

466. The Chairperson: Not often, but occasionally.

467. Mr Pateman: Very occasionally. There is probably one case currently in the courts.

468. Mr McNarry: You are welcome, gentlemen. You represent what is my national sport, and, therefore, you come here with massive responsibilities. From my reading of the legislation, it is your sport that is under the closest scrutiny and, perhaps, under the cosh. We have been told today that the legislation could put gates up to 14,000 spectators at games. That begs the question: why could that not have happened without the legislation? The Bill contains only tweaking bits of legislation. You have said that you want to increase the numbers of families that attend and that the legislation is probably a method of doing that. There is a gap. What on earth has been done to realise that ambition long before the requirement for legislation? I am not sure that we need this legislation.

469. The legislation seems to portray a type of visitor to soccer matches — not a fan, I would add. That seems to be the root cause of part of the legislation being directed at your sport. It seems that the blame for conduct such as missile throwing, chanting, pitch incursion, firework possession, drunkenness and possession of containers is being levelled at your sport. The legislation seems to set out that the offenders in any of those categories will be at your sport — or our sport, if you like. I know that you have been doing things to address that, which is commendable. Where will that end up? Could the efforts that you will tell us about result in people like me asking for certain aspects of the legislation to be reconsidered?

470. Mr Grange: There are a number of issues there. This legislation does not stand alone. It comes on the back of other legislation on safety at sports grounds. There is a major thrust to change the attitude at sports grounds, particularly football grounds, from security to safety. We want to move away from having fences and so on. Under safety of sports grounds regulations, we are obliged to open up grounds so that people have access and can evacuate freely. Responsibilities and difficulties come with that.

471. All the things that have been talked about, such as fireworks and drinking, are based on experience and reality. The sad thing is that we have had to cope with those matters in football over the past five years. Without the legislation, that has proved difficult not only for us in stewarding and managing games but for the police in determining what offences are taking place. We think that the legislation sets down very clear guidelines for the police and our stewards to act on and markers for behaviour. It is based on experience as, sadly, we have had difficulty with spectators.

472. Mr McNarry: Are you saying that a greater police presence and enforcement against those misdemeanours is what is needed to propel this to where we all want to be?

473. Mr Grange: No. The vast majority of people who come to football matches behave properly. The legislation is designed to deal with those who do not behave. There are issues around that that will have to be addressed. Opening up our grounds and shifting the focus from security to safety brings responsibilities. The legislation sets down a clear marker to those people who do not want to behave that there are enforcement policies and actions that can be brought to bear. We hope that we do not have to use those. We hope that people will realise that certain behaviour is not acceptable and that they will not be able to behave like that. This legislation comes on the back of two other pieces of legislation relating to grounds and stewarding. In fact, enforcement is probably coming before the grounds are ready to deal with it. That shortfall is being taken up through stewarding at the moment.

474. Mr McNarry: What will happen overnight that will mean that those typecast people are not there anymore?

475. Mr Grange: The experience with the legislation in England, Wales and Scotland has been that change does not happen overnight but that the legislation does change behaviour. It has brought about significant improvement in behaviour, especially in Scotland. We looked at how Scotland dealt with the situation, and that has been a major factor in our support for the legislation.

476. Mr Nelson: My experience as the chief executive of a small football league club in England bears that out. We only ever need to ban a very small number of people from the ground for that to act as a deterrent to other potential troublemakers. As a number of people have said, sometimes your worst supporters are your best supporters.

477. They are the ones who follow their club through defeat and victory, and to games that are 300 miles away on a Tuesday at 7.45 pm. For them, the pain of being excluded from games is huge. So, this sort of legislation does act as a good deterrent.

478. Mr McNarry: If it is your view that the legislation will be good for your sport, I have to listen to you as you are the experts. I am sure that we all agree that there is a distinct difference emerging from today's discussions between the work that has clearly been done with international games and the subsequent attraction for the whole country as opposed to what happens at games such as those cited by the Chairman. We have to bank that one.

479. Do you believe that, as a result of the legislation, a burden of extra costs will have to be met by local clubs?

480. Mr Nelson: I am not sure that I would entirely agree that there would be a burden of extra costs. The legislation, if implemented in anything like its current format, will serve as a deterrent. The long-term effect will hopefully be that our grounds will become safer and more welcoming environments for Carling Premiership games and Championship games.

481. To go back to Stephen's point: the legislation is part of a package. Steward training is important as are facilities and the state of grounds. Many of you will know that we are working with your colleagues in DCAL on packages for improving grounds. We have made some improvements already. For example, anyone who has been to Solitude lately will have seen two new stands, new floodlights and a new third generation pitch, which was launched just this week. That is probably a much more welcoming environment than Solitude would ever have been in the past. So, the legislation really should be seen as part of an overall package to make football grounds much more family-friendly and safe.

482. Mr McNarry: I do not want you to miss the point, which is that the legislation is directed at a specific type of spectator. That type of spectator is described in the legislation and is described as being most likely to go to one of your matches. To deter such a person or to enforce the regulations will require extra police. That is why I asked whether you think that your clubs will have to take on a cost burden.

483. Mr Grange: Our experience shows that to be the exception rather than the rule. We are saying that the legislation will bring clarity on what is acceptable behaviour. The vast majority of people will comply with the regulations. Where we identify a high-risk game or where bad behaviour has previously been reported, we will look to address that. However, I do not think that extra police will go to every game each week to watch to see whether someone is involved in offensive chanting or behaves in a certain way. That would certainly not be our expectation.

484. The Chairperson: Is the consumption of alcohol permitted in Irish League grounds?

485. Mr Grange: It is under certain circumstances. It depends on the provision of a club under the registration of clubs and whether they have viewing lounges. Therefore, each club would be different. The policy would certainly be that there is no consumption of alcohol during the game or in the periods just before or after. That seems to work across the board. Those provisions are in other legislation.

486. Mr Wade: I mentioned corporate hospitality. A number of Premier League clubs depend on corporate hospitality on match days for their sponsors and businesses. That is where they get some extra revenue. Their viewing lounges, as I said, are where they have their executive members, and that also results in extra revenue on match days. It is the same for the Milk Cup finals. When those games are played at Ballymena Showgrounds or Coleraine Showgrounds, there is corporate hospitality.

487. Mr McNarry: They all drink milk, aye? [Laughter.]

488. Mr Wade: The players do.

489. Mr McNarry: David McClarty does not.

490. The Chairperson: Mr O'Dowd? Sorry, Mr Maginness, do you have a supplementary question?

491. Mr A Maginness: I suppose that it does follow, but, if you want to bring Mr O'Dowd in, that is fine.

492. Mr O'Dowd: I am easy, go ahead.

493. Mr Maginness: No, please.

494. Mr McNarry: Do not fight, now, lads. Red card. [Laughter.]

495. Mr O'Dowd: We do not need to be regulated here.

496. Thank you for your presentation. As Mr McNarry said, the suspicion is that the legislation is directed at soccer. We have heard from the other two codes, GAA and rugby, which have different concerns. I may be exaggerating, but I think that you have overwhelmingly welcomed the legislation. From my perspective of where the legislation is going, I have concerns, but I have not come to a conclusion in my head.

497. Throughout your presentation, you continually said that the Bill would affect only a minority of people. Hugh has given us an example from Coleraine, where they take no nonsense, in which three people who went onto the pitch were banned until the end of the season. Why then do you need this legislation?

498. Mr Grange: That is perhaps a very good example. The difficulty that Hugh has is that those fans are banned only from Coleraine Football Club. Coleraine FC could be playing in Ballymena next week and those fans could turn up there and be a nuisance. They may then be banned from Ballymena United FC, but they could turn up in the next place.

499. Mr O'Dowd: Sometimes, in law, self-regulation is encouraged. If Coleraine were to write to Ballymena to explain that those three characters were causing problems, that would give Ballymena the right not to allow them in. That could be done through your club mechanisms.

500. I am concerned that we are bringing in legislation that not only covers people inside sports grounds but outside sports grounds, too. Clause 46(4)(a)(iii) states:

"where it appears to the court from all the circumstances that the offence was motivated (wholly or partly) by a regulated match."

501. That covers someone from when they leave their front door to go to a match until they go back home through their front door. The legislation is very draconian.

502. Mr Grange: Indeed, but the legislation has obviously been brought in in that way because of experience. Regrettably, we have had incidents of serious disorder in Belfast city centre that are directly related to behaviour before and after football matches. The legislation is broad so as to be able to deal with that.

503. I share some of your concerns, but it will be a matter of taking cases to court. It will not be for the Irish Football Association or the PSNI to impose a ban. Cases will have to go to court. My view is that magistrates would take a very serious view and that cases would have to be made very strongly for them to implement the banning order.

504. Mr O'Dowd: I know that, but the Chairperson highlighted a case this morning in which people ended up in court.

505. The Chairperson: That was a dummy one. [Laughter.]

506. Mr O'Dowd: I appreciate that, as a governing body, you are very strict on misbehaviour. On the other hand, as legislators, we have to ensure that we have the balance right in the legislation that we introduce.

507. Is it fair to say that the vast majority of Irish league games pass off without any incidents in the stands?

508. Mr Wade: Yes.

509. Mr O'Dowd: Is it fair to say that you implement your codes very robustly?

510. Mr Grange: Yes, within the constraints in which we have to do that.

511. We do not sit in isolation in this. We work very closely with supporters and get feedback and complaints from them about the behaviour of other supporters. Those are genuine concerns, and we have an obligation to find a way of addressing them. The legislation was presented to us, and we were asked whether we felt that it was the right avenue to go down. Based on the experiences of England and Scotland, we felt that we were the ones who were out of step. A lot of the problems seem to have been eradicated in Scotland, whose situation we see as probably being closer to ours. We hope that the legislation will do likewise for us.

512. Mr A Maginness: I want to say first —

513. The Chairperson: Let me just say that we are into the two-minute section.

514. Mr McNarry: Extra time. [Laughter.]

515. Mr A Maginness: Do I not get extra time?

516. The Chairperson: If you behave yourself you might.

517. Mr A Maginness: I welcome the IFA's efforts over the years to try to make football a friendlier and more family-orientated sport, and, in particular, its efforts to try to "de-sectarianise" the game. That is very important and very helpful.

518. Essentially, you are saying, "We have experienced problems, and we welcome this legislation. We may not welcome every dot and comma, but we welcome the legislation in general, because it is helpful in changing people's behaviour." That is the essence of what you are telling us. Irrespective of any other sport, you are talking about your experience as sports people.

519. Mr Pateman: We are talking from our point of view. I can remember, as a five- or six-year-old, going to Solitude or The Oval.

520. Mr A Maginness: I can, too.

521. Mr Pateman: It did not matter who you were when you went through the turnstile; everyone was welcome. The crowds were bigger, and we did not have legislation. Society has changed so much in the intervening years that quite often you have to re-educate people. This legislation will help to re-educate from the top down: it will educate us, the clubs, and the supporters. Over the years, we will get to what we desire, which is to have each ground open to everyone so that anyone can walk in and enjoy a football match.

522. I have been making observations at our grounds over the past couple of years. There has been a visible change, because we know that legislation is coming and because of the safe sports grounds initiative, which has put an emphasis on stewarding in the grounds.

523. The number of police involved has dramatically decreased. It is now unusual to find a policeman at a football match. That is wonderful, because, five or 10 years ago, a police vehicle sat at the door, no matter what the match, even the most insignificant game. We do not have that now. Police numbers have also come down at high-risk matches because legislation has started to come in. That is making us all think and work. Therefore, that helps us.

524. Mr A Maginness: Will this legislation reinforce good behaviour?

525. Mr Pateman: I believe that it will.

526. Mr A Maginness: Does clause 43, which relates to drinking, give you sufficient scope to retain corporate hospitality?

527. Mr Grange: Obviously, we would seek clarity and certainty about that.

528. Mr A Maginness: That would be very important.

529. Mr Wade: It would be. I am not too sure whether it means that you can offer corporate hospitality as the game is played.

530. Mr Pateman: Corporate hospitality is very important, even for one match, because, when a company puts on an event, it helps to pay for that match.

531. Mr A Maginness: Clause 43(1)(a) seems to say that there can be corporate hospitality if there is:

"a room to which the general public are not admitted".

532. However, you can still directly view the match from such a room. I would have thought that that would permit corporate hospitality.

533. Mr Grange: That is what we believe. We hope that the legality of writing the clause in a certain way addresses that.

534. Mr A Maginness: We should ask the departmental officials to clarify whether that is the intention of the law.

535. Mr Grange: Our understanding is that, where alcohol is sold, its sale must be closely regulated and controlled.

536. The Chairperson: You said that there was an issue around the Milk Cup.

537. Mr Wade: No, there was not an issue around the Milk Cup. I said that the Milk Cup has corporate hospitality on finals night in Coleraine Showgrounds or Ballymena Showgrounds. That is the same for Premier League clubs. I was only making a comparison.

538. Mr Nelson: Just to be clear: the Milk Cup does not fit into the regulated games environment. Regulated games are Premier League and Championship games. The Milk Cup, as a youth tournament, does not fit into that environment, so it does not fit into this legislation.

539. The Chairperson: Gentlemen, thank you very much for coming and for briefing us. You are welcome to retire to the Public Gallery if you wish. Officials will come back to brief us later, and we will try to put to them some of the issues that you have raised. You can hear how they will deal with them.

540. Mr Nelson: Thank you.

541. The Chairperson: The next briefing is from representatives of the Amalgamation of Official Northern Ireland Supporters' Clubs. I welcome Gary McAllister and Chris Andrews, who are spokespersons for the amalgamation.

542. Mr Gary McAllister (Amalgamation of Official Northern Ireland Supporters' Clubs): Thank you for the opportunity to address the Committee this afternoon. We represent the Amalgamation of Official Northern Ireland Supporters' Clubs, which is made up of 72 supporters' clubs from across Northern Ireland. We also have member clubs from other parts of the world, which are run by expats.

543. Our organisation was established in 1998 when a group of supporters' clubs decided to form an umbrella organisation to work together in the interests of supporters. Our work, particularly our work as part of the Football For All project, has been recognised widely, specifically through the award of the European Football Supporters' Award, which was established by Brussels city council after the Heysel disaster. Brussels city council presented us with the award at Windsor Park in 2006. We are very proud that we pipped the German supporters, whose country hosted the World Cup finals that year, to the award. The Germans were runners-up.

544. Our organisation engaged fully in the consultation on the legislation. We submitted a document to the Northern Ireland Office. We met the Justice Minister, Mr Ford, and his officials on 1 July. We followed that up with a meeting with officials from the Department on 8 July. After the publication of the draft legislation, we submitted our views in writing. We have written to the Committee and to all 108 MLAs.

545. I will speak generally about our overarching view of the legislation and then hand over to my colleague Chris Andrews, who is a committee member of our organisation, and he will speak in more detail about our concerns.

546. Generally, we welcome the proposals from the Department of Justice to introduce specific legislation on spectator controls in Northern Ireland. It is important that the legislation that covers spectating at sports events in Northern Ireland is in line with legislation in the rest of the UK. The proposed legislation could also act as an effective deterrent and encourage people to behave in a responsible fashion, which can only promote a safe and welcoming atmosphere for those attending all sports, particularly football matches.

547. We appreciate that the consultation document, originally produced by the Northern Ireland Office and taken on by the Department of Justice, acknowledged that incidents of crowd trouble at sporting events in Northern Ireland are rare. We emphasise that disorder involving Northern Ireland football fans at football matches is an exceptional occurrence. That was acknowledged by the Minister in writing during the week.

548. Notwithstanding that, we have identified three elements of the Justice Bill on which we want to make the thoughts of football fans known to the Committee. Those three areas relate to the consumption of alcohol in viewing facilities in football grounds; the offences related to the possession of alcohol on private-service vehicles and private-hire transport; and ticket touting.

549. We work with supporters' organisations from England, Scotland, Wales and further afield. We are part of Football Supporters Europe, which is a network of fans from more than 50 countries. From our experience of dealing with other supporters' organisations, we know that there is a shared view that partnership works, that fans have a contribution to make to any process and that valuing fans is a way of moving forward. The legislation does not achieve that, because it potentially criminalises all fans not just those who are badly behaved.

550. Bringing in the legislation would demonise football fans and the sport of football, which would be contrary to the view expressed in one of the earlier submissions that it would encourage greater numbers to attend. If there is a view that football is not a good or friendly sport, it is not likely to encourage more people to attend games. I now hand over to my colleague Chris Andrews, who will speak in more detail on some of the issues.

551. Mr Chris Andrews (Amalgamation of Official Northern Ireland Supporters' Clubs): I will pick up on some of the points that Gary made. As football fans, we believe that any proposed Justice Bill should reflect the needs and realities of Northern Ireland. We believe that the Bill, as it stands, is more or less the application to Northern Ireland of legislation that was enacted to combat the endemic hooliganism and widespread violence that were prevalent in top-flight football in England and Wales during the 80s and 90s. The Bill's provisions reflect the contents of the Football Spectators Act 1989, the Football (Offences) Act 1991 and the Football (Disorder) Act 2000, which were passed at Westminster.

552. I will reinforce what Gary said. We feel that aspects of the Bill are draconian and stereotype football fans. We are concerned about clause 43, "Possession of alcohol", which makes it an offence to be in possession of alcohol at any time during the period of a regulated match. The IFA representatives covered that issue in their presentation, so we will not labour the point. However, we share the IFA's serious concerns that the Bill, as drafted, could prohibit the sale of alcohol in viewing lounges at football clubs in Northern Ireland, not only during matches, but two hours before and one hour after.

553. We reiterate that such facilities are vital income generators for many football teams across Northern Ireland, and, in many cases, the sale of alcohol before, during and after matches is a major element of match day revenue. We believe that the creation of such an offence is unnecessary and that the legislation could have a detrimental effect on the future of viewing lounges and social clubs. We would welcome clarification from the Department of Justice on what is covered and what is meant by that clause.

554. The amalgamation contends that social clubs and viewing lounges at football clubs offer fans the opportunity to socialise in a controlled environment and that they do not have any history of serious disorder or violence that would necessitate the creation of offences such as those that have been outlined. We would like to know the rationale behind the creation of the proposed offence and would like a detailed outline, citing evidence, of why such measures are necessary.

555. I want to pick up on the points that were made by the officials from the Department of Justice. If, as we understand it, the intention of the Bill is to exempt private viewing facilities, the amalgamation wish to ask why viewing lounges should have to be restricted to members only, given that such facilities have no history of serious disorder or violence. We also contend that clause 41, "Being drunk at a regulated match", is more than sufficient to deal with any drunkenness at matches. Why is there a need for further offences relating to drunkenness or consumption of alcohol when we already have provisions relating to drunkenness? We believe that the Bill has the potential to criminalise a person for having a single drink — a person who is not drunk — which is excessive, given that there will be powers to deal with persons should they become drunk.

556. The Chairperson: You have two minutes to wind up.

557. Mr Andrews: We would like to talk about chapter 3, "Alcohol on vehicles travelling to regulated match". It will become an offence for anyone going to a regulated match to have alcohol in their possession. It will also be an offence for people to be drunk in a vehicle going to a regulated match. The Justice Bill will also give the PSNI the authority to stop and search any motor vehicle to which chapter 3 applies, if they have reasonable grounds to believe that an offence has been or is being committed. We believe that provisions already exist that deal adequately with unlawful consumption of alcohol in private-hire transport. Under regulations made in 1990, it is already an offence for anyone to consume alcohol in a vehicle, and the conviction for such an offence already carries a maximum fine of £1,000. We contend that it seems excessive and unnecessary to introduce a specific offence relating to special transport to and from football matches.

558. I will move on to ticket touting. We disagree with the departmental officials' interpretation of clause 45. Under clause 45(1), it is an offence for an unauthorised person to sell or dispose of a ticket. That person is unauthorised unless he or she has written authority from the match organiser to dispose of that ticket. Therefore, the act of selling or moving that ticket on to another person will be an offence. If this aspect of the Bill is about segregation, let us call it segregation, not ticket touting. How does criminalising one supporter for buying and selling tickets for his friends tackle the issue of segregation? Indeed, many grounds in Northern Ireland where football is played do not have provision to segregate fans, and fans freely mix. Segregation occurs only at matches between the bigger teams. It would make more sense to target the matches that are perceived as high-risk and put in place provisions to deal with those rather than to cover all games.

559. In recent correspondence with the amalgamation, the Justice Minister said:

"They may be rare, but I do believe there will be occasions where efforts to segregate fans are essential to address the potential for disorder. I believe that we need to provide for such occasions and that the powers will be an important preventative tool to assist us in doing so."

560. The legislation, as it stands, does not provide for powers that will be used on rare occasions only. It creates an offence that applies to all football matches for which tickets are sold. Under clause 36(1)(c) —

561. The Chairperson: I will have to stop you there.

562. Mr Andrews: I will be two seconds. Under clause 36(1)(c), the offences also apply to all IFA Championship matches, which involve clubs such as Dundela, which do not produce tickets. Dundela versus Banbridge Town will never be an all-ticket match, so it is ludicrous to apply that offence to that game.

563. The Chairperson: Thank you very much. You did very well.

564. Mr McNarry: I concur with the tribute that Alban gave to the IFA, and I am sure that he will agree that that should be shared with the supporters and the supporters' organisation for its efforts. I am a sports fan, and I enjoy nearly all sports. It seems that the decent soccer fan is in danger of being typecast as someone who goes to a match not to cheer on his or her team or to enjoy the game but to be a missile-throwing, chanting pitch invader who will throw fireworks and is likely to be drunk.

565. Sir Reg Empey: Speak for yourself. [Laughter.]

566. Mr McNarry: Such a person is presented as a great multitasker, but that is not the correct image. That is what is wrong with this Bill — it paints that image. I would like that image to be removed. It has to be removed. I understand the ideas around drink and that the Bill seeks to deal with overindulgence in drink. That is where rugby escapes in that rugby supporters enjoy a drink but you rarely see someone legless at a rugby match. Is there a risk that the provisions in the legislation could be rendered meaningless if fans can drink in pubs beside or near the ground two hours before kick-off and one hour after the end of the match? That begs the question: if that can and does happen and is regulated by law anyhow, what is the point?

567. My final question, which is about transport, has not been raised so far, so we might get somewhere on it. You are the best people to answer it. Is the clause on specific provision for football fans travelling to and from matches included because there is a history of serious or major problems in Northern Ireland that have been caused by fans travelling to and from matches?

568. Mr G McAllister: The proposed legislation is using a sledgehammer to crack a nut, and it is legislation for the sake of it. Your point is quite right. Preventing people from drinking on a bus does not mean that they will not come to Belfast, Coleraine, Portadown or Ballymena three hours before a match and get drunk. Is it not better to allow people to enjoy a drink responsibly in a responsible environment in a stadium or a ground, or should we be driving people underground, where they will drink more excessively? We need to educate people on the acceptable amount of alcohol to drink. As someone who has travelled all over Europe and other parts of the world to support Northern Ireland, I sometimes see fans who have drunk more than they should sensibly have drunk. That is not good for them, because it puts their safety and health at risk.

569. I support better education and encouraging younger fans in particular to be aware of their responsibilities. We should not criminalise a young lad who has maybe decided to have more to drink than he should have and has become overly drunk. We need to educate people, not criminalise and demonise them.

570. Mr Andrews: If there are problems linked to football fans travelling to and from matches, and it is believed that the consumption of alcohol during that travel is a problem, we should use the existing provisions, namely, the laws that make it illegal to drink on a bus. We should enforce that. Why is there a need to create the specific offence of possession of alcohol when travelling to and from a regulated match? What does that add to the existing law?

571. Mr McNarry: Do hire laws have anything to do with that? Is it different for private hire?

572. Mr Andrews: That law, as it stands, is for private hire. Other by-laws affect public transport such as trains and Citybus and Ulsterbus vehicles.

573. Mr McNarry: You mentioned trains. We omitted to talk about trains. Across the water, that is the natural means of travel for a lot of spectators. Has anything happened in the recent past to suggest that there is a lot of trouble on buses or trains?

574. Mr Andrews: In my experience, the buses turn up and the guys disembark. They go the ground, watch the game then get on the bus and go home. It is as simple as that. I am not aware of any great issue of people causing trouble on buses.

575. It will now become an offence to be drunk on a bus. Therefore, if someone has a couple of beers in a viewing lounge or a social club, they could risk being accused of being drunk on the return journey.

576. Mr McNarry: The police would have to get on the bus to identify somebody who is drunk.

577. Mr Andrews: As it stands, the Bill gives the police the powers to stop a coach if they have reasonable grounds to suspect that somebody is in possession of alcohol or that somebody is drunk.

578. The provision on the possession of alcohol is problematic. For example, if a bus stops off on a long journey and somebody decides to go to the off-licence to grab a few bottles of wine to drink when they get home, possession of that wine on that bus, whether or not the person is drinking the wine, is an offence because they are travelling from a regulated match. Or, for example, if someone goes to a match in Scotland and purchases two bottles of malt whisky for a Christmas present, that person is still travelling from a regulated match and is committing an offence.

579. The Chairperson: More so if the person is wearing the scarf.

580. Mr A Maginness: Thank you very much for your presentation. Obviously, you are very concerned about the effect of the legislation on your enjoyment of matches. However, it is clear from the IFA's comments that it feels that the legislation could be helpful to remedy certain problems and bring about better behaviour at matches. The sport's governing body said that. However, you are saying something different.

581. Mr Andrews: I do not think that we are poles apart. Let us get things into perspective: incidences of football disorder and football violence in Northern Ireland are, thankfully, still low. Although we heard in previous presentations about various misdemeanours from years ago, some of which were quite major, those are not an everyday occurrence.

582. It is all too easy to suggest that, because England and Wales has had similar legislation for years, football violence and football disorder has been eliminated across the water. That is simply not the case. There have been a number of high-profile incidents this season and last season. For example, in September 2010, 11 people were arrested at a QPR versus Millwall game, and bottles were thrown onto the pitch at a Manchester City versus Blackburn match. There was trouble at the Manchester United versus Manchester City games last year, with a total of 40 arrests across the two games and incidents of coin-throwing and bottle-throwing. At Burnley versus Blackburn, the police had to baton-charge fans, and 40 fans were questioned. On the same weekend that fans invaded the pitch at a Sheffield Wednesday game, Luton fans invaded the pitch and threw missiles at York City fans during a play-off semi final. Legislation already exists there and there are still incidents like that. The incident at the Larne versus Newry cup match, which has been referred to continually during this evidence session, did not involve any fans; it was solely players.

583. Mr A Maginness: That is factually correct, Chairman. I recall the incident.

584. Mr G McAllister: The answer is in better stewarding, supported by legislation. Legislation alone will not address any problems. I have attended Windsor Park for 20 years as a Northern Ireland supporter. In that time, I know of only two incidents in which people behaved in a way that I felt was deserving of being removed from the ground. One was during a high-profile Poland game last year, when someone stuck the linesman with a coin and, at another game, someone threw a bottle, which did not reach the pitch. We have self-policing fans, and other fans brought the person to the attention of the stewards and had them removed from the stadium.

585. Rather than demonising all fans, we have always tried to work with the police and the IFA. We also do work with the Home Office in London, particularly concerning our away games. We are happy to play a role and be fully supportive of encouraging good behaviour and cracking down on people who misbehave. To do that, fans have to be part of the process. It has to be a partnership, with stewarding being supported by police and legislation. The active participation of fans and supporting them is the way forward, not simply legislation.

586. Mr A Maginness: Do you understand the point that I am making about the difference between you and the IFA? You say that there is not such a big difference, but there is a significant difference between what the witnesses from the IFA said and what you are saying.

587. I welcome your support for the proposals to create an offence that will cover offensive chanting, missile throwing and unauthorised pitch incursions.

588. Mr Andrews: We wholeheartedly welcome those proposals.

589. Mr A Maginness: Are they important?

590. Mr Andrews: Absolutely.

591. Sir Reg Empey: Further to Alban's point and to go back to the evidence that we received from representatives of the game: the aim is clearly to create an atmosphere to encourage more people to attend, particularly from a family-friendly point of view. What could be done to achieve that objective? You are core supporters and have been loyal supporters of different clubs and Northern Ireland for many years. It is surely in your interests and those of the clubs to get more people through the turnstiles. How could that be achieved other than by the proposals that are before us?

592. Mr Andrews: As we said, the key is working in partnership. It is evident that the mainland has moved away from criminalisation and creating offences to deal with football disorder. There are partnerships with fans and clubs, and the onus on fan safety is on the clubs. In the top flight in the UK, 43% of games are police-free. We have campaigned for a long time for more rigorous and safer stewarding.

593. Sir Reg Empey: In a previous evidence session, I think that it was Mr Scott who claimed that there has been an increase in supporter participation in games of some 87%.

594. Mr Andrews: Yes. The were two Acts in GB in 1989 and 1991, which coincided with the creation of the Premier League, the Sky television deal, the influx of foreign players, the holding of the Euro 96 tournament in England and the general influence of the media in promoting football as a fashionable sport to go to and participate in.

595. Sir Reg Empey: I presume that facilities —

596. Mr Andrews: Facilities improved as well. There was major investment in the wake of the Hillsborough disaster.

597. Sir Reg Empey: So, you do not link, as Sport Northern Ireland perhaps does, the creation of the legislation to a potential improvement in attendances? You see it as being —

598. Mr Andrews: It is merely one factor that is part of a suite of activities to help to increase attendances.

599. Mr G McAllister: We developed a relationship with the Football Supporters' Federation in England. In years gone by, for example, when England played World Cup games in other countries, you would have seen images of England fans fighting and rioting with the police. I am sure that you would acknowledge, however, that such incidents now occur very much less frequently. I am not aware of any reports of bad behaviour or disorder involving England fans during the last World Cup. Their fans also opted for self-policing, with people going among fans to try to quell any boisterous behaviour. Police intervention has become a last resort.

600. On the UK mainland, there has been a move away from a harsh approach through policing, and fans are now more involved. We feel that we should learn that lesson in Northern Ireland, and, through our partnerships with the IFA and the authorities, we are keen to do that. We have no difficulty with a law to deal with people who are clearly badly behaved and need to be punished, but the emphasis needs to be on balance. Let us not demonise all fans. Rather than tar everyone with the same brush, let us have something in place that allows us to deal those who need to be dealt with.

601. Mr O'Dowd: I am sorry that I missed the start of your presentation. When I came in, you were talking about the current legislation that relates to policing games and how it should be enacted. As you heard me say, I am concerned that we may be adopting legislation for the sake of it, because taking the legislation to its extreme shows soccer fans as very dangerous people who should be avoided at all costs. In fact, you are not even allowed to be in possession of a drinks container.

602. Mr G McAllister: I am surprised that you allowed us in here today.

603. Mr McNarry: We have two likely characters with us.

604. Mr O'Dowd: It is about the enforcing current legislation. At the end of your presentation, you commented on the clause that refers to "Being drunk at a regulated match", which may cover the rest of it. Is alcohol currently allowed in stands during matches?

605. Mr Andrews: No.

606. Mr O'Dowd: Therefore, that clause could cover the rest of the concerns about the Bill.

607. Mr Andrews: That is our belief.

608. Mr O'Dowd: You referred to a piece of legislation on the conveyance of alcohol to and from matches in public-hire coaches.

609. Mr Andrews: An amendment made in 1990 to the public service vehicle regulations states:

"while a public service vehicle is standing, plying or carrying passengers for hire a passenger shall not…consume alcohol."

610. Sir Reg Empey: It does not say "do not possess".

611. Mr O'Dowd: That gets round the issue of people bringing back two bottles of malt whisky. That is grand. Everything else has been covered, thank you.

612. The Chairperson: No other members wish to ask a question. Gentlemen, thank you for your briefing and for taking our questions. You are welcome to retire to the Public Gallery. We will be asking the departmental officials to come back so that we can hear what they have to say about what they have heard.

613. We welcome back departmental officials Gareth Johnston, Tom Haire and David Mercer. Gentlemen, you have heard all the presentations, and quite a number of issues were raised. We have tried as best we could to note them. As we go through them, members will make their own comments. We will go though each issue in the order in which we picked them up, which should enable us to get through them quicker. I do not intend to go through them too quickly, because it is important that we do it properly.

614. Mr Johnston, I shall direct all my remarks to you, and you can distribute them to whichever official you wish. One issue that was raised was whether lasers should be included in clause 40.

615. Mr Johnston: As I understand it, laser pens that are legal do not cause injury. They may be a nuisance, but they do not cause injury. Illegally made or sold pens are the problem, and it is already an offence to possess illegally made pens. Match organisers could ban fans from bringing any sort of laser pen into a match under the terms and conditions of buying a ticket. They could eject fans who do so or they could confiscate pens from fans on the way into a match if that were part of the terms and conditions of admittance. However, we are conscious of using the criminal law only where it is really necessary. So far, individual sports have not flagged that to us as a major problem. Having said that, we are happy to keep it under review. However, it is not something that is directly covered by the Bill at present.

616. The Chairperson: Before we move on, does any member wish to comment on that?

617. Sir Reg Empey: Just briefly. I accept that there is a difference between the types of pens. However, if a player is running with the ball at the goalmouth and someone shines a laser in their eyes, it will have an impact. It may not leave the player with a permanent injury, but it could ignite crowd reaction and tension among spectators.

618. Mr Johnston: The question is whether that should be a criminal offence or whether it should be dealt with by the stewards under the terms and conditions of ticketing. That is the line that we have taken, but we are happy to continue to speak to the various sports about it.

619. The Chairperson: You will have heard it said that much of the legislation is not about safety but about introducing more criminal offences. Is the legislation purely for legislation's sake?

620. Mr Johnston: There has been pressure for some years now to introduce this type of provision in Northern Ireland. I am conscious that we have "Northern Irelandised" it, but England and Wales have had football offences provisions for 19 years now. They have also had alcohol provisions for football since 1985, and we have heard some positive impacts to which that has contributed. However, it has not been the only factor. In 2007, an Assembly motion called for an extension of the Football (Offences) Act to Northern Ireland. We see that as an important corollary of the safety at sports grounds legislation. That legislation has been leading to the removal of barriers, which secure safety. Therefore, the new way of securing safety is through law and through everybody understanding what constitutes acceptable behaviour. There are limits to what the existing law can do in sports grounds, and we have had that illustrated today with the examples of the many instances of missile throwing. That is not be covered by existing law, nor is the offence of chanting, and there are other examples. For example, the law on alcohol in vehicles is about the consumption of alcohol, but we are looking to say that alcohol should not be brought onto vehicles at all. Therefore, there are limits to the existing law, and we are trying to address those.

621. The Chairperson: You heard what has been said here today. Are you prepared to take it on board and to do something about it?

622. Mr Johnston: I am certainly prepared to take on board the points that have been made. There are specific points that we want to take away. One example is that of the GAA's concerns about the designation not just of grounds but of stands and the concerns about how broadly that would go. The issue has only recently come up, but it has been consulted on and published, and colleagues in DCAL are happy to talk to the GAA about it to see whether we can find a way through it. There are certainly points that we will look at and come back to the Committee on.

623. The Chairperson: How will the clauses be good for sport generally? How will you ensure that they will not reduce attendances, particularly given what was said today by those who represent rugby?

624. Mr Johnston: The clauses are about sending a positive message. Concerns were raised today that they are about demonising people, but that is not the intention. Concerns were also raised that the Department is not recognising all that the sports have done, and if I have not expressed that enough, I regret it. The sports have taken tremendous steps to address safety issues, to tackle hate crime through recent campaigns and to enforce messages of acceptable standards of behaviour, which was all really valuable. The legislation is, in part, about sending a positive message that our sports grounds are places where people can be safe, bring their families and be able to have fun and a bit of banter, yet be assured of basic standards of decent behaviour. I see the provisions sitting alongside what the sports are doing to make sport more family friendly and encourage people to come out and support their local clubs, rather than sitting at home and watching them on television.

625. Mr O'Dowd: Have there been any discussions with the different clubs on self-regulation, strengthening their own codes of conduct and working closer together? The Coleraine three, who were given their marching orders for invading the pitch, can still go to watch Coleraine when they are playing Ballymena. Should we not look at self-regulation first, and, if that does not work, move to more extreme measures and bring in the legislation on banning orders and so on?

626. Mr Johnston: The Department has had discussions with all the groups that were represented here today, and it also had the benefit of their responses to the consultation. As we heard from the IFA, the football groups have supported many of the measures. Indeed, they specifically called for some of those measures and they called for a couple of things today that are not in the Bill. Those who represent football and the others sports are concerned about particular things, be they alcohol and rugby or circumstances of pitch incursions during GAA matches, and we can look at those. However, there has been a general welcome from those two sports. Those who represent rugby said that they do not object to applying the provisions on missile throwing and pitch incursion even though they do not have problems in those areas, as that would send out the wrong signals. Likewise, those who represent the GAA raised a number of practical points, but have not attacked the base purposes and assumptions in the provisions. There was consultation and the message that came back was positive overall, even if some tweaks are needed.

627. Mr O'Dowd: In a sense, the sports bodies are in silos and look after the sporting end, whereas, as politicians, we have to look after the broader issue of the use of legislation. Gareth, you said that you do not wish to bring in criminal legislation for the sake of it, but I am concerned that some of the provisions are being introduced for that very reason.

628. My original question was about self-regulation and the codes. There seems to be a pursuit of self-regulation in many of those issues that will lead to people being convicted of criminal offences. For example, I have serious concerns about the introduction of banning orders and the impact that that will have on human rights. If people are involved in violent activity, they should be brought before the courts and prosecuted. There is more openness around self-regulation. The sporting organisations will not openly criticise the Department of Justice and the Department of Culture, Arts and Leisure. That is not their role in life. They will look after the sporting element, but, as politicians, we have to look after the effective use of legislation. If I am going through this legislation line by line, I am not going through another piece of legislation line by line, and I want to ensure that my time and everyone else's is being used wisely.

629. Mr Mee: The sports have codes of conduct, and some of them have had them for some time. We depend a lot on what the sporting bodies tell us and ask us. The IFA introduced a code of conduct nine or 10 years ago. At the same time that it introduced that, it asked for legislation in this area, and it has continued to do so. The Assembly has suggested legislation in that area. Among a number of them, there is a sense that the sporting codes are not always enough because incidents still happen, and they often ask for legislation to support their codes in some instances. They want to apply those in law.

630. The Chairperson: Have the GAA or the rugby authorities been asking for the legislation?

631. Mr Mee: To be fair: they have never asked for it directly. Although I cannot speak for them, from the consultations that we have engaged in with the Department of Justice, we see that the general view of those sports has been that they are happy with most of it, provided there are certain adaptations to suit their circumstances and that certain aspects of it do or do not apply to them.

632. The Chairperson: I asked that because you gave the impression that, to some extent, you were led by them and that you took great cognisance of their views.

633. Mr Mee: Yes.

634. The Chairperson: But, they did not request the legislation.

635. Mr Mee: No.

636. Mr McNarry: It is interesting that it might have taken sport to nudge John O'Dowd and I closer on at least one view.

637. Mr O'Dowd: May I change my mind?

638. Mr McNarry: That is progress, but we will not dine out on it yet.

639. Mr O'Dowd: No, not yet.

640. The Chairperson: One swallow does make a summer.

641. Mr McNarry: I am very interested to hear your comments. Have you any others? [Laughter.]

642. We have had nearly four hours of listening and, I emphasise, learning. It has been good. I am not convinced that I can take a hard-and-fast decision or even anything approaching it tonight. There is a lot to digest and take on board, and I need time to reflect. I congratulate everybody who is still awake, and I thank them for their excellent contributions.

643. Mr Johnston is not convincing me that there is any real movement. I need to find that out, and I do not think that we will find that out tonight. When might we find out from the officials whether the Minister is not only up for considering changes but for advising us on the territory in which he might make changes? If he is not, we might as well know that, and then we, as a Committee and individuals, can get on with how we will tackle the Bill.

644. The Chairperson: I suspect that we will not know for a while. The process that we have started today will go on for some time.

645. Mr McNarry: I was referring this particular section of it.

646. The Chairperson: The Committee does not need to make any decisions on any aspect of that today, and we will not do so. The organisations that took the time out to present their case to the Committee and take our questions are listening to the response from the departmental officials. It is only proper and right that they should be given the opportunity to make a written submission on the aftermath of their evidence.

647. Mr McNarry: I welcome that. At least that is progress.

648. Mr A Maginness: May we make general points now?

649. The Chairperson: I am dealing specifically with this issue. As we go through, members can come in at the appropriate time to raise their concerns about an issue.

650. Mr Givan: I have a point about the need for the legislation. If the Assembly passes the legislation, who is going to enforce it? Who will be placed under an onus to do that job? If stewards at matches have not been doing that until now, what is the evidence to suggest that they will do it once it has been legislated for?

651. Mr Johnston: Ciarán may want to say something about that as well. The hope is that stewarding has come on so much in recent years. The hope is that if stewarding is being done in a way that complies with the safety legislation that has been enacted, there should not be much more that needs to be done to address any of the needs from the legislation.

652. Mr Mee: The new safety legislation requires certain standards in stewarding. As you heard, some of the sports use professional stewards because they are required to have appropriate quotas of properly trained stewards.

653. Further education colleges and so on provide courses for stewards, so there is a new approach on the safety side towards the professionalisation of stewarding. We think that that will help with the enforcement of this. Some of the sports representatives talked about the fact that effective enforcement comes partly from good event management by the organisers and between the police and the clubs. We want the match organisers to rely on the police only when they absolutely need to.

654. Mr Givan: If someone in a stand heard someone else engaging in offensive chanting but a steward did not do anything about that, would the steward have to respond if the person who heard the chanting then said, "That individual just said something that should not have been said."

655. Mr Mee: The steward would have to make a judgement call in that circumstance. However, stewards should certainly be looking out for issues that have the potential to trigger wider crowd problems. If the issue is offensive chanting, the stewards and clubs should certainly be aware of it.

656. Mr Givan: I am concerned about how we are going to police this if it is brought in.

657. The Chairperson: Mr Johnston, will you comment on the clause that deals with the possession of drink containers? How will that work in practice?

658. Mr Johnston: The clause refers to containers that are capable of causing injury. As I understand it, the practice applied in England and Wales and at non-sporting events in, for example, the Odyssey, is that plastic bottles of water or Coke are handed over with no tops on them. So, if someone gets carried away and decides to throw a bottle, the liquid would spill out and the bottle would hopefully not do anyone too much harm should it hit them. Furthermore, all cups will be either plastic or paper.

659. We think that the practices applied elsewhere can be carried on and used at matches here and that they should fit within that definition of drinks containers, which bans only the ones that are capable of causing injury. We are very happy to look at whether we can provide some guidance to clubs to assist with that. There is certainly no problem with a child coming to a ground with a carton of juice or a plastic bottle of Coke with no top on it.

660. Sir Reg Empey: Unless it is frozen.

661. Mr Johnston: I had not thought about that. It may be that there is a little bit of a need for slightly different practices. However, we think that we can cope with that. People will still be able to enjoy soft drinks and everything else at matches.

662. The Chairperson: Mr Johnston, you are losing me here. Are you saying that people are going to be asked to take the tops off any bottles before they go into the ground?

663. Mr Johnston: That is what happens elsewhere and in the likes of the Odyssey. If someone buys a plastic bottle of Coke, it will be handed over to them with no top on it.

664. The Chairperson: What would happen if I came to the ground with a bottle of Coke?

665. Mr Johnston: You would be asked to take the top off.

666. The Chairperson: They will ask me to do that? Right. I will hand over the top, say, "Have a nice day", and go on ahead with my bottle.

667. Mr Johnston: You will hand over the top. Yes.

668. Sir Reg Empey: They will take the top off even if you do not want the drink at that time.

669. Ms Ní Chuilín: People can buy a soft drink in the grounds.

670. Mr Johnston: The top would be taken off.

671. Ms Ní Chuilín: They would take the top off? Would they pour the drink into a plastic cup?

672. Mr Johnston: They would either take the top off or pour the drink into a plastic cup.

673. Mr Givan: If a bottle is unopened and has its top on, would that not ensure that there is no alcohol in it?

674. Mr Johnston: A plastic bottle was sitting over there. It is gone now.

675. Ms Ní Chuilín: It has been removed for your safety.

676. Mr Johnston: A 500 ml plastic bottle that is filled with water weighs 0·5 kg. I believe, from what I learned in physics, that I am correct in saying that. That is a fair weight with which to bump somebody. So, some precautions are needed. Taking the tops off bottles should mean that they are not dangerous.

677. Mr O'Dowd: It does not say that in the legislation. [Laughter.] Clause 42(2)(a) refers to:

"a bottle, can or other portable container (including such an article when crushed or broken) which -

(i) is for holding any drink, and

(ii) is of a kind which, when empty, is normally discarded or returned to, or left to be recovered by, the supplier".

678. Mr Johnston: Clause 42(2) states that:

"This subsection applies to any article capable of causing injury".

That is the key point. Our contention is that a plastic bottle that has no top on it is not capable of causing significant injury.

679. Mr O'Dowd: That is a wee bit like the definition of when someone is drunk, which is not defined by law.

680. Mr Johnston: It is the usual problem. If, in primary legislation, you start to say that you can have this, but you cannot have that, the result is that you will leave something out that causes problems further down the line.

681. The Chairperson: Right. Let us move on.

682. Ulster Rugby requested that it is not included under clause 43. Let us hear your comments on that.

683. Mr Johnston: I welcome the fact that that was our only disagreement with Ulster Rugby. That was acknowledged. We recognise that it is an ongoing issue for the IRFU and for supporters. We will approach them, if we have not done so already, about a further meeting specifically on that point. We are happy to discuss it further.

684. The background to the inclusion of rugby was the safety at sports grounds policy and legislation. That was why rugby was brought under those provisions in Northern Ireland. I am conscious that the legislation will be with us, quite possibly, for 20 years or 30 years. We are providing not only for the safety of current supporters, but for the safety of supporters in the future.

685. We have proposed to take the powers relating to alcohol, but not to commence them without further consultation with the Committee and the sports bodies. That is the case for all three sports. Today, we heard from the football body about its concerns over the periods during which alcohol would be banned: the two hours before and the hour after a game. Again, we are quite happy to talk more to the football body about that.

686. If we are saying that we would not commence powers now in respect of rugby, or if there is no immediate intention to do so, I guess that the Committee would question why we would take the powers at all. We would do so for two reasons. First, is to look to the future. What is the case now may not be the case in 20 years' time. Standards of behaviour now may not necessarily be standards of behaviour in 20 years' time. Across the water, that has been seen in cricket.

687. Secondly, it is to encourage fans and supporters to continue to show good behaviour. If they continue to drink and behave responsibly, there is no need to introduce further legislation. If they do not, however, there is the possibility that more restrictive legislation could be introduced. If the powers were commenced, there is flexibility with the times during which the alcohol ban would apply. The key point is that we need to put legislation in place that looks to the future. That is why we want to take that provision even if there is no immediate intention to apply it to rugby.

688. The Chairperson: In looking 20 years ahead, you are taking a fairly long-term approach. There is always provision to amend legislation.

689. Mr Johnston: Indeed. However, the message that it sends is important. That message is that we are introducing the provisions on alcohol in response to need. There may not be a need for those provisions in rugby at the moment, but, if that need arises, they could, in principle, be introduced very quickly.

690. The Chairperson: Are you agreeing that the legislation could be amended?

691. Mr Johnston: Yes; we could amend the legislation.

692. Sir Reg Empey: What about drugs? We may as well include those.

693. Ms Ní Chuilín: Steady on, Reg.

694. Mr A Maginness: Do the provisions include corporate hospitality?

695. Mr Johnston: We have exempted private viewing facilities. Corporate hospitality in rooms to which the public do not have access will not be covered; that is on the statute book.

696. Mr A Maginness: The point was also made that, in England and Wales, different rules can apply for different sports that are played in the same stadium. The no alcohol rule applies at soccer matches, but spectators are permitted to consume alcohol in view of the pitch at rugby matches. How is that drafted? Could you draft something similar here?

697. Mr Johnston: That is down to the fact that the legislation in England and Wales covers only football; other sports are not covered. I received feedback that that leads to confusion among fans. If they are there on a Saturday, they can drink; if they are there on a Sunday, they cannot, or vice versa.

698. Mr A Maginness: So, it is football specific in England and Wales.

699. Mr Johnston: Yes.

700. Mr A Maginness: Is there no law that covers rugby?

701. Mr Johnston: The ordinary drunkenness laws and so on cover rugby, but there is no specific provision.

702. The Chairperson: The IFA sought clarification on the position regarding alcohol in corporate facilities at football games. I might be taking that issue out of sequence slightly, but perhaps you will comment on it.

703. Mr Johnston: Private viewing facilities are exempted from the legislation. A corporate box, for example, to which the general public do not have access, is not covered by the legislation.

704. The Chairperson: Schedule 3 on page 80, namely regulated matches, makes no reference to Ulster GAA.

705. Mr Johnston: Yes. We worked with the draftsman on that point. However, we are happy to revisit it with the draftsman to ensure that it is completely covered.

706. Mr Mercer: The other organisations, the IFA and the IRFU, are defined in schedule 3 only because it goes on to mention those bodies specifically. The Bill refers to Gaelic games but not the GAA, so there was no need to include a definition of the GAA. That is the explanation, but we will look at that again.

707. The Chairperson: You will revisit that.

708. Mr Johnston: Yes. Following that, I would be happy to write to the GAA and copy that to the Committee if that would be helpful.

709. The Chairperson: Will you comment on the view that Ulster GAA governance bodies should have more autonomy to control the possession of alcohol at matches rather than there being blanket legislation?

710. Mr Johnston: That comes down to the general points that we have made about the part of the legislation that deals with alcohol. We will consult the bodies on exactly how the provisions are commenced and how they will be applied in the period before we come forward with a commencement Order.

711. Sir Reg Empey: I am concerned that we are losing the run of ourselves. A lot of this is well-intentioned, and, clearly, there is a problem that has to be addressed; we understand that. It is like planning. We have lots of planning laws, but they are not enforced. You will need armies of people to enforce a lot of this. That is my worry. It is not entirely clear who those people will be. There will be stewarding, and I think that we are in favour of that. I have always supported that. However, that will, in many instances, translate into a situation in which the PSNI will almost have the role of standing in front of a court and saying, "It was him." I have concerns about the enforcement issues. We need to look at that, because there is no point in introducing legislation, if it is going to be flouted or if it cannot be enforced. I am not entirely clear on that, but it is something that we will have to look at generally as we go through this exercise, and we must not simply confine it to sport.

712. The Chairperson: Yes. I suspect that we could say that about most legislation. It is down to enforcement. Are we getting into a situation in which we will have a maze of legislation that is unenforceable?

713. Sir Reg Empey: That is my worry.

714. Mr Johnston: In many ways, it is no different from any other legislation or from situations that occur every day. For instance, there can be trouble in shopping centres, amusement arcades and nightclubs, and, in those instances, there are many situations in which stewards or security guards are the first line of defence. The GAA representatives raised concerns about instances in which they will need to liaise with and give evidence to police, if there is going to be a prosecution. When we talk about enforcing the sports legislation, I am not sure that we are talking about situations that are completely alien. If you had asked me the same question 10 years to 15 years ago, I might well have had concerns about the sports, how effective the stewarding was and whether they were in a position to provide that first line of defence. The advances that Ciarán outlined give me more confidence that this would be enforced to the extent that it needs to be enforced by the criminal law, bearing in mind that the match organisers and stewards are always the first level.

715. Mr Mee: It is important that we do not see that in isolation. The IFA and a number of others talked about the wider package, which includes issues around safety and the concept of good safety management and good behaviour fitting in with that and creating the kind of safe, welcoming and comfortable environment that this is partly intended to deliver. I stress that the issues should not be looked at in isolation.

716. Sir Reg Empey: I think that that is a fair comment.

717. The Chairperson: We have a fairly lengthy agenda after this, so I am going to speed the meeting up a bit, because we are going to have to be more precise and a wee bit swift.

718. Mr Johnston: I would like to make one point in response to something that Mr McNarry said, though he will not have a chance to hear it. There was a concern about whether we are being responsive enough and whether we are taking on board the things that we are hearing. If I have given any other impression, I will be getting the sharp end of my Minister's tongue when I go back, because his concern was very much that the Committee be assured that we will take the concerns into consideration. The fact that there will no longer be provisions for alcohol in private viewing facilities is a change. We have said that we will look again at the issues around sectarianism and how that is defined. I referred to the GAA designations. The flexibilities about alcohol and the way in which the parts of the Bill that relate to alcohol will be introduced are rather different from the stricter position on which we consulted. We are going to look again at the points that the IFA raised about banning orders in relation to Scottish matches and civil banning orders.

719. I hope that I am giving an impression that there are points that we are continuing to hear and are taking back. We will be bringing amendments. If there are other matters that, having considered the issues that have been heard today, the Committee wants to bring to us, we will be happy to take those specific proposals and come back with specific responses.

720. The Chairperson: The IFA representatives said that the timings for the possession of alcohol are somewhat excessive.

721. Mr Johnston: The proposal is that it be prohibited for two hours before and one hour after a match. We have put in the Bill the opportunity to substitute other periods. That was done in response to concerns that we heard at consultation stage.

722. The Chairperson: You heard it said that clause 49 is sufficient to deal with drunken individuals and that there is no need for any further clauses.

723. Mr Johnston: The problem is that that deals only with people once they are drunk. Part of the aim, I guess, of the legislation is to stop people getting drunk in the first place.

724. The Chairperson: Are you saying that it is also to stop them getting more drunk?

725. Mr Johnston: Indeed.

726. The Chairperson: What need is there for more legislation to deal with alcohol on transport? Why not just use the existing legislation?

727. Mr Johnston: Again, it is about what the existing legislation covers. It bans consumption in vehicles, but only consumption. We are proposing to cover possession and to put some responsibility on the owners of the vehicles, who, after all, are making a profit. We feel that there should be some responsibility on them not to permit drink to be brought on board. It is about addressing gaps in the existing legislation.

728. Mr Haire: It is an issue across the three sports. I am not saying that it applies to them all, but, for example, the GAA has said that alcohol on transport is an issue for it. We are trying to provide a package that will deal with different circumstances.

729. Mr Mee: When we talked to them in the past, some of the sports raised the issue of people buying alcohol on the way to a match and arriving with it at that match. If, perhaps, they cannot gain admission with it, that can lead to problems at the turnstiles.

730. Mr Johnston: It may be that on such occasions, those persons do not go into the match, but go off and drink it and cause trouble when everyone else comes out. We hope that it is not a very big restriction on people's liberty. People can still nip down to the off-licence, buy as much as they want and go home. People who want to buy a couple of bottles of whisky as Christmas presents can still do so at home rather than when they are in Glasgow watching a match.

731. Mr O'Dowd: It is actually an economic policy, then, with the aim of driving up sales in the North rather than anywhere else. It is nothing to do with how much people want to drink; it is to do with legislation for legislation's sake. I cannot see the PSNI setting up a flying squad to zoom up and down the motorways following buses to see whether someone is drinking.

732. Mr Johnston: There has been concern expressed by —

733. Mr O'Dowd: To save having a dispute or an argument, could you present the Committee with papers that show how many arrests and detentions have arisen from drink being taken on public hire buses that are going to and from matches?

734. Mr Johnston: I will certainly speak to the police to see whether we can get some information on that.

735. Mr O'Dowd: As this piece of legislation is deemed urgent, I am sure that you have done research and have received background information.

736. Mr Johnston: I will have a look and see what we can get or produce.

737. The Chairperson: The removal of the reciprocal system of banning orders throughout the UK, which the IFA strongly supports, is disappointing.

738. Mr Johnston: There was a legislative competence concern, as we have seen with other subjects, around whether it was possible for the Assembly to make legislation that has extraterritorial effect. That is a point that we are addressing with the Attorney General's office. If there is the potential to bring that provision back, we certainly will. In legislating for that, it may be that we need to look more broadly than the current Bill. However, we are addressing the issue and our desire is to make that provision.

739. The Chairperson: Mr Johnston, the more that I heard from the organisations that presented their cases today, and the more that I listen to you, it strikes me that this legislation seems to have been lifted directly from England and Wales and has very little to do with the situation in Northern Ireland.

740. Mr Johnston: Of course, the legislation in England and Wales covers only football, and we have taken it more broadly than that. We have heard the pros and cons of that —

741. The Chairperson: Wait. Football matches in England get crowds upwards of 70,000. We are not dealing with those sorts of crowds here.

742. Mr Johnston: But, we are dealing with situations of crowd trouble. We have seen in the past that a small number of people have caused problems. We feel that we need to regulate that.

743. The Chairperson: Yes, but your legislation deals with wide-scale hooliganism that is likely to breakout. Maybe I am totally wrong or am living somewhere else, but I suspect that there is not going to be a massive surge in hooliganism at rugby or IFA matches on Saturdays. I accept that there are incidents, but, by and large, that is not happening.

744. Mr Johnston: A lot of criminal law is not about dealing with things that happen every day of the week but about dealing with excesses of bad behaviour.

745. The Chairperson: Something that will not happen, is that what you are saying?

746. Mr Johnston: No, it is about dealing with excesses of bad behaviour and having the means to do so. It is also about the message that is sent out. When whatever is enacted is enacted, we, the sports bodies and Sport NI will probably need to think further about communications and about what messages we are sending. We need to try to make sure that those messages amplify the positive work that is going on elsewhere, rather than act against it.

747. Mr Mee: Some of the research that we have done on other policies and strategies, particularly our soccer strategy, suggests that a lot of people are not attending games because of the perception that there is a lot of hooligan behaviour out there. That behaviour may not be on the scale that it has been in GB in the past, but it takes only one ugly incident to cause a lot of disproportionate damage; for example, the international game between Northern Ireland and Poland or some of the incidents that Sport NI mentioned. That is the particular concern that was fed to us by the IFA and others.

748. The Chairperson: I hear what you are saying. However, I honestly think that you are trying to put legislation in place for something that we think might happen 20 years or 30 years down the road. I am not sure whether that is the right approach.

749. Mr Johnston: I made those comments in respect of rugby. However, we have heard examples today of relatively recent problems in other sports. Those problems are not caused by the majority of fans, but are problems that we need the right legislation in place to deal with.

750. The Chairperson: We will move on to the issue of ticket touting. Ulster GAA raised the issue of whether the enforcement clauses for ticket touting could actually be applied.

751. Mr Johnston: The phrase in the legislation is "authorised in writing". Ulster GAA's concern was about passing tickets on to friends or buying half a dozen tickets for your friends and then getting the money back from them. The amalgamation made a comment about the requirement in the legislation being for written authorisation, but that can simply be written authorisation on the back of the ticket or in the terms and conditions that are published that apply to ticketing. So, it is not that you need to get an individual letter saying that you are allowed to do that.

752. The Chairperson: An issue was raised that some football matches that fall under the legislation will not be ticketed matches; therefore, the ticket touting clauses cannot apply even though they probably should.

753. Mr Johnston: There is a clause hidden away somewhere that makes clear that it is only for ticketed matches.

754. Mr Haire: It applies only to regulated games, but, obviously, it can apply only to ticketed games.

755. Mr Johnston: Our expectation is that, if a game is not ticketed, it does not have to become ticketed because of the ticket touting legislation.

756. The Chairperson: Thank you for coming here today. We will definitely be talking to you again. If anyone in the Public Gallery who made a presentation to us has any issues that they want to come back to the Committee on in writing, please feel at liberty to do so, and we will give you a fair hearing. I thank all those who have attended here today.

757. Mr Johnston: I thank the Committee for its patience this afternoon. As departmental officials, we have also valued hearing the views of the various bodies. We have spoken to them before, and we have had written consultations from them, but sometimes views develop. Therefore, it was useful to have this afternoon's session.

758. The Chairperson: Thank you very much.

25 November 2010

Members present for all or part of the proceedings:

Lord Morrow (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Lord Browne
Mr Thomas Buchanan
Sir Reg Empey
Mr Paul Givan
Mr Alban Maginness
Mr Conall McDevitt
Mr David McNarry
Mr John O'Dowd

Witnesses:

Mr Tom Haire
Mr Gareth Johnston
Mr Chris Matthews
Ms Janice Smiley

Department of Justice

Ms Geraldine Hanna
Ms Susan Reid

Victim Support Northern Ireland

Mr Stanley Booth
Ms Anne Doherty
Mr Bill Halliday
Ms Laura McKay

MindWise

Mr Paul Leighton
Ms Mandy Morrison
Dame Anne Owers

Prison Review Team

759. The Chairperson (Lord Morrow): Departmental officials will outline the victims and witnesses and live links Parts of the Bill and their intent. Before the Committee are Gareth Johnston, deputy director of the justice strategy division; Tom Haire, the Justice Bill manager; Janice Smiley, head of the criminal policy unit; and Chris Matthews, head of sentencing delivery and the European unit. You are all very welcome.

760. The officials will have 10 minutes to outline the clauses on the offender levy, and there will be five minutes for Committee members to seek clarification on any points. I remind members that questions and the discussion of issues will come later. The point of this briefing is to set out what the legislation says and its intent. I invite the officials to brief the Committee on the offender levy aspect of the Bill. Will it be you, Mr Johnston?

761. Mr Gareth Johnston (Department of Justice): No, I will let someone else to speak this week. Janice Smiley will take this briefing.

762. Ms Janice Smiley (Department of Justice): The Committee received a briefing on 3 June as the consultation had concluded, and I received a broad welcome for the proposals. We are now at the stage when those provisions have been included in the Justice Bill, and this is an opportunity to talk a little bit about some of the issues that have been raised and how the proposals have been developed and shaped.

763. The provision for the offender levy is set out in Part 1, Chapter 1 of the Bill and comprises six clauses. As some of the issues are interrelated, I will take the Committee through them thematically, rather than going through the clauses chronologically.

764. I will give a summary. The levy will be mandatorily imposed, but the amount can be reduced or omitted in limited circumstances. It will apply to adult offenders only — those aged 18 or over — and it will be imposed across a wide range of specified court disposals and non-court based fixed penalties. It will be applied on an escalating rate of between £5 and £50, increasing in line with the severity of the disposal. It will be collected and enforced by the courts in the same manner as a court fine, except when a period of custody has been given, in which case the levy will be deducted from prisoner earnings.

765. Clause 1 sets out the sentences and clause 5 sets out the fixed penalties to which the levy will be applied. As the Committee will see, those include immediate and suspended custody; community sentences; court fines; endorsable fixed penalties for road traffic offences, which are serious but low-level traffic offences that result in a drivers' licence being endorsed with penalty points; conditional offers of fixed penalties for those offences detected by speed cameras; and fixed penalties for low-level disorder type offences, as provided for in Part 6 of the Bill. Clause 5 also makes provision for the attachment of a levy at a future date to fixed penalties that are issued by other Departments for criminal offences. Any attachment to those penalties will follow consultations with the Departments involved and would be subject to affirmative resolution in the Assembly.

766. The only aspect that attracted attention on the scope of the sentences and the proposed penalties was the fact that the levy will be attached to fixed penalty notices for road traffic offences, which some view as victimless crimes. However, our view is that those offences, which include driving at excess speed, using a mobile phone whilst driving and parking at pedestrian crossing, have the potential to lead to more serious accidents and fatalities, and that no crime of that nature is victimless.

767. Views were also expressed about the ability of some offenders to pay the levy in addition to other monthly penalties. We recognise that courts have some discretion to reduce the value of a court fine in recognition of an offender's ability to pay, and clause 1 of the Bill makes similar provision for the offender levy in limited circumstances. We propose that those would be situations in which a compensation order has also been awarded by the court, and the court determines that the offender cannot afford to pay the compensation order and the levy. That will ensure that priority is given to the payment of compensation to the direct victim of the offence. Provision has also been made so that the court can reduce a court fine only in situations in which the offender has insufficient means to pay the court fine and the levy.

768. The levy will be applied at a rate that will increase in line with the severity of the disposal. The rates are set out in clause 6. When more than one court sentence is imposed at the same time, the levy will be applied to the sentence that attracts the highest rate.

769. In considering the levy rate, the Committee will remember that it expressed the view that there could be an insufficient differential between £5 for a traffic offence and our proposal for £30 for a custodial offence. Although our purpose is not to place a value judgement on the degree of harm caused in individual cases, clause 6 now provides for a two-tier rate, which will reflect the greater harm caused to victims by those who commit more serious and violent offences. So, £50 will apply to those who are serving sentences of more than two years, and £25 will apply to those who are serving sentences of two years or less.

770. Clause 2 provides for the levy to be collected by the courts in the same way as a court fine, except when immediate custody has been imposed. That has led to some people raising an issue about the potential for the application of a levy to lead to an increase in people imprisoned for fine default. Our view is that the introduction of the levy will not significantly impact on current fine default levels. Our projection is that 93% of levies imposed in any given year will be on disposals that have an existing monetary element, whether that is a court fine, a compensation award or another non-court based penalty. When an individual defaults on the payment of the relatively small amount of the levy, they will be also defaulting on the other monetary order, which is the trigger for enforcement action. So, in those circumstances, the levy itself will not be the cause of any significant additional burden on enforcement procedures.

771. The potential for defaulting is further minimised by the arrangements that we have made for collection from prisoners when a levy has been imposed when someone is sentenced. I will give more detail on that in a moment.

772. We will be carefully considering the timetable for the introduction of the remaining 5% of eligible disposals, but there are improvements to be made on the planned fine and default reform, which seek to improve early payment rates and provide an alternative to custodial default. We will look to time their introduction in conjunction with those coming forward.

773. As I mentioned, clause 3 provides for the levy to be deducted from a prisoner's earnings. The rates of deductions will be agreed with the prison authorities, but I suspect that it will be in the region of £1 a week. It is proposed that the deductions will be applied at the same rate across all three prison regime levels to help maintain prisoner motivation to progress to enhanced status. That is something that the Prison Service thought was particularly important in ensuring that any deduction would not diminish the ability to operate the prisoner earning scheme effectively. That will still enable prisoners to pay for phone calls and buy non-essential items in prison without requiring financial help from families. It will mean that they can still pass money to their families or save towards their resettlement.

774. We propose that the revenue from the levy is ring-fenced through an administrative arrangement with the Department of Finance and Personnel (DFP) and used for the sole purpose of resourcing the dedicated victims of crime fund. DFP is consulting with Treasury officials on the detail of a very similar administrative arrangement that the Ministry of Justice has agreed with HM Treasury on the victim surcharge in England and Wales. We await confirmation of the arrangements and, in the interim, have assured the Finance Minister that implementation of the levy will not commence until DFP has reached agreement on the way forward.

775. The victims of crime fund, in full operation across all of the planned disposals, will provide up to £500,000 a year. That will be used to meet the needs of victims and witnesses during their engagement with the justice system and to assist local groups in the community that work with victims.

776. The proportion of funding that is being provided to groups that are working with victims in the community will be routed through the policing and community safety partnerships infrastructure within the existing administrative costs. The remainder will be allocated according to strategic priorities that are agreed with the victim and witness task force, which is a multi-agency group that comprises representatives of all of the criminal justice agencies, Victim Support Northern Ireland and the National Society for the Prevention of Cruelty to Children (NSPCC). That will cover the entire spectrum of victim service policy areas, including general victims' issues, hate crime, sexual violence, domestic violence, families affected by homicide and other vulnerable victims' groups.

777. The fund will be managed centrally by the Department of Justice (DOJ) within our existing departmental financial management structure and resources. That will be clearly separated from our other funding stream to provide transparency and accountability in the movement of money in and out of the fund. The Department will report regularly to DFP and the Treasury on the fund and its operation, which will include published data on receipts, expenditure and the range of projects that are supported each year.

778. A number of sources have sought assurance that the levy revenue will not replace existing provision but will provide an additional funding stream. We recognise that there will be obvious pressures on all funding over the next four years, and we cannot rule out that some victims' services may come under pressure in the same way as some other business areas. However, we maintain the principle of using levy revenue exclusively to support victims' needs. The introduction of the levy will require a one-off capital cost of £100,000 for administration, which we will meet by reprioritising our existing baselines.

779. As I mentioned, 93% of our disposals to which the levy will be attached have an existing financial penalty. The levy will piggyback on those arrangements without additional administrative costs.

780. For the victims of crime fund, as I outlined, we will utilise existing financial management structures rather than developing stand-alone arrangements, which would incur significant administrative costs in development and maintenance. Therefore, the costs will not outweigh the value to be derived from the levy revenue of up to £500,000 a year that we expect to receive. That should make a significant impact on services to victims in the justice sector and in the community.

781. The Chairperson: Thank you very much. We have five minutes if any member wishes to seek clarification on any issue. You mentioned five fines. Is that in one court? What would happen if the same person had five fines in five different courts?

782. Ms Smiley: Fines will be taken independently. Therefore, if a fine is imposed in one hearing, and fines are imposed in subsequent hearings, they will each be treated as separate leviable amounts.

783. The Chairperson: Is there any possibility that pressure would be put on an innocent person to plead guilty? I am thinking of the incident from just one week ago.

784. Ms Smiley: Do you mean for fixed penalties rather than court fines?

785. The Chairperson: Yes.

786. Ms Smiley: The fixed penalty is an offer that an individual can choose to contest in court. An individual who feels that an offence has not been committed, or that there were extenuating circumstances for the offence, will have the opportunity to contest that in court. The documentation that comes with the fixed penalty sets out clearly the opportunities for them to consider immediately or within 28 days whether they wish to pay the penalty or to proceed to contest it in court.

787. Mr McDevitt: These clauses have prompted some debate about the concept of victimless crime. You also brought that up. Is that specified anywhere? Is there a consensus or a widely accepted description of what is a victimless crime?

788. Ms Smiley: The road traffic offences that we looked at included those that were endorseable and those that were non-endorseable. Therefore, we looked at offences that attract penalty points, which is the more serious end of the type of road traffic offence that can be dealt with by way of a fixed penalty.

789. Mr McDevitt: Is the concept of the victimless crime written down anywhere? Do you have any source of reference for what is a victimless crime?

790. Ms Smiley: I do not think that there is anything in statute.

791. Mr Johnston: I do not think that it is a concept that we would necessarily want to encourage, because we take the view that all crime has an impact on the community regardless of whether or not you can identify a specific victim.

792. Mr McCartney: Have the departmental officials received the submissions that the Committee received, or will they receive them? Will they respond to some of the questions?

793. The Committee Clerk: Yes.

794. Lord Browne: Can you flesh out the position regarding the deduction from prisoners' earnings, in compliance with rule 26 of the European prison rules?

795. Ms Smiley: Rule 26.10 is that dual work will be provided for prisoners, and there should be adequate remuneration for any work that is undertaken. It is a matter for each member state to set the earnings levels. That is something that the Northern Ireland Prison Service has done across the basic, standard and enhanced regime. Therefore, it provides for a prisoner on a basic regime to earn £6 a week, those on a standard regime earn £11 a week and those on an enhanced regime earn £20 a week. We are proposing a standard deduction across all those levels so that there is no disincentive to the individual to not be motivated to comply with the regime. It will increase earnings potential in regard to the ability to purchase items, without impacting on prisoners' families and enabling them to save money towards their eventual release.

796. The Chairperson: The next chapter and Part relates to clauses on special measures for vulnerable and intimidated witnesses and live links. There will be five minutes at the end to allow members to seek clarification on any points. I invite the officials to deal with that aspect of the Bill.

797. Mr Chris Matthews (Department of Justice): Thank you and good afternoon. I am going to cover special measures and my colleague Tom will cover live links. Clauses 7 to 13 deal with vulnerable and intimidated witnesses. Specifically, they provide for a series of amendments and enhancements to the framework of special measures created by the Criminal Evidence (Northern Ireland) Order 1999. The clauses seek to expand, enhance and improve the support we provide to vulnerable witnesses by building on what is in place.

798. Clause 7 will amend the 1999 Order to ensure that more young witnesses are eligible for special measures. The clause will increase the scope of eligibility for special measures by raising the age of entitlement from those under 17 to those under 18. Those changes will bring the age of eligibility into line with the age at which a person is considered to be a young defendant. They reflect the fact that witnesses aged 17 can experience anxiety during court proceedings and they are in line with the definition of a child contained in the UN Convention on the Rights of the Child.

799. Clause 8 makes provision for the court to take the views of young witnesses into account when applying the primary rule. It also removes a category of young witnesses who are in need of special protection. The primary rule obliges the court to make a special measures direction for all young witnesses to give their evidence by video recording and to give any further evidence by live link. However, the rule is disapplied in circumstances in which special measures would, in the view of the court, be contrary to the interests of justice, or would not maximise the quality of the witness's evidence.

800. Research has indicated that some young witnesses, especially in the upper age ranges, want to have a say in how they give evidence. Therefore, clause 8 will require the court to give effect to the young witness's wishes in the application of the primary rule. The witness can ask for the rule to be disapplied in whole or in part, and, when the rule is not being applied, the evidence must be given in court from behind a screen. Safeguards are built into the provision. The court must be content that the quality of the evidence will not be diminished and, further, the requirement does not apply when the court believes that complying would not be likely to maximise the quality of the evidence. In making its decision, the court must have regard to the age and maturity of the witness; their ability to understand the consequences of their decision; the relationship between the witness and the accused; their social, cultural and ethnic background; and the nature of the proceedings.

801. Clause 8 will also remove a category of young witnesses who require special protection. A young witness in need of special protection is one who is involved in proceedings relating to sexual violence or an offence of violence; for example, assault or false imprisonment. For a witness in that category, the primary rule applies without exception. However, in practice, that may actually cause harm. In some cases, witnesses who are victims of sexual assault can have the assault video recorded by the perpetrator, and then young witnesses may find the process of having their evidence recorded uncomfortable or distressing. The Bill will therefore remove that category of witness and, in so doing, place all young witnesses on the same footing.

802. Clause 9 will create a rebuttable presumption that, when requested, adult complainants in sexual offence cases can give their evidence in chief by video recording. Under that provision, victims of sexual offences will, if they wish, be able to specify when making an application for special measures that they want to give their evidence by video recording. Subject to certain limitations, the judge will be obliged to give effect to that wish. The limitations are that giving evidence in that way should not, in the opinion of the court, be contrary to the interests of justice or not be likely to maximise the quality of evidence being given.

803. Clause 10 will place on a statutory footing the power to allow for the presence of a supporter of a witness giving evidence by live links. Currently, the court may do that by virtue of its existing powers; however, following the review that led to the provisions, we feel that it is now better to place the power in legislation. The court will be able to specify who the supporter is when making a direction. Although the final decision is for the court to make, the witness's wishes must be taken into account.

804. Clause 11 will provide for greater flexibility in giving additional evidence in chief after the admission of a video-recorded statement. Currently, no further evidence in chief can be heard on matters that, in the view of the court, have been dealt with already in recorded testimony. That amendment will provide the court with greater discretion to admit further evidence once video evidence has been admitted. Under that provision, and with the permission of the court, witnesses may be asked further questions to enhance or expand on issues already dealt with or to examine matters that have come to light since the evidence was given. That will give greater flexibility to improve the quality of information available in the court.

805. Clause 12 will create a wholly new provision in the 1999 Order that allows for examination of the accused through an intermediary. Under that clause, and on application by the accused, the court will be able to give a direction that any examination must be conducted through an intermediary when it considers that the accused may require assistance to understand the questions being put to them and that the court may require assistance in understanding the answers given. The purpose of that provision is to provide additional support to the accused to ensure that there is a fair trial.

806. In some cases, the person accused of a crime may not properly be able to understand the proceedings against them. The measure is intended to assist them to participate fully and effectively in the trial. Examination of the accused in this way must take place in the presence of the judge and legal representatives on both sides, and both must be able to communicate with the intermediary. Further, both the jury and any co-accused must be able to see and hear the examination.

807. If the intermediary makes a statement that they know to be false or do not believe to be true, they will be guilty of perjury and liable for up to seven years in prison. Clause 12 will also provide powers for the court to discharge fully or vary a direction when it appears to the court that that is necessary to ensure a fair trial.

808. Clause 13 amends the 1999 Order to extend the scope of protection for young complainants and other child witnesses from cross-examination by the accused. In practice, that will mean that for certain sexual offences, the accused is prohibited from cross-examining in person any complainant or witness who is under the age of 18.

809. Mr Tom Haire (Department of Justice): Thank you, Chris. Briefly, there are six, at times lengthy, clauses on live links that insert additional provisions into live link laws. Despite their length, most of them are simply mapping equivalent and existing provisions on to some additional types of hearings, some of which, to be honest, are quire rare.

810. The purpose of the Criminal Justice (Northern Ireland) Order 2008 was to try to consolidate as much of our live links law as possible into one piece of statute. We subsequently identified a number of gaps. The Bill has two purposes: to further consolidate that package —

811. The Chairperson: You have two minutes, Tom.

812. Mr Haire: At the same time, we want to widen it into a couple of important areas. Clauses 15, 16, 17 and 18 will map in preliminary and sentencing appeals to the County Court as well as some additional types of hearings at the Court of Appeal. Clause 15 will replace the current inherent power of the High Court to deal with preliminary hearings by live links, mostly bail hearings, to put that on to a statutory footing with the regime that comes with the law.

813. We are mapping two additional areas in clause 14, which has a more positive and important change as it allows live links for preliminary or sentencing hearings for patients detained under Part III of the Mental Health (Northern Ireland) Order 1986. Part III patients are basically on remand in hospital or in detention in a hospital by way of that Order. Clause 19 will replace the existing law around the vulnerable accused to include physical disabilities and disorders. At the moment, it simply covers what one might describe as mental disorder. It puts vulnerable accused on the same footing as vulnerable witnesses.

814. That was slightly out of sequence, but those are the powers under the live links section.

815. The Chairperson: Well done. Thank you very much. Members, we will now ask any questions for clarification.

816. Mr McDevitt: Clause 12 refers to the appointment of intermediaries. How will the concept of assistance be defined and who will define it? Who will define whether someone is deemed to need assistance, and what makes someone eligible for assistance?

817. Mr Matthews: It depends whether the person is over the age of 18.

818. Mr McDevitt: Take an adult, first.

819. Mr Matthews: If someone is 18 years of age, they can apply to use an intermediary if they suffer from a mental disorder, as defined in the Mental Health (Northern Ireland) Order 1986, or if they have a significant impairment of intelligence and social functioning and, for that reason, cannot participate in the trial.

820. Mr McDevitt: OK. How would it work for a child?

821. Mr Matthews: The conditions are that the accused's ability to participate effectively is compromised by their level of intellectual ability of social functioning.

822. Mr McDevitt: Would that need to be independently certified? How would the courts be satisfied of that?

823. Mr Matthews: The defence would apply and the court would make a decision on the basis of evidence given to them. The final decision is for the court.

824. Sir Reg Empey: I apologise; I had to go and get some notes. I have a brief question on the concern around the potential increase in the number of people in prison for fine default. Has the Department any figures in mind for what way that will go?

825. Mr Johnston: A lot of effort is certainly being put into reducing those numbers. In particular, a fine collection scheme has been jointly launched by the police and the Court Service. That has led to a 30% reduction in the number of arrest warrants issued for people who have not paid fines by reminding people about fines and emphasising the different ways to pay. We are considering what more can be done in the longer term to address fine default. However, we are hopeful that the fine collection scheme will start to feed through into prisoner numbers. It has not as yet, because it has been in operation for only a short time.

826. Sir Reg Empey: Could you remind us how many of the 4,000-odd prisoners in jail at the moment you reckon are in for fine default?

827. Mr Johnston: At any one time, only 20 to 25 of the prisoner population are fine defaulters. However, the more relevant figure is the number of receptions for fine default. Perhaps my colleague can point you to those numbers.

828. Mr Haire: It is around 1,500.

829. Sir Reg Empey: I cannot hear what you are saying.

830. Mr Haire: Sorry, it is around 1,500 or 1,600 a year.

831. Mr Johnston: I will try to come back to the Committee later this afternoon with a more precise number.

832. The Chairperson: I think that the member is a wee bit stunned by that figure.

833. As no one else has intimated that they want to speak, we will stop there. Thank you very much. Perhaps you will remain in the Public Gallery, because issues may arise on which we will want to hear your views.

834. The next session is with representatives of Victim Support Northern Ireland. A briefing paper has been provided to members. I welcome to the meeting Susan Reid, chief executive of Victim Support NI, and Geraldine Hanna, operations manager. Ladies, I invite you to outline the issues that you wish to raise on the clauses on victims. You have 10 minutes in which to do so, and there will then be 20 minutes for a question-and-answer session.

835. Mr O'Dowd: Sorry, I would like some clarification. Perhaps I picked this up wrong, but I thought that we would have an opportunity to question the officials for 20 minutes at the end of the session.

836. The Chairperson: They are coming back to the table at the end of the meeting after we have heard all the presentations. You will get your chance.

837. Mr O'Dowd: I knew that you were a fair man.

838. Mr McNarry: Do you think that Hansard will leave that bit out? [Laughter.]

839. Ms Susan Reid (Victim Support Northern Ireland): Thank you very much for the opportunity to address some of the issues and points that Victim Support NI wants to make on the Bill.

840. We welcome the first Justice Bill in Northern Ireland as a historic occasion and look forward to future legislation. However, on that point, we want to raise the fact that, in our 30-odd years as a local charity, we have observed good practice without legislation, but, equally, we have observed legislation that is not being put into practice. Although some of my comments may stray into issues of practice, I very much join the two issues when it comes to the interests of victims and witnesses.

841. The most common complaint raised by victims of crime is about how they are treated by the system and the difficulty that they have in getting information about their circumstances as cases proceed.

842. I want to say a few words to give some context. If we accept the findings of the annual crime survey, we can take it that 48% of crime is reported. Therefore, the number of crimes a year could more properly be reflected as some 227,000 rather than the 109,000 that are reported. A further point in that theme is that, if we take the sum of all the organisations in the system, we can see that no one agency counts the number of victims and witnesses. Therefore, it is an absolute impossibility to properly and scientifically track the end-to-end experience of people in the system. One organisation counts crimes, while another counts cases. Not only is it not possible to ascertain the number of citizens who are directly affected by crime, but it is impossible to analyse the figures and ascertain how many have learning disabilities, physical disabilities or other difficulties that should be taken into account in the justice process.

843. As I said, we are the only independent local charity that deals with all crime categories across the board, from burglary and theft to manslaughter, domestic violence, sexual assault and rape. I will give you an indication of the scale of our operation; in 2009, we dealt with and supported some 10,000 victims and witnesses, and a further 25,000 people were supported through telephone and written contact. We spend £2 million. Given the scale of spending in the criminal justice system, that is, as I am sure you will agree, the crumbs off the table. I hope that you appreciate that, with 200 volunteers and 60 staff, we represent good value for money in the system.

844. This afternoon, we want to touch on three key themes that we picked up on in the Bill; the offender levy, special measures and alternatives to prosecution. On the offender levy, we are hopeful that the proposal will create significant funds that are not consumed by the cost of acquiring the same. As has already been mentioned, we urge that the funds be ring-fenced for services that directly benefit victims and witnesses. We would clarify that slightly and urge that initiatives be considered that protect the victim from further harm caused by the criminal justice system and that meet the needs that the system cannot provide for. We also urge that consideration be given to investment in gathering evidence on the actual experience of victims and witnesses in a way that cannot be dismissed by the different professional groupings that work in the system. In particular, we urge that there be support for all witnesses — all child witnesses, all prosecution witnesses, all defence witnesses and all those who have to take part in the process in the Coroner's Court.

845. We absolutely welcome the expansion of special measures and the introduction of the intermediary scheme. However, we note that it is an issue of automatic eligibility for, not of automatic right to, special measures. We would simply but pointedly underline the fact that the interests of justice are surely best served by the provision of best evidence. Therefore, consideration should lie on the side of ensuring that people are enabled to give their best evidence and are not paralysed with nerves and anxiety due to other issues.

846. We want to highlight another of our concerns about special measures. As I said earlier, provision in legislation is one thing, but access to that provision is another. We are concerned about the identification and offering of those benefits. I will quote briefly from a case study. A 33-year-old victim of domestic abuse was dissuaded from using special measures — by a legal professional, I should add — with the comment, "Sure it is not that bad for you: imagine if it had been a stranger who did that to you." By the way, the victim had been called to court several times previously. Two years later, her estranged husband pleaded guilty. She then received a legal bill for some £5,000.

847. I must also say that we were somewhat disappointed to note the withdrawal of the clause on special measures provision for those who have suffered through the threat of knife crime or the use of firearms and offensive weapons. We are somewhat puzzled by that because of the correlation between people having had a direct threat made to their life or, at least, to their well-being and what we would have thought was an obvious link to their anxiety at potentially facing their offender in the courtroom.

848. We also have concerns and issues with the stage in the process at which special measures are considered. I link that point to the point about lack of information on victims and witnesses and the difficulty that the system, therefore, seems to have in identifying which people would benefit from special measures. Our observation is that, even at the court stage, there are issues with access to special measures. We would take you a step back in the process to decision-making at the Public Prosecution Service (PPS) and question whether due consideration is given at that stage and, indeed, whether that might, unfortunately, influence whether or not some cases proceed.

849. As regards alternatives to prosecution, our overall banner heading is: please do not over-promise to victims. Do not tell a person harmed by crime that they have a choice about whether or not the case proceeds to the PPS when that is patently not a real choice for them. Instead, it must be ensured that there is follow-through on what is being promised to ensure that it happens. The feedback that we have received from some victims is that, having taken part in the process in the small village that is Northern Ireland, they are all too aware that promises were not fulfilled and that action was not seen through. However, on a positive note, we hope that a successful delivery of alternatives to prosecution might do something to address delay in the system by reducing the number of cases going through it.

850. My final point, which has been raised by the Victims' Commissioner in England and Wales, is that, under common law, the victim stands to one side to allow the state to act on their behalf. I do not think that any of us of want a system where it is up to the victim to take, literally or metaphorically, the law into their own hands. The victim's standing to one side has implications and causes confusion about the victim's role, which I am sure members hear about in their consistency offices day in and day out. It is somewhat disingenuous, therefore, to keep repeating the phrase that victims are at the heart of the system. I am not sure that they can ever be at the heart of the system of common law. The state has a duty of care to the victim to ensure that there is due process of law, to address issues around the treatment of the offender and the prevention of further harm, to ameliorate the harm done to a person — that is possibly outwith the criminal justice system — and to ensure that the criminal justice system itself does not do further harm.

851. Mr McDevitt: Do you believe that there is such a thing as a victimless crime?

852. Ms Reid: I am not sure that I do. I was thinking about that earlier when you raised the point. The shortest answer that I can give is that, even if it only raises the fear of crime, it has an impact on people's lives. So, no, I do not think that there is such a thing. However, I see why it is used as an easy definition.

853. The Chairperson: Your paper states that:

"We consider that procedures to ensure that the needs of the victims and witness concerned are paramount need to be introduced."

854. Will you elaborate on that?

855. Ms Reid: Will you point out exactly where that is in the paper?

856. The Chairperson: It is the last sentence of the paragraph about special measures in the paper that you submitted.

857. Ms Reid: Chair, I beg your pardon for not picking up on that question the first time.

858. We are trying to communicate that the witness must be given an opportunity to give their best evidence. We are also trying to allude to the need for a broader principle to be applied in the implementation of special measures, as they are defined. Some people will be genuinely paralysed with terror, because the court process is very formal and intimidating, which, indeed, it should be, as it is such a serious process. We are, therefore, arguing for the establishment of a principle that should be adhered to in the decision-making process about access to special measures in order to give a person the opportunity to give the best account of their experience and of what has happened to them. In particular, as Mr McDevitt alluded to earlier, there are issues about detecting and picking up on cognitive difficulties, speech difficulties and so on and about ensuring that the individuals concerned are truly informed, that they understand the process they are entering into and engaging with and that they are able to give a proper account of their experience.

859. The Chairperson: I wish to take you through one of your remarks. You said that it is a terrifying experience — those may not have been your exact words, but that is how it came across — and you said that it should be. Why should it be?

860. Ms Reid: I probably need to qualify that. I do not mean to suggest that the process should be terrifying. Rather, I am suggesting that it should be a solemn and very serious process. Ultimately, it has the potential to take somebody's liberty away, and that cannot be dismissed or taken lightly. Therefore, a balance must be struck between the need to ensure the rights of the accused and to ensure that there is due process and the need to ensure that the person who has been harmed by crime has an opportunity to give their best account and evidence and is not further traumatised by the process of being cross-examined in a hostile way.

861. The Chairperson: Are you satisfied that those rights have been addressed in the legislation?

862. Ms Reid: The point that I was trying to make was that the legislation creates a facility. The key is how that facility will be delivered: it is about whether people will be identified at the appropriate stage, whether appropriate information will be given to victims to enable them to do that and, indeed, whether they will be dissuaded from taking up the opportunity to use special measures. Those are all key factors that we observe in our day-to-day support of witnesses through the system.

863. Mr O'Dowd: Thank you for your evidence. I want to touch on the issue of whether we need new legislation. Research given to the Committee refers to a British Home Office report of 2006 that looked at legislation in England and Wales. It identified a number of problems, not in the legislation but in how it is delivered. It mentions vulnerable and intimidated witnesses (VIWs) and states that:

"Early identification by the police and the CPS is vital but the police continued to have difficulty in identifying VIWs…The police are usually the first agency to provide VIWs with information about the measures available to them and ascertaining their views. They often did not flag up the vulnerability of witnesses to other agencies".

864. The paper lists a number of areas in which agencies are not working together. Indeed, the CPS sometimes waits until the day of the court appearance to apply for vulnerable witness status, which includes the use of video links and so on. So, is it a case of using the current legislation properly, or do we need additional legislation?

865. Ms Reid: Thank you for summarising the point that I was trying to make. Do we need more legislation? My honest and frank answer is that I am not sure. From my experience of working in direct support of victims and witnesses, I suspect that it is an issue of culture, practice and awareness. I would underline awareness as being the key point. I do not believe that there is any malice in many instances. It is more about ignorance in the sense of unawareness, not picking things up or confusion about what the process should be.

866. Mr O'Dowd: To pick up on a point that you talked to the Chairperson about, it is about getting the balance right. We are about delivering justice. Some vulnerable victims of crime have suffered as a result of horrific offences. However, as you say, the state takes on the responsibility to prosecute, and the state can abuse the law for one reason or another, sometimes not out of malice but through pure bad practice. As a member of the Justice Committee, I want to be sure in my own mind that the balance in the legislation is right and that the rights of the victim are protected and also the rights of the accused, who is not a perpetrator until found guilty and who may be innocent. Have you any concerns about the balance in the legislation?

867. Ms Reid: I do not have concerns about the balance in the legislation. I see very few rights per se for victims of crime. I would again underline the point that the proposals, as they stand, with the intention of giving somebody the opportunity to give better evidence, should surely improve the process of justice as well. I cannot see how that should in any way make it a more risky process for the accused or produce any risk for the alleged offender.

868. Mr McCartney: In your presentation, you made the point that the levy should not be used to cover current provision but rather should be seen as an additional source of funding. How do we protect ourselves from it being used as revenue rather than an additional source of funding?

869. Ms Reid: It is a very difficult point. I have a responsibility to try to maintain the service that we have been providing to people who have been harmed by crime. We do not know what our funding position will be, so, in the future, I could well be making the argument for putting some of that offender levy towards maintaining services. For example, we currently assist in 50% of all the criminal injury scheme applications in Northern Ireland, and there is no legal bill to the victim for the service that we provide. So, in future, I could be making a case for that.

870. As regards how we can make it happen, it is about further definition of the criteria and of the objective of those funds, and that was why I stressed two themes in my presentation. The first is the issue of supporting victims and, if possible, ameliorating any potential secondary victimisation, as we would see it, that has occurred because somebody has engaged with the criminal justice system. The second is that the needs of people who have suffered physical or psychological injuries through crime will not be met by the criminal justice system but by other services, of which we are one. We see the need for counselling and other services that we could direct people to through our contact with them.

871. Mr Buchanan: Thank you for your presentation. As someone who works with victims every day, what do you see as being the biggest obstacles that you face? Do you think that the proposals in the Bill are robust enough to ensure that the rights of victims and witnesses are fully protected?

872. Ms Reid: There is a model of psychology called the "just world theory", and the theory is that we all like to believe that good things happen to good people and bad things happen to bad people. The spin-out is that, when a random, bad thing happens to you, not only do other people move very quickly to try to blame you in the belief that you must have done something silly or stupid to bring this on yourself, but you blame yourself. That leads to a number of major issues for us. Our main problem is with getting the information to allow us to reach out to people and offer help to them. We respect and recognise the need for data protection, but that is a fundamental problem for us in offering the service. If we were to let the service become totally based on self-referrals, we would be letting self-blame and shame get between us and the person whom we might want to help.

873. As regards other barriers, that leads to a pattern where, to be blunt, the system does not really pay a lot of attention to the needs of victims and witnesses, and that is probably a function of common law, which I have alluded to. Because, in essence, victims stand to one side, they become evidence in the process, to put it rather bluntly and frankly. We find that a lot of the needs that we identify for victims and witnesses, such as those involving health and social care and other support, are potentially outside the criminal justice system. Within the criminal justice system, it is, as Mr O'Dowd mentioned, about getting the balance right in a system that is ostensibly focused on the rights of the accused or alleged offender. The system tends to focus on avoiding reoffending, which is right and good, and making sure that the rights of the offender are dealt with, which is right and good, but, in all of that, the tendency is to take attention away from what the person who has been harmed by crime needs.

874. We hear, day in and day out, about how victims were treated. It is a theme of culture and attitude. We hear about how they were not spoken to, how they were spoken to rudely and abruptly and how they were patently ignored. We hear about how nobody engaged with them, how nobody told them what was happening and how, when they tried to find out what was happening, nobody wanted to know. Those are the commons themes that come up day in and day out.

875. The Bill is a step in the right direction — that is the fair and honest answer that I can give. I do not think that it will solve all the issues. In fact, it probably takes a small step towards amending some of them. There has been a lot of progress over the past five or so years, and that must be acknowledged. However, I was trying to make a point about gathering evidence. If I were to present to you today a collated scientific presentation of the daily experience of victims, I think that you would be quite shocked.

876. The Chairperson: Right, we will stop there. Thank you very much for the presentation and for taking questions. You are welcome to stay in the Public Gallery, as the officials will be coming back to the table to deal with some of the issues raised.

877. We are moving on to the next witness session with MindWise. The witnesses will outline key issues regarding the clauses on victims, witnesses and live links. I welcome Bill Halliday, the chief executive, Anne Doherty, the deputy chief executive, Stanley Booth, the appropriate adult scheme manager, and Laura McKay, the appropriate adult scheme deputy manager. You are all very welcome. You have 10 minutes to give a briefing, after which there will be a 20-minute question-and-answer session.

878. Mr Bill Halliday (MindWise): I thank the Committee for the opportunity to appear before it this afternoon to give some oral evidence to back up the written evidence that we have submitted. We have nine key points that we want to make to the Committee. Mr Stanley Booth will make those points in a moment. I will set them in a wider context.

879. As one of the leading mental health charities in Northern Ireland, we deal, in particular, with severe mental illness on a daily basis and with very vulnerable individuals. That is one of the frameworks within which we are presenting our evidence today. In addition, we manage the first and only appropriate adult scheme in Northern Ireland, and many of the points in our submission relate directly to the experience that we have gained while managing the scheme.

880. Mr Stanley Booth (MindWise): Thank you. The team that I lead — Laura is the deputy manager — has completed somewhere in the region of 2,000 sit-in police interviews. We have sat in custody suites with detectives and police officers of all ranks while they interview people for between one and 96 hours. What I say to you is built on the experience that we have gained over the past 18 months.

881. When we submitted our paper, we made a number of points that were simply neutral observations. I do not propose to labour those points, because there is a shortage of time, but I will focus on the matters that are of particular interest to those of us in the mental health field.

882. The evidence of the accused through an intermediary is of particular interest to our organisation, because, when a young person aged 18 is in court and has a particular intellectual ability or social functioning difficulty, his or her ability to give evidence is compromised. We are particularly concerned about those people who have a mental disorder, as defined in the Mental Health (Northern Ireland) Order 1986.

883. The Department of Justice has, so far, correctly identified a difficulty with the PSNI interviewing people of that vulnerability, and hence the Police and Criminal Evidence (Northern Ireland) Order 1989 contains a requirement for an appropriate adult to be present during interviews. That is a scheme that we manage and, as I have outlined, we have done so quite successfully for the past 18 months.

884. We respectfully suggest that, if a young person with a mental health difficulty is required at court, a trained mental health advocate — not to be confused with an advocate in a court context — should attend and support him or her to give evidence or assist in giving evidence as the intermediary.

885. I respectfully suggest that the person who is required to support that young person should be similar to the appropriate adult in the provision that we have at present, because, if he or she is considered to require an appropriate adult in the custody suite, the natural progression is that we would also be best placed to provide that support in court. In the first year, we sat with 640 young people. The vast number of them said, as we were leaving the police station, "I will see you in court. Thank you very much". We had to respectfully reply that there was no provision for us to assist them in court.

886. That theme carries through to Part 2 of the Bill, which includes a clause on live link direction for vulnerable accused.

887. The natural progression of what I just said is that, if someone who suffers from a mental disorder is required to give evidence in person and they require support while doing so, that same support would naturally be required if they have to give their evidence by live video link. We respectfully suggest that the advocacy role should be someone from the trained mental health field. I respectfully suggest that none comes higher than the MindWise organisation.

888. The live link may occur in a secure location or pre-release establishment, such as a hospital venue, for example, the Shannon Clinic, as a stepping stone for release from prison. MindWise staff are currently working in advocacy in the Shannon Clinic. Naturally, we suggest that it would be a natural progression for the trained advocate at that location to provide the live link support. We recommend that a trained mental health advocate — we do not confuse the term "advocate" with "counsel" — should be the intermediary available for courts and live TV links. The Shannon clinic should feature.

889. The fact that the appropriate adult is provided during the investigative stage and is a mandatory requirement in accordance with the Police and Criminal Evidence (Amendment) (Northern Ireland) Order 2007 (PACE) is good evidence that the services of an advocate are also required at a later stage. It seems bizarre that someone in a police custody suite who has a mental deficiency to such point that they need a party to assist them is then abandoned by that party when they find themselves facing a courtroom. Those are key points for us.

890. Part 3 concerns policing and community safety partnerships and district policing and community safety partnerships. We respectfully suggest that, as we provide the service in the custody suites and are familiar with what happens in interview rooms across the country, we should be a default organisation to be on those committees.

891. The Chairperson: You have two minutes in which to wind up, Mr Booth.

892. Mr Booth: We should also attend those meetings so that we can feed back our findings to the police.

893. I have an important point about the alternatives to prosecution part of the Bill. We are not sure whether the term "over 18" means 19 years of age. If it means over 18, including 19, it may create three systems for people who are under 17, those who are 18 and those who are 19. Those are difficult enough to comprehend, especially for young people who are mentally vulnerable and have a difficulty in knowing what justice faces them. We welcome the initiative. We point out, as we said in our paper, that a significant number of mentally disordered offenders end up in prison. A number of leading research papers show that 30% of people in prison have a mental difficulty. As a mental health charity, we are competent in the self-management process and managing people with their mental health difficulties. We want to see the MindWise recovery plan being incorporated into working with people who have a particular difficulty. Whether that be in conjunction with the Probation Board or the Youth Justice Agency matters not to us. We simply know that people need support when they face the judicial system.

894. The conditional cautions will follow the theme that I mentioned. If people are mentally vulnerable and need support in a police station or in court and are subject to a caution, an advocate, naturally, would need to be present. After all, a breach of that caution will lead to a power of arrest. If there is a power of arrest, the person who is mentally vulnerable needs to understand the conditions that are imposed on them and they need support to do so.

895. The Chairperson: I will have to stop you there, Mr Booth. Thank you very much for your presentation.

896. Mr McDevitt: You talked about the concept of an advocate. Do you mean that an advocate would be the intermediary for the purposes of the Bill?

897. Mr Booth: I do.

898. Mr McDevitt: Do you believe that the Bill, as drafted, provides an adequate level of detail about the characteristics an intermediary needs to successfully meet the needs that you identified?

899. Mr Booth: I respectfully suggest that it does not. If the legislation were to say that the role of intermediary should, by default, fall to a trained mental health worker or care worker if the defendant has a mental illness or difficulty, it would provide some support. At the moment, the Bill seems to be mute on that issue.

900. Mr McDevitt: MindWise is involved in delivering the appropriate adult scheme. Is it the sole deliverer of that scheme?

901. Mr Booth: Yes.

902. Mr McDevitt: What existed before it was put in place?

903. Mr Booth: It fell by default to social services. Social workers attended, which placed a further burden on their workloads.

904. Mr McDevitt: Did you say that you have had experience of the area for the past three years?

905. Mr Booth: No; 18 months.

906. Mr McDevitt: My apologies. Are large numbers of people coming through the criminal justice system who are in need of support as the result of a vulnerable mental health status?

907. Mr Booth: In the first 12 months, just under 1,500 people required our service, 60% of them were vulnerable by virtue of their age and the other 40% were vulnerable by virtue of a recognised and accepted mental illness.

908. The Chairperson: In your written submission, you referred to Part 8 of the Bill, part of which relates to criminal conviction certificates to be given to an employer. In your submission you state that:

"The employment of ex offenders and the safety of vulnerable groups is a balance that must be achieved to ensure employers have safeguards and ex offenders have a chance to de-criminalise their lifestyle with gainful employment."

909. You did not specifically say this, but it seems that you not in agreement with the process, because it comes as close to it as it makes no difference. Is that the case, or have I picked it up wrong?

910. Mr Booth: There should not be an automatic exclusionary device. We accept that there will always be a requirement for protective measures when people have substantial unsupervised access to children. However, it may be possible for the employer to make suitable adjustments and informed choices if they knew more about an individual's particular circumstances. That is a very difficult matter. It is beyond our capabilities and it is something that needs to be considered at length.

911. The Chairperson: So, what side of the fence are you on?

912. Mr Booth: At the moment, there needs to be a broadening of the ability of the employer to make decisions. The provision seems to be too restrictive.

913. The Chairperson: Right. In your submission you went on to say that:

"Employers need a process which is less complicated and less costly".

914. Mr Booth: An AccessNI certificate is quite bland and it simply states whether or not a person has a conviction, and an employer must make a decision on the basis of one sentence. If, for example, the résumé that is given to the court on the cover of a public prosecution file, or the report that the probation officer drafts, had one paragraph of details about the person, it would allow the employer to see that the person had been convicted, but that the circumstances were A, B, C or D. Based on those circumstances, they could make appropriate adjustments so that the problem would not occur in their organisation. The information that is currently provided is limited.

915. The Chairperson: Aye, but in your submission you go on to say that:

"We understand and agree that 'substantial and unsupervised' access to children and/or vulnerable adults will always require protective measures from those with specific convictions."

916. Mr Booth: Yes.

917. The Chairperson: I say this with respect: you seem to be jumping from one position to another, but, at the end of the day, not taking either position.

918. Mr Booth: I respectfully suggest that there are certain convictions that will always preclude someone working with children. However, when we did the annual report and looked at our appropriate adult scheme, we discovered that there are over 200 types of offences and, indeed, many types of offences that we had not heard of until we commenced that scheme. Therefore, because such a vast array of offences exists, to say that an employer must do A, B or C for certain types of offences would limit an employer's ability. I am simply saying that, if employers had more information, they may be able to make adjustments depending on the type of offence. However, that does not preclude certain people and certain offences being dealt with in a mandatory matter. Hopefully, that is a little clearer.

919. The Chairperson: But, you say finally:

"We recommend that employers be permitted to consider if suitable adjustment can be made".

920. What do you mean by suitable adjustment?

921. Mr Booth: Suitable adjustment would be possible if an employer knew the type of offence —

922. The Chairperson: Are you talking about employers' discretion?

923. Mr Booth: I suggest so.

924. The Chairperson: So, in some instances, employers should be allowed to act outside the provisions that are already there. Is that what you are saying?

925. Mr Booth: If an employer had a greater scope of information, they may, within their particular place of employment, be able to make some suitable adjustment to allow that person to gain employment. Respectfully, that is the only point that we are making.

926. The Chairperson: That, potentially, leaves somebody else vulnerable.

927. Mr Booth: Not if appropriate measures are taken by employers.

928. Mr McNarry: You are very welcome. I am conscious of the work that you do and that of Victim Support. I am very supportive of what goes on there.

929. Paint the picture of at what stage a vulnerable person in custody is formally identified as having a mental health problem.

930. Mr Booth: At this moment, a subjective test is carried out by the custody sergeant. That test is based on objective questions that are placed on the Niche police computer system, which helps steer him or her towards a certain decision. I am aware that some work may be going on around a new screening process to enhance that test and enhance the training for the police and custody sergeants. We have seen in our annual report a practical improvement in police standards of identifying vulnerable people within one year following a police care plan package.

931. Ms Laura McKay (MindWise): As an appropriate adult, I am very experienced in this. When someone comes in to a custody suite initially, the police go through a care plan with that individual to identify the different levels of difficulty. The custody sergeant then makes the decision, if necessary, to call an appropriate adult, and tasks the forensic medical officer who will then make an assessment on the person's vulnerability.

932. Mr McNarry: In your view, is the current training that custody sergeants receive adequate?

933. Ms L McKay: They are very aware —

934. Mr McNarry: It is either adequate or it is not. They may be aware, but is the training adequate.

935. Ms L McKay: They certainly ask the most adequate of questions through a quite detailed set of specific questions. My experience is that the person is usually very willing to give that information.

936. Mr McNarry: I understand that. We need to be clear that, at the point of contact when someone arrives in custody, their rights are covered in every way, and that the training that custody sergeants receive is adequate and meets what the law demands of them. We are hearing more about how very good lawyers, shall we say, can allude to something that happened at that point of contact to their client that would seem to turn a trial or a potential offender around. I want to make sure that, from your organisation's point of view, what goes on at that point of contact is at least adequate. I hope that that is what you are telling me. If there is a different assessment, we would like to hear it.

937. You talked about the process moving on a step when that person, having been assessed as vulnerable, particularly because of a mental health circumstance, could be assisted by a trained advocate. We have do not have time to go into that, so perhaps you could expand on that in writing to us. I believe that there may be a long list of people who fit the description of a trained advocate, and we may end up having all sorts of queries and problems about that.

938. I want to be sure that the proposal to have trained advocates is not being made on the basis that there might be something wrong at the point of entry into custody and that what happens with the custody sergeant is adequate. I think you said that custody sergeants were receiving improved training, so that is being recognised. That would be useful in the case of trained advocates. If something seems to me to be working, I would not be enamoured with the idea of a trained advocate not necessarily coming in to be of benefit to the person in custody who is suffering from a mental illness, but to be there solely, in some instances, to make life awkward for the custody sergeant. That is why I want you to give me an idea of what you are talking about when you propose having trained advocates.

939. Mr Booth: It may help to know that our team is held in the highest regard by the police. We commend the police for being particularly professional in the custody field. We find that they are meticulous in their dealings with us. The police find our services so rewarding because, from their perspective, the evidence that they gather from the moment of arrival at the custody suite until charging, when the case goes to court, is almost certainly fully admissible. Throughout the process, an independent person will have been following the detainee from the moment of arrival at the custody suite until the moment when the detainee is charged. That secures the admissibility of police evidence. From that point of view, there is no doubt that we do not make the custody sergeant's life difficult.

940. Mr Halliday: In answer to the points that Mr McNarry made, it might be useful if we were to provide supplementary information about written evidence. That might help to clear up some of the issues that have been raised.

941. The Chairperson: We will leave that matter there. We have less than two minutes left, but three members have intimated that they want to say something.

942. Sir Reg Empey: I will be very brief, Chairperson. Who triggers your involvement when someone is taken into custody? Is it the sergeant?

943. Mr Booth: Yes.

944. Sir Reg Empey: OK. Does that person make a judgement as to whether the individual has a mental health incapacity?

945. Mr Booth: He does.

946. Sir Reg Empey: I can see the point of the consistency of having somebody in the court. Is there not a risk of conflict of interest/confusion being caused to the individual vis-à-vis the role of a lawyer versus the role of an advocate? Could the person be confused as to whom his or her actual advisor is in circumstances in which two individuals are giving advice, which, presumably, at some point, could be conflicting?

947. Mr Booth: We are trained to the National Open College Network standard. There is a national appropriate adult network throughout the entire United Kingdom. We are affiliated to that network and have membership of the association. One of the first parts of our training portfolio is to make it absolutely clear, on arrival, between us, the solicitor and the detained person what each person's role is in the process. We spend some time ensuring that a detained person knows that we do not have a legal agenda and that our role is not to advise legally. We stress that our role is purely one of communication. In fact, at times, we communicate between the solicitor and the client if there is any particular difficulty, or between the police and a detained person.

948. Sir Reg Empey: Do you recognise that there may be a degree of confusion for someone who is vulnerable? That person may not appreciate the fact that the legal adviser might advocate a course of action to the client, the purpose of which may not necessarily be obvious to the person who has difficulties. There is potential for conflict with the client. How is that working out in practice?

949. Mr Booth: It is working very well. One of our key functions is to clarify such confusions for the person. We go to great lengths to do that. We have the greatest regard for the legal profession. However, there have been times when our staff have spoken to someone in one-to-one consultation and discovered that that person did not understand the legal advice that the individual had been given. Staff have almost had to encourage the solicitor to give the advice again.

950. Sir Reg Empey: Thank you very much, Mr Booth. There is not much time left.

951. The Chairperson: Our time has gone. However, two members have intimated that they wish to ask questions. I will allow them to come in.

952. Mr O'Dowd: My question is on a broader point. On reading the legislation, we could be drawn to the view that it further stigmatises people with mental health difficulties. How do we ensure that the legislation does not further stigmatise those people and that we open up the discussion on that issue? I am concerned about some of the language that is used in the documentation.

953. Mr Halliday: One real difficulty is the difference between what might be a healthcare route or a criminal justice route. That is why we await with great interest developments in mental health legislation, particularly capacity legislation and how that will affect the individual. I hope that the introduction of sound capacity legislation will avoid any further discrimination or stigmatisation of an individual. However, at present, there are issues about which route an individual, who may have committed a crime, but who, clearly, is vulnerable through mental health issues, is directed down. On the ground, we are hearing that, at times, individuals are advised to make a guilty plea in order that they go through the criminal justice system, where, at present, resources might be better targeted to them than if they had gone down the health route. That raises the issue of where resources are more appropriately applied. That is a worry given the further restriction of resources that is anticipated during the next few years.

954. Mr McCartney: I have a couple of brief questions. Is that station-specific or will it apply throughout the police estate?

955. Mr Booth: It will apply throughout the entire police estate.

956. Mr McCartney: Is the protocol to call parents then you?

957. Mr Booth: Yes. We have been referred to as stand-in parents.

958. Mr McCartney: Your figure of 640 parents refers to parents who refused, which meant that you were sent in as back-up.

959. Mr Booth: Well, the parent could be the victim and, therefore, by default, cannot be present.

960. The Chairperson: Thank you for your presentation.

961. I welcome the officials, Gareth Johnston, Tom Haire, Janice Smiley and Chris Matthews, back to the table. You have heard all the presentations, and we will hear the Department's response. Mr Johnston, we will direct the questions to you, and you can distribute them to whoever you feel should answer them. Why was the clause on special measures on knife crime withdrawn?

962. Mr Johnston: A split of opinion on that resulted from the consultation. The issue is not about whether people who are involved in knife-crime trials can get special measures directions. They can do so, and we are not changing that. It is about whether eligibility for those special measures directions should be automatic. Seven respondents were supportive of the proposal, which was because of the serious nature of the proceedings. Seven respondents were not supportive, and, in general, they were concerned about the balance between the defendant's right to a fair trial and the victim's rights. They made the point that, although it might very often be the case in proceedings around knife crime that there should be a special measures direction, that is not necessarily invariably the case. They said that, therefore, it should be left to the court's discretion. That is why we came to the conclusion that special measures should be available in the usual way and that it should be for the court to prescribe them but that they should not be granted automatically.

963. Mr Matthews: The decision on that was based purely on the evidence that came back from the consultation, and we felt that the arguments against held sway over the arguments for. The principle that each case should be decided on its merits stood here.

964. The Chairperson: Is there any evidence that knife crime is increasing?

965. Mr Johnston: No, it has been relatively balanced over the past five years. The levels are lower than in England and Wales.

966. The Chairperson: Do you think that the evidence is not strong enough to include special measures on knife crime? You got a mixed message from the consultation.

967. Mr Johnston: We got a mixed message, and the important thing is to have special measures available, but not to make them automatic.

968. Mr McDevitt: I come back to the earlier question about intermediaries. As you clarified earlier, clauses 12(5) and 12(6) spell out clearly the conditions in which an intermediary will be necessary. That begs the obvious question: why would you not specify the qualifications or the characteristics of an intermediary?

969. Mr Johnston: Intermediaries will operate in different sorts of situations. Very often, it might be because there are issues with someone's mental health, but it might also be because there are issues about someone's social functioning more generally. An intermediary might be used in the case of a young person.

970. There is a range of circumstances. There will be training and accreditation schemes for intermediaries before they are appointed by the court. However, we felt that trying to specify their exact qualifications would limit discretion in an interview situation that covers a range of circumstances.

971. Mr McDevitt: That is fine, Mr Johnston, except that, in clause 12, which deals with under-18s, paragraph (5) of proposed new article 21BA specifies that an intermediary will be called in only if the witness giving oral evidence in court is compromised by the accused's level of intellectual ability or social functioning. You specify clearly that intermediaries will be available to under-18s only if there is mental or social incapacity. It is not a very wide definition.

972. Mr Johnston: No, although, at the same time, those are two different things.

973. Mr McDevitt: Why do you not specify that it should be someone with mental health or social work qualifications? As I understand it, those are the only two types of professional who would be able to support an individual in that circumstance.

974. Mr Johnston: The intention is that there will be training and accreditation for those people.

975. Mr Matthews: The reason that we tried to keep it as flexible as possible is that one of the aims of the Bridging the Gap strategy is to tailor services specifically to victims as far as we can. We have attempted to provide the courts with enough latitude to provide an intermediary where necessary. We do not tie their hands by saying specifically who that intermediary should be. The idea is that, outside the courtroom, we will have training and accreditation programmes that will give the courts a list of people who have been trained and qualified through the Department from which it can pick those who have the skills or expertise required in any specific case.

976. I am sure that you are aware that the problem is that once legislation has been written, it can cause unforeseen consequences. In this instance, we have tried to be as flexible as possible while being specific about the function of the intermediary and the conditions in which an intermediary can be brought in.

977. The Chairperson: Have you costed the training, etc? Who will do this and pay for it?

978. Mr Matthews: We will pay for it. I think that we have costed it at around £97,000, but I can write to the Committee with a more specific figure.

979. Mr McDevitt: To reverse-engineer this, I am interested in how it would connect with someone who has been through an appropriate adult scheme. For argument's sake, is everyone who had an appropriate adult with them in a police station automatically eligible to have an intermediary when their case comes to court? The legislation says nothing about that; it does not tell us how those would connect.

980. Mr Matthews: I do not think that those necessarily connect. The legislation sets out that an intermediary can be appointed only on the application of the accused. Therefore, it is possible that someone could have both. However, it is also possible that a person who did not have an appropriate adult with them would qualify to have an intermediary.

981. Mr McDevitt: Can you envisage a situation in which someone had an appropriate adult with them but is not eligible to have an intermediary?

982. Mr Matthews: That is legislatively possible, but, in individual cases, it will be for the judge to make a decision based on the interests of justice.

983. Mr McDevitt: I suppose that we will return to this in our consideration of the clause. However, it strikes me that there is a bit of disconnect, as noble as the intention may be. Officials may want to reflect on that and join up the dots. It seems that you are meeting a similar need but staying silent and, therefore, opening up the possibility that judges, in their great wisdom, will not be as fully informed as they may need to be to come to a decision on the intermediary.

984. Mr Johnston: We will certainly give that further thought. I can speak to colleagues in the Department who have been responsible for the appropriate adult legislation under PACE to see whether there is a difference in how we join up.

985. The Chairperson: Why can you not use existing trained social workers and those who are trained in mental health issues? That is not what you said.

986. Mr Matthews: It is because we envisage that the needs may go wider than mental health or social care. We are aware of similar schemes that have operated in England and Wales, and we are following the model there. I can write in more specific detail about the sort of training that is available. However, there is specific training for intermediaries in court, because it is a specialised skill. As well as understanding the basic principles of mental health, they have to understand the court, because they are interpreting the legal framework, allowing someone to understand it and interpreting what they provide to the court. The issue may be bridging the gap between the specialism and an understanding of the wider legal world.

987. The Chairperson: I find it difficult to understand, and more difficult to accept, that you are telling us that skilled social and mental health workers may not be skilled in, for instance, going to court. I can think of many who are.

988. Mr Matthews: I am not suggesting that they are not skilled; it is just that the scheme that we are proposing will accredit them. It may be that some people already have those skills, so we would simply accredit them so that the court is aware that they are accredited. So, it is not that we are saying that people do not have the skills; it is just that we would accredit them to show that they do.

989. Mr Johnston: Not every social worker or mental health worker has had a great deal of engagement with courts. We think that it is important that anyone coming into the role knows the basic principles. For example, they must know that they are not to try to impact on the evidence that someone is giving, and they must know the limits of their role as an intermediary so that they do not do anything that would interfere with the interests of justice.

990. The Chairperson: Some of them may not have had that engagement, but I suspect that many of them would.

991. Mr Johnston: Many would, but we just want to make sure. When we are talking about the interests of justice, we just want to make sure that those safeguards are in place.

992. Sir Reg Empey: I know that you are going to return to this issue, Chairman, but I am trying to understand where the Department is coming from. I can see that, if someone has social difficulties or there is social dysfunction, an intermediary with a basic qualification in mental health issues or assessment would need to be present. However, am I right in thinking that you perhaps have at the back of your mind other individuals who may know the client and have a sense of the client's background rather than a paid professional who may have skills but does not know the individual? For instance, if somebody gets into bother, perhaps a family cleric or someone who knows the circumstances and is familiar with these things could fulfil that role. Is that what you are thinking, or are you thinking of other categories of professional?

993. Mr Johnston: As we go through the Bill, we are talking about different functions and different groups of people. For example, some intermediaries would be with someone in court or when they appear via a live link to help them with communication difficulties. So, that is one thing that is covered.

994. Sir Reg Empey: The people who I am talking about might not necessarily be what we class as professionals. They could be suitable or competent persons who perhaps know and can communicate with the individual and who may have some knowledge of their background and the context in which they function. Is that what you are getting at?

995. Mr Johnston: The point that I am trying to make is that there are different groups of people. There are intermediaries who work with people who have communication difficulties. There are intermediaries who would be with people in psychiatric hospitals, say Shannon Clinic, when they give evidence to court via a live link. Then, in the live link room, there would be the supporters of someone who is giving evidence under special measures, maybe a young victim or someone who has been a witness to a serious crime. In relation to the third category, I can absolutely see how the sorts of people who you mention, or even a family member who did not have a direct link to the offence or incident, could provide that function.

996. Sir Reg Empey: The issue is that we do not want to restrict people unnecessarily, but, at the same time, we are having a wee bit of difficulty in getting our heads around the categories. It might be useful to have an example of the sort of thought processes that you worked your way through as to why being overly restrictive would not serve justice as opposed to accepting on face value what you are proposing.

997. Mr Johnston: It might be helpful if we set that out in a table, because we are talking about different clauses of the Bill and different sorts of supporters.

998. Sir Reg Empey: You must have gone through this process.

999. Mr Johnston: That would give some examples of the sort of people we are talking about.

1000. The Chairperson: Mr McNarry, did you want to ask a supplementary question on that issue?

1001. Mr McNarry: I do not want to talk at cross purposes, so maybe you will keep me right. I just want to pick up on evidence that we heard earlier about the alleged offenders —

1002. The Chairperson: You are not going to digress into other territory, are you?

1003. Mr McNarry: No, I am not. Well, I do not know; that is up to you to judge. I do not think that I am going to, but I am not a crystal ball gazer, despite what you think of me.

1004. We heard evidence about an alleged offender at the custody stage. Does the type of recognised specialist that you are trying to identify — I think you have a bit more work to do on that — stay with an individual right through the process? At what stage would they then be displaced by what you are doing? It can be said that some people, specifically people who have certain mental illnesses, are unfit to stand trial. I am conscious that what you are trying to do is of benefit to the victim as much as it is to someone who may find themselves in a certain position because of their illness. Are you happy enough that you are covering that, or are you maybe going to do some more work on it for us?

1005. Mr Johnston: We will certainly give it some more thought. The appropriate adult scheme is really about the early stages of someone's engagement with the justice system, particularly in the custody suite and in interviews, and through contact with the police. By the time we get to the court stage, under our proposals, it would not necessarily be the same person coming in to give support.

1006. Mr McNarry: My worry is about that transfer. You have already admitted one type of expert into the process, and the issue is the handover from one expert to the other. We have seen and heard how difficulties can occur when a medical expert is handing over to another medical expert. I just want to be sure that you think that that transfer will be adequate.

1007. Mr Johnston: We will give that some more thought. There can be other situations where, for example, an interpreter is involved in the process at the police station but is not the appropriate person to be involved later on. We need to give that some more thought.

1008. Mr O'Dowd: I want to talk about special provisions for vulnerable witnesses. A number of people who gave evidence to the Committee said that we need to get the balance right, particularly in emotive cases, such as those that involve sexual offences, especially against young people. The person in the dock is the accused, and public opinion may be that they are in the dock for a reason, but we are in charge of ensuring that justice is done. What assurances can you give me that, in those provisions, the balance has not been pushed too much in the direction of the prosecution and away from the defence?

1009. Mr Johnston: Those considerations have been very real for us as we have developed the proposals. We can point to some examples. The proposals on knife crime, which we discussed earlier, are a good example; the feedback has been that the balance was perhaps not quite right, and, as a consequence, we have adjusted the proposals. So, we certainly listened to the points that were made about them in the consultation process.

1010. Mr O'Dowd: OK, you have listened in those cases, and a category was removed, but I am still concerned that, in emotive cases, the balance has shifted towards the prosecution to such a degree that defendants almost have to prove themselves innocent rather than the prosecution having to prove them guilty.

1011. Mr Johnston: I would go back to the purpose of the special measures provisions. They have been in place for 10 years now, and the purpose is to get at the best and most accurate evidence. It is not about favouring the prosecution over the defence but about allowing a witness, who may have been through very difficult circumstances, to give the best and most accurate account of what happened to them. That is what underlies the special measures provisions. In fact, the new guidance that is issuing on special measures is called 'Achieving Best Evidence'.

1012. Mr O'Dowd: You said that procedures to assist vulnerable witnesses have been in place for 10 years. I referred earlier to a 2006 report commissioned by the British Home Office that looked at the way in which the provisions were implemented there. In many cases, it was found that the measures were not being implemented properly. That brings me to my question: do we need extra legislation, or do we need the legislation that is already in place to be properly enforced?

1013. Mr Johnston: We can do more to ensure that the sorts of issues that were identified in that report do not arise in Northern Ireland. The Criminal Justice Inspection looked at that issue recently when it reported on sexual offence cases, and it found that, in 16 of the 18 sample cases, special measures had been implemented properly and at the right time and that the right questions had been asked. I take some comfort from that. However, we still could have done better in two of the 18 cases. As a result of that, we have set up a subgroup of the victim and witness task force to look specifically at those sorts of administrative arrangements around special measures to see how we can do better and, to address the specific criticism, to ensure that special measures are explored at an early stage in appropriate cases and are not left to the last minute.

1014. Mr O'Dowd: I am not questioning your statistics. However, I think that some of the other statistics in that report might not be as favourable as that one.

1015. Mr Johnston: I am quoting Northern Ireland statistics. The experience in England and Wales might be different.

1016. Mr O'Dowd: Even in the CJI report, which we received evidence on recently, there were statistics. That is OK; I will go through the report again myself.

1017. Mr Johnston: The key thing is that we have now set up a group to look at those practical issues, which I do not think require changes to legislation. However, it is about how the legislation is being used day to day.

1018. Mr McCartney: I wish to make a couple of points. Is the offender levy scheme already in operation in England and Wales?

1019. Mr Johnston: Yes, it is.

1020. Mr McCartney: How long has that been in place?

1021. Ms Smiley: A victim surcharge was legislated for in 2004 but was not implemented until 2007.

1022. Mr Johnston: Having said that, they have focused on fines, so they have not yet fully rolled out the scheme to some of the other areas in which we propose to implement our scheme.

1023. Mr McCartney: How is the collection and administration of the levy operating in general? The prediction for here is that there will be a one-off capital cost and that all the other costs will be absorbed. Is that the practice at present in England and Wales?

1024. Ms Smiley: The problem in England and Wales is that a much bigger area and number of court jurisdictions need to be covered but there is no joined-up IT system. However, the Causeway system in Northern Ireland will enable all the relevant parties to see the information and to share it at the appropriate time.

1025. Mr McCartney: The prediction is that the cost will be largely absorbed within existing administrative processes. What is your definition of "largely"? Will you be back here in a couple of year's time saying that the administration costs were higher than you first believed?

1026. Ms Smiley: That is why we are saying that we will phase the implementation of a couple of the disposals. We will have other planned reforms in place that we can piggy-back on rather than spending extra money now bringing them in especially for the offender levy, because they have a much wider application. Those costs are built into the projects.

1027. Mr McCartney: As regards the use of the money, your submission states that the fund will be separated from other running costs. How will that be monitored, and who will monitor it?

1028. Mr Johnston: We propose to set up an arrangement with DFP whereby we will account for the fund separately from the ordinary budget.

1029. Lord Browne: I will be quick. In your opinion, at which point would an extension of special provisions create the outcome of protecting the witness or plaintiff from scrutiny rather than of simply assisting them to give their evidence? Where exactly is the line drawn?

1030. Mr Johnston: Special measures kick in once a case gets to the court stage, because they deal with someone giving evidence for a court trial. There are, though, wider measures to protect and address the needs of vulnerable witnesses, and the actions of police can range from general advice and assistance all the way up to, in a small number of exceptional cases, very special witness protection. Therefore, the special measures that we are legislating for in the Bill will kick in at the court stage, but other support will be available to vulnerable witnesses before that.

1031. Lord Browne: Have you given any consideration to whether the changes to the special arrangements will assist people in making false accusations against a defendant?

1032. Mr Johnston: If someone is set on making false accusations, what we do with special measures will not prevent that — I hope that it will not help either. We are trying to put people in a situation where, as I have said, they present the most accurate evidence. There is a category of people who will lie in court, and the court process must sort that out and get the truth. However, there is also a category of people who are under tremendous stress. That stress can affect their recall of events and how effectively they put forward their story in court. We are trying to help that category of people. If we help them, we will, at the end of the day, get better evidence.

1033. The Chairperson: I want to run two points past you before you leave the table. Victim Support says that the difficulties faced by victims are related to culture and attitude rather than the need for further legislation. Will you comment on that?

1034. A 'Law Society Gazette' article that is headlined "Victim surcharge IT chaos" says:

"Despite collecting an estimated £305,000 since it began, HMCS does not know how many £15 surcharges are levied or what percentage of those have been paid".

1035. No IT system can pick that up. Will you comment on that?

1036. Mr Johnston: As Janice said, the difficulty in England and Wales was that they did not have an integrated IT system. We do; we have the Causeway system, and the changes that we make will all feed into that system. Therefore, we are starting from a higher base than England and Wales, and we have the potential to address those issues so that we have an accurate handle on the collection of the levy.

1037. From the point of view of victims generally and their engagement with the justice system, we acknowledge that the Bill's content is part of a wider programme of work. A code of practice for victims is out for consultation at the moment. That is about the standards that victims can expect from the justice system. Our new focus on speeding up justice is very much based on victim-focused targets, and we are in the process of looking ahead and starting to develop our next strategy for victims and witnesses, because the five-year strategy that we have been working to is coming to an end.

1038. The overarching concern of the criminal justice system has to be justice. For example, a victim might want someone to be convicted, and that may not always happen. However, we can address the issues of how victims are treated. We can consider the information that we receive and make sure that victims get services according to their needs. Chris might want to comment on what is happening more generally, but I just want point out that a bigger programme of work on victims is ongoing, and, if the Committee wants to hear more about that, I am sure that we could give a separate briefing.

1039. The Chairperson: We will stop there; our time is up. Thank you very much for your tolerance and endurance today. I suspect that we will talk to you later.

2 December 2010

Members present for all or part of the proceedings:

Lord Morrow (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Lord Browne
Mr Thomas Buchanan
Sir Reg Empey
Mr Paul Givan
Mr Alban Maginness
Mr Conall McDevitt
Mr David McNarry
Mr John O'Dowd

Witnesses:

Mr Robert Crawford
Ms Geraldine Fee
Ms Laurene McAlpine

Northern Ireland Courts and Tribunals Service

Mr Gareth Johnston

Department of Justice

Mr Adrian Colton
Mr Dermot Fee
Mr Brendan Garland

Bar Council of Northern Ireland

Ms Gillian Clifford
Ms Noelle Collins
Ms Sonya Lutton
Ms Patricia Lyness

Women's Aid Federation Northern Ireland

Mr Norville Connolly
Mr Alan Hunter
Mr Brian Speers

Law Society of Northern Ireland

1040. The Chairperson (Lord Morrow): With us again is Gareth Johnston, deputy director of the justice strategy division in the Department of Justice. From the Northern Ireland Courts and Tribunals Service (NICTS), we have Robert Crawford, head of the public legal services division, Geraldine Fee, head of criminal policy and legislation division, and Laurene McAlpine, head of civil policy and legislation.

1041. The first briefing on the legal aid clauses will last 10 minutes, followed by five minutes for clarification on any issues that might arise. That is the procedure that we will use. Mr Johnston, will you lead off?

1042. Mr Gareth Johnston (Department of Justice): Thank you, Chairman. Today we are presenting on Parts 7, 8 and 9 of the Justice Bill, which deal with legal aid, miscellaneous matters and supplementary provisions. My colleagues here from NICTS are very much in the lead in those areas, and I will defer to them shortly and let them present the provisions to the Committee. However, there are a few provisions in the miscellaneous matters in Part 8 that fall to the Department. I will cover those briefly at the end of the short descriptive presentation, and I will also outline the provisions in Part 9. In line with the structure that the Committee has set out, I now hand over to Robert Crawford, who will discuss Part 7 of the Bill, which relates to legal aid.

1043. Mr Robert Crawford (Northern Ireland Courts and Tribunals Service): I am conscious of the time, so I propose to run through the legal aid clauses of the Bill quite quickly. Clause 85 contains a new power to introduce a fixed means test for criminal legal aid. There is already a means test for criminal legal aid. If a judge considers that a defendant has insufficient means, that will satisfy the means test. The power in clause 85 would allow us to set a fixed test; in other words, it would allow us to set a specific income or assets limit to rule someone ineligible for legal aid.

1044. Clause 85 attracted the most concern during the consultation process. The responses were mainly about the possible impact on access to justice, and I reassure the Committee that we are alive to that concern. At present, more than 95% of defendants receive legal aid in criminal cases here. In England and Wales, where there has been a means test for some time, the level is around 93%, even with a fixed means test in place. We commissioned an independent economist to look at what impact a fixed means test will have and to examine different ways of assessing that. We expect that analysis to be with us on 20 December, and, as we said in previous meetings, we will share that analysis with the Committee and place copies of it in the Assembly Library so that anyone with an interest can see exactly what it says.

1045. The final outcome of any proposal would be subject to subordinate legislation, which would be subject to scrutiny by this Committee and a full equality impact assessment (EQIA). We do not have fixed ideas on the level of the fixed means test at present. We need to look at the costs of administering such a test. It is certainly not a foregone conclusion that we will go forward with the test after the detailed analysis has been done; the costs may prove to be such that it would not save a great deal of money.

1046. Clause 86 relates to the recovery of defence costs orders. Under this clause, we hope to bring in a power to allow for the recovery of defence costs in cases in which it is clear that a defendant has ample means to fund his own defence. That would operate at the end of a trial, at which stage a judge could make such an order. We intend that it would be used only in cases that are very clear — where the defendant very clearly has the money to pay for his own defence. We intend to bring it in for Crown Court cases first. The average cost of a Crown Court case is £9,000, so there are significant sums of money to be recovered if we decide to use it. We anticipate that, if it works, we will extend it to the Court of Appeal in future years.

1047. Clause 87 adds the guarantee credit element of the state pension scheme to the passporting benefits for the purposes of eligibility for civil legal aid. That is very much a technical thing. There are a number of passporting benefits that give automatic eligibility for legal aid. The guarantee credit element of the state pension scheme came in after those were specified in the existing legislation. It is right to add that. It is currently dealt with by ministerial guidance; we are putting it into the regulations because the opportunity is there to do that.

1048. Clause 88 deals with compassionate bail and repeat bail applications. Clauses 100 and 101 introduce new provisions for those. It is right that legal aid should be available for compassionate bail and repeat bail applications, and, again, we are taking the power under the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 to make sure that that is available.

1049. In clause 85 we apply the power to make a means test to the 1981 Order. Clause 89 applies that power to the Access to Justice (Northern Ireland) Order 2003. The criminal legal aid provisions of the 2003 Order are not yet in force, and when they come into force they will largely replace the 1981 Order, hence the need for two separate provisions here.

1050. Clause 90 repeals article 41 of the 2003 Order. That repeal is necessary to allow the Legal Services Commission to put money into what is called a litigation funding agreement (LFA). Money damages is the area concerned in civil legal aid. It is not a high priority for legal aid when resources are tight, and we anticipate that when the funding code comes in, it will be a low priority for such funding. That is why an alternative approach is being explored by the Legal Services Commission with the legal profession in discussions with the Bar and the Law Society. That has not produced an agreed way forward yet, but we anticipate that, if an agreed way forward is found, there will be a need for start-up funding for such an arrangement. We need to repeal this particular article to allow that to be done. Again, it is not clear yet whether agreement can be reached and whether the funding will be proceeded with.

1051. Clause 91 makes a number of minor changes that largely extend the scope of civil legal aid. The first change is to ensure that legal aid is available for a person specified in a protection from harassment order. That ensures that the person who is protected by the order can get legal aid to argue against the variation or discharge of a restraining order made to protect him or her.

1052. The next change replaces references to the Asylum and Immigration Tribunal with new references to the First-tier Tribunal and Upper Tribunal. The functions of the first Asylum and Immigration Tribunal have transferred to the new First-tier and Upper Tribunals, so that is a straightforward change of terminology.

1053. The third technical change ensures that legal aid is available for a witness who is protected by a witness anonymity order or investigation anonymity order. That is an extension to allow such a protected witness to contest any application by another party to have that protection order varied or discharged.

1054. Next, we have a technical change to ensure that legal aid is available in respect of an order under section 215A of the Proceeds of Crime Act 2002 relating to the sale of seized property. That is to ensure that people have the legal assistance that they require to contest such an order.

1055. Finally, we have a change to ensure that legal aid is available in respect of the variation, renewal or discharge of a foreign travel restriction order under the Counter-Terrorism Act 2008. Again, we are expanding the scope of legal aid to make sure that it is available for people to contest that order.

1056. The Chairperson: Does anyone wish to raise any point around clarification?

1057. Mr McDevitt: On a point of clarification on clause 85, did you carry out a full equality impact assessment?

1058. Mr Crawford: We have not carried out an equality impact assessment on the change that we are proposing in the Bill, because we do not have the detail that we would want to put out to anyone to seek their views. When we are preparing for subordinate legislation, we will carry out an EQIA on the proposals before we bring them to the Committee.

1059. Mr McDevitt: So, we do not know the actual impact yet?

1060. Mr Crawford: We cannot assess the impact until we have some idea of what the level is going to be set at.

1061. Mr McCartney: I have a number of questions about the process. Clause 85 contains an enabling power to make the rules.

1062. Mr Crawford: Yes, it does.

1063. Mr McCartney: The rules are then subject to subordinate legislation, which is open to scrutiny.

1064. Mr Crawford: That is right.

1065. Mr McCartney: I notice that the clause keeps referring to "his" disposable income and so on.

1066. Mr Crawford: That means his or her.

1067. Mr McCartney: But it does not say that. Does that pose any problems?

1068. Mr Crawford: That is standard legal terminology; the word "his" includes her.

1069. Mr McCartney: Who initiates the order to recover costs?

1070. Mr Crawford: The judge could initiate that at the end of the trial. Our thought is that, in most cases, the Legal Services Commission will initiate it, as it is the body that will recover the cost. That money will then go back into the legal aid fund.

1071. Mr McCartney: Will the reasons be listed for scrutiny purposes?

1072. Mr Crawford: The order to recover costs would be acquired by going to a court, so the reasons for seeking the order would be specified in the request. Any person could approach the court for an order, but we anticipate that, in most cases, the Legal Services Commission will do so.

1073. Mr McCartney: The explanatory and financial memorandum state that applicants in receipt of the guarantee credit element of state pension credit are deemed as:

"automatically meeting, in certain circumstances, the financial test for civil legal aid."

1074. It seems a wee bit contradictory to say that something is automatic but only in certain circumstances.

1075. Mr Crawford: It is a passport benefit, so a person in receipt of the benefit will automatically get legal aid. There are other circumstances that might apply to someone's legal aid application that make it ineligible; in other words, it might not be the type of case for which legal aid is available.

1076. Mr McCartney: The litigation funding agreement is an agreement by which a person can enter into that process and incur no legal costs if he or she is unsuccessful. If the person is successful, then he or she will pay.

1077. Mr Crawford: The idea is that, if someone is successful, a proportion of his or her claim will go back into the fund to support other claimants.

1078. Mr McDevitt: Will the secondary legislation that you anticipate under clause 85 be passed by negative or affirmative resolution?

1079. Mr Crawford: Negative resolution is the normal procedure for legal aid, but, again, that is still subject to Committee scrutiny.

1080. Sir Reg Empey: I picked up on Mr Crawford talking about passport benefits. Would any of the proposed changes, such as the single benefit that might come in in the next year or so, have any impact on the proposals?

1081. Mr Crawford: Where there is a change in benefits that are considered to be appropriate to use as passporting benefits, we use ministerial direction and allow those benefits to be used for passporting purposes. Under the direction given by the Minister, we then bring them into legislation when the opportunity comes up. So, the answer is yes, we want to take account of any benefit that comes into force, because, if the benefit is given on the basis that someone has need, he or she will generally need legal aid as well and would need to be eligible.

1082. Sir Reg Empey: If a universal credit comes in, a lot of other benefits may disappear. Do you feel that there is adequate provision?

1083. Mr Crawford: At the moment, we use ministerial direction. That is what is happening with the guarantee credit element; people who receive it are getting legal aid. However, at the first available opportunity, it is appropriate to bring that into the legislation.

1084. Lord Browne: Has the Department received any legal advice to indicate that the changes to legal aid in the Bill are consistent with article 6 of the European Convention on Human Rights (ECHR)?

1085. Mr Crawford: We have not sought specific legal advice about the legal aid provisions. We have our own legal advisers who proof the provisions for us, and we are content that they are consistent with article 6.

1086. Lord Browne: So, you have not sought opinion from any other source.

1087. Mr Crawford: We have not sought counsel's opinion, because we have our own internal legal advisers in my division and in the Courts and Tribunals Service generally.

1088. Mr Johnston: The Bill has gone through the Attorney General's office, which has advised the Minister that it is within competence. That includes consideration of ECHR issues, so there were no concerns raised about that part of the Bill.

1089. The Chairperson: We move on to Part 8, "Miscellaneous", and Part 9, "Supplementary Provisions". Again, the same rules will apply; we will go for a 10-minute presentation and five minutes for clarification.

1090. Ms Geraldine Fee (Northern Ireland Courts and Tribunals Service): I will be as quick as possible. As Mr Johnston has outlined, Part 8 contains a number of miscellaneous provisions that are mainly designed to enhance court powers and to make certain other improvements to how business is conducted.

1091. Clauses 92 and 93 make adjustments that are intended to open up the court tiers at which certain types of bail can be granted. Clause 92 provides Magistrate's Courts with a power to grant compassionate bail to a defendant who has previously been remanded in custody by that court. Compassionate bail is bail to a remand prisoner for a specific purpose and for a temporary period. As the Committee will have noted from the briefing paper, at present, compassionate bail can be granted only by the High Court or the Crown Court.

1092. Clause 93 allows an application for repeat bail to be made to the Crown Court where bail has been refused by a Magistrate's Court and there has not been a change in circumstances. At present, only the High Court can hear such applications. By widening the range of courts that can hear those applications, the provisions are intended to free up High Court time and to allow its resources to be used more efficiently. The provisions have the support of the judiciary. We conducted a targeted consultation with the professions and other interested groups, and no negative responses were received.

1093. Clause 95 creates the power to allow court rules to be made to specify the circumstances in which information on family proceedings concerning children can be shared without the need for the express permission of the court. For example, that will allow a parent to discuss a case about a child with an elected representative or with a professional adviser such as the Children's Commissioner. At present, such a conversation could potentially be a criminal offence or a contempt of court. The purpose of clause 95 is simply to make it easier for information on family proceedings concerning children to be shared in certain circumstances. It is important to highlight that the clause does not provide for media attendance in family courts. As indicated, clause 95 is an enabling power only, and any court rules that are made will be subject to full public consultation to ensure that they are in the best interests of children in Northern Ireland.

1094. Clauses 96 and 97 make adjustments to the membership of the Crown Court Rules Committee and the Court of Judicature Rules Committee and are designed to enhance the expertise that is available to those committees. The committees make the rules that govern the practice and procedure that should be followed in the Crown Court and the High Court respectively. Membership of those committees is prescribed in statute and includes the Lord Chief Justice, certain members of the judiciary and solicitor and barrister representatives.

1095. Clause 96 amends the membership of the Crown Court Rules Committee to include a public prosecutor nominated by the Director of Public Prosecutions and a person nominated by the Attorney General. Clause 97 extends the membership of the Court of Judicature Rules Committee to include the Attorney General or his nominee. Members may have noted from the briefing paper that we had intended originally to amend only the Crown Court Rules Committee membership to add a public prosecutor nominated by the Director of Public Prosecutions. However, at the suggestion of the Attorney General, we looked again at the proposals and took the view that, as well as including a public prosecutor on the Crown Court Rules Committee, there is benefit in including a person nominated by the Attorney General. The Attorney General also suggested that he or his nominee should be a member of the Court of Judicature Rules Committee. Again, we considered that proposal and agreed that it would be desirable to enhance the expertise of the committee.

1096. Clause 98 is a very technical amendment to the Criminal Appeal (Northern Ireland) Act 1980. It amends the 1980 Act to ensure that the Court of Appeal deals with any appeal against a sentence imposed by the Crown Court following committal to that court for consideration of a confiscation order under section 218 of the Proceeds of Crime Act 2002. There is currently no statutory provision to allow such an appeal to be heard by the Court of Appeal, which is the normal venue for such appeals. Effectively, the clause will address a gap in the current legislation. As the Committee will be aware from the briefing paper, the clause, as currently drafted, contains a minor typographical error that was not picked up before the Bill's introduction. Therefore, we will table a small amendment to the clause at Consideration Stage to enable renumbering.

1097. Finally, clause 99 contains a provision that will expand the powers of Magistrate's Courts in criminal proceedings to allow them to issue a witness summons to direct a third party to appear and produce any item of evidence where the court is satisfied that that person is able to provide material evidence. At present, the powers of the Magistrate's Court are limited to occasions when such an item would be admissible in evidence.

1098. This amendment will bring the powers of the Magistrate's Court into line with those of the Crown Court. As a result, it is hoped that more cases that are capable of being dealt with by the Magistrate's Court will remain there rather than defendants choosing to be tried in the Crown Court to avail themselves of its wider third-party disclosure powers. Again, no objections were received to this provision in our targeted consultation and it was welcomed by the Bar Council. That finishes my section, and I will pass over to Mr Johnston.

1099. Mr Johnston: We have reached the aspects of the Bill that concern necessary things and detail rather than exciting things and headlines. Clause 94 tidies up a remaining bit of legislation on crimes with offensive weapons, including knives. It brings the available sentences into line with those for other sorts of knife crimes, following indictment and conviction, that mean up to four years imprisonment. Being armed with a dangerous or offensive weapon with intent to commit an arrestable offence is not prosecuted often, but it is a useful offence to have because it can be prosecuted in respect of having offensive weapons on private property, and the police have confirmed that they would like to keep it.

1100. Clause 100 enables AccessNI to issue a copy of a criminal conviction certificate to an employer when the application is for employment purposes. At the moment, AccessNI is authorised to issue only one copy of the certificate, which normally goes to the applicant but can go to the employer. Very often, both want a copy, so the clause will allow two copies to be issued at the same time by AccessNI. It makes things more convenient and speeds up the process. The change will mean that Northern Ireland will be the only jurisdiction in the United Kingdom to provide that service.

1101. Clause 101 concerns the accounts that the Northern Ireland Law Commission needs to provide each year. The original provision, we feel, was over the top. The commission is an advisory, as opposed to an executive, NDPB and the money that it spends is already accounted for through the departmental accounts. Asking it to produce a full set of commercial accounts is overkill and is costing quite a bit of money. Clause 101 tidies that up. The commission will still produce a financial statement but on a simplified basis that will feed into the departmental accounts. The Northern Ireland Audit Office is content with the changes.

1102. In Part 9, there are seven clauses concerning supplementary or transitional provisions. They are about regulations and orders that can be made in respect of other aspects of the Bill, and they are about commencement provisions. They are the standard legislative provisions that appear in Bills, and if the Committee has any questions about them, I am very happy to answer them. The purpose and effect of each of the powers is set out in the regulatory powers memorandum, which the Committee has seen.

1103. Mr McDevitt: Will the subordinate legislation under clause 95 also be passed by negative resolution?

1104. Ms G Fee: Yes. That is correct.

1105. Mr McNarry: Clauses 96 and 97 mention the Crown Court Rules Committee and the Court of Judicature Rules Committee. You welcomed the inclusion of the Attorney General on those committees. The clauses mention his nominee. Will you tell me about the status of the Attorney General's nominee?

1106. Ms G Fee: It is anticipated that it would be someone from the Attorney General's office, but it is a matter for him.

1107. Mr McNarry: But, the Lord Chief Justice, members of the judiciary, barristers and solicitors and their status have been described in the Bill. I am not challenging it. It is just the looseness of the words "a person nominated". Can that not be more specific? A lot of people work in his office.

1108. Ms G Fee: We can take that back and look at it.

1109. Mr McNarry: It would tidy it up. Thank you.

1110. The Chairperson: The explanatory and financial memorandum, when referring to clause 95, says:

"This disclosure will be between specified persons and in specified circumstances."

1111. Will you elaborate on that?

1112. Ms G Fee: The detail of the rules needs be worked through, and we propose to undertake a full public consultation exercise on that in which we will consult with all the interested parties. As I said, we took the enabling power simply to allow us to bring that forward.

1113. The Chairperson: So, we will hear more about that?

1114. Ms G Fee: Yes.

1115. The Chairperson: Thank you for your presentation. Please remain in the Public Gallery. Other issues may arise later.

1116. We now have representatives of the Bar Council, who will outline key points and issues regarding Parts 7, 8 and 9, which are legal aid, miscellaneous and the supplementary provisions. I welcome Adrian Colton QC, the chairman of the Bar Council; Dermot Fee QC, a member of the Bar Council; and Brendan Garland, the chief executive. Mr Mark Mulholland is not here. You are very welcome. You will have 10 minutes in which to outline your brief, and after that we will have a question and answer session, which will last for a maximum of 20 minutes.

1117. Mr Adrian Colton (Bar Council): I thank the Committee for the invitation to address the Committee. You have already met me and Mr Garland. I asked Mr Fee to come because he has a particular interest and expertise in civil legal aid. That subject might be of interest to the Committee. I apologise for Mr Mulholland being unable to attend. He is a real barrister and is in court at the moment.

1118. The Chairperson: Somebody has to do it.

1119. Mr Colton: Indeed. Before I address Parts 7, 8 and 9, I acknowledge the significant amount of work that has clearly gone into drafting the legislation. It is a pleasure and privilege to consider legislation drafted in Northern Ireland rather than in Westminster. It is a welcome piece of legislation.

1120. On another positive note, the Bar Council particularly welcomes some features of the Bill. We very much support the adjustment of the membership to the Crown Court Rules Committee and the Court of Judicature Rules Committee, although I take on board Mr McNarry's comment that it should be clear that it is the Attorney General. Those appointments will add to the expertise of those committees. I encourage this Committee to take on board the views of those committees when it considers legislation. They can provide relevant insights into some of the matters that this Committee has to consider and I urge it to liaise with those bodies if appropriate.

1121. I also make similar comments about the Law Commission. The Bill deals with the accounts of the Law Commission, but I encourage this Committee to proactively engage with the Law Commission. It can come forward with very good, substantive law. It is not always attractive or headline grabbing material, but it has come up with some excellent reports that have, in the past, gathered dust in libraries. I urge that the Committee to take on board the advice and views of the Law Commission. It has recently completed extensive work on land law which might commend itself to this Committee, even if it is not something that will necessarily attract any media attention.

1122. Clause 99, which is about the power of a Magistrate's Court to, in essence, obtain third-party disclosure, is particularly welcome. The legislation is detailed and comprehensive, but, in effect, it will provide for fairer trials in the Magistrate's Court and we feel that those provisions are long overdue.

1123. Many of the miscellaneous provisions, which are set out in Part 8, are tidying-up matters that fill gaps in legislation. Certainly, in our view, they are unobjectionable. I do not have any particular comments to make on them, unless I am asked to do so.

1124. There are, however, two particular matters in the Bill about which we have reservations and want to raise concerns. If permitted, we would like to address those with you. The first relates to clause 85, which deals with eligibility for criminal legal aid, and the suggested change to the means test for that. The other relates to clause 90, which deals with litigation funding agreements (LFAs). Both those clauses will potentially impact significantly on access to justice. If it is acceptable to the Committee, I propose to deal with criminal legal aid and Mr Fee will deal with LFAs.

1125. On a general level, it might be worth remembering the Bill's policy objectives, which are set out in its explanatory and financial memorandum. They are to reduce costs, do business better and improve access to the justice system. It is fair to say that there is obvious tension between those laudable objectives. On one hand, to reduce costs may well be desirable for the legal aid budget. However, in certain circumstances, it is bound to impact on access to justice. What we should seek to do, and what my submission focuses on, is to ensure that we get the balance right. I have concerns about that balance with regard to those two provisions.

1126. Of course, the other declared objective of the Bill is to deliver better and enhanced services for victims. The victims who are envisaged in the legislation are, primarily, victims in criminal law. However, it is important to remember that, in the context of civil litigation, there are also people who sustain serious injuries at work or as a result of clinical negligence and so on, and they are also victims. Their rights and entitlements should also be borne in mind. It is significant that less than 1% of the legal aid fund is spent supporting those who are victims in the civil sense — those who sustain personal injuries. That should be borne in mind when considering support for people in money damages claims.

1127. I want to turn to the means test for criminal legal aid, which is dealt with in clause 85. Clearly, what drives that provision is the objective to reduce costs. The Bar fully accepts that there is a need to reduce the legal aid bill in this jurisdiction. Indeed, we have been engaged for over a year in discussions with a view to reducing the legal aid bill from £104 million to £79 million. We support that move. We are determined to ensure that legal aid fees will meet that objective. This is a different matter, however, as it will impact on people's access to justice and levels of representation.

1128. I want to raise a number of matters about the outworkings of clause. The first is that it is our strongly held view that the decision to grant legal aid should remain a judicial function: it should remain the function of the court and not of the Legal Services Commission or some other body that is appointed by the commission. The court and judges are best placed to judge what is in the interests of justice. Remember that, in the granting of legal aid, there are two tests: interests of justice and financial eligibility. That function and those decisions should remain with the judiciary. They should not be transferred to the Legal Services Commission.

1129. The second matter to consider, if there is to be a financial eligibility test, is the levels. I understand that the legislation is closely modelled on the English and Welsh systems. I am subject to correction by the Northern Ireland Courts and Tribunals Service when its representatives respond; however, it is my understanding that, currently, in England and Wales, someone whose gross income is less than £11,000 per annum, or £12,500 if they have dependants, is automatically entitled to legal aid. If someone earns between £11,000 and £20,000, or between £12,500 and £22,500 with dependants, it depends on their disposable income. Anyone who earns over £20,000, or £22,500 if they have dependants, is not eligible for criminal legal aid. If that sort of provision is introduced in this jurisdiction, it will have serious consequences indeed for legal representation. It cannot be right that a schoolteacher, for example, or someone with a reasonably good standard of living who earns more than £22,500 a year, would be denied legal aid if they were faced with a serious criminal charge. What are the levels to be? That is a very important question.

1130. The next issue is whether the levels will be different for different courts. I can well understand that the test for someone who is facing a minor charge in a Magistrate's Court would be very different from that for someone who is facing, for example, a murder charge or a serious fraud charge in the Crown Court. The Committee needs to look at that. Will there be different levels for different types of crime in different courts?

1131. Moving on from that: if there is to be a financial limit, how is that assessment to be made? It seems that there is going to be a very high level of administration if there is to be some sort of formal assessment of means. Applications will have to be made; committees will have to be set up to review those; there will have to be a right of appeal for those applications; and, certainly if the civil experience is anything to go by, that will result in very significant administrative costs. Perhaps more importantly, it will also result in delay, and I know that this Committee and others that are dealing with legislation are very anxious to speed up the criminal process and to root out avoidable delay. It seems to me that, if that type of test is introduced in the Crown Court, it will inevitably result in delay. People are entitled to say that they are not ready for trial because their legal aid application has not yet been considered. There are inherent dangers in approaching criminal legal aid in that way: it will result in further administration and could well result in delay.

1132. Most importantly, our view is that those measures carry the serious risk of injustice. I gave the example of a teacher, perhaps a vice-principal of a school who is faced with an allegation that, 20 years ago, he or she abused a child. In the current climate, that would be likely to go to trial. Is it seriously being suggested that someone in that position will not be entitled to legal aid to defend a serious charge such as that? It seems to me that such a person is bound to be in excess of the sort of —

1133. The Chairperson: Mr Colton, I will have to stop you there.

1134. Mr Colton: Have I run out of time already?

1135. The Chairperson: You have run out of time.

1136. Mr Colton: Mr Fee will deal with the LFAs. However, I could finish the point on injustice within one minute. There is a danger that people will be forced to defend themselves without legal aid. Will they be able to challenge DNA evidence, forensic evidence, or engineering evidence? Corners will be cut. I am saying that there is serious risk of injustice if this provision is passed. Hopefully, Mr Fee will now address you on LFAs.

1137. The Chairperson: Unfortunately, Mr Colton took up your time, but anyway.

1138. Mr Dermot Fee (Bar Council): I will make just a couple of short points. I will focus on the litigation funding agreements in clause 90, which allows the Legal Services Commission to enter into those agreements under the Access to Justice (Northern Ireland) Order 2003. The situation in respect of money damages cases, which have been mentioned — essentially personal injury cases — is that those are no longer a priority within the Legal Services Commission's funding of legal aid. The Committee should look very carefully at that position.

1139. At the moment, there is a legal aid budget of £104 million. The funding of personal injury cases represents between £1 million and £2 million — 1% of the overall budget. That gives access to justice to people who might be described as victims: people who are injured in industrial accidents, road traffic accidents, etc, sometimes very seriously. The problem is that, if legal aid is not available to those people for money damages cases, what is the alternative? The alternative that is being suggested is litigation funding agreements, which would allow third parties — essentially insurance companies — to finance that type of litigation. That access would be very restricted. We think that the effect of that would be to prevent access to justice for victims who have claims that are entirely justified and for which they are entitled to compensation.

1140. The reason for the amendment is to try to allow the Legal Services Commission, to take, as I think it was put, an "alternative approach to funding". However, I am asking this Committee and anyone else who is considering this matter to look again at the question of whether money damages should be excluded from legal aid. If £104 million is spent, and if most money damages cases are successful, and if it costs only £1 million or £2 million — 1% of that overall budget — is it appropriate to use another untried way of providing assistance that may be unsuccessful? The question is whether one should look again at continuing to provide civil legal aid at a very small cost to victims of injuries. The reason why the costs are small is because most of these cases are successful. They are genuine cases.

1141. I apologise as I am running on a little bit, but we can all see the current concept of a compensation culture, which is repeated over and over again. Most of these cases are absolutely genuine, they are successful and do not cost the legal aid budget one penny. Only a small minority are unsuccessful.

1142. A system of third-party funding would open up a whole nightmare scenario, is what I was going to say. What has happened in England and Wales is that people, through insurance companies, are trying to finance and live off litigation, and one has to ask whether that is appropriate. The questions are whether, if someone is injured, they should have access to the courts; should obtain their compensation at a reasonably low cost; should be able to be funded by legal aid if they qualify under those provisions; and should be funded by legal aid at a very low cost.

1143. The Committee should also note that, because it is available to so few, there has been a 250% reduction in applications for civil legal aid over the past eight years, so it is a very small area. I suggest the Committee look at it, should it be retained. I apologise both for speaking quickly and overrunning.

1144. The Chairperson: You can talk to your colleague outside about that. [Laughter.]

1145. Mr Colton: That would be the first time.

1146. Mr McDevitt: Clause 85 was mentioned. We are talking about something that would still be subject to secondary legislation and a full EQIA. Is it not a premature debate?

1147. Mr Colton: We have to flag up the important issues. Our experience is that, once you provide the enabling legalisation, it builds up a momentum and a degree of inevitability occurs. I was anxious to flag up the issues, and I was perhaps more temperate in our written response. However, I have serious concerns about where it is going, particularly when considering the England and Wales provisions, which, it seems to me, these are largely modelled on. However, I take your point that there will be another chance to look at it.

1148. Mr McDevitt: This would be secondary legislation by negative resolution, so it would provide for a very limited degree of scrutiny, certainly by this House. What is your opinion on that?

1149. Mr Colton: I regret to say that I am not overly familiar with the significance of what you said about negative resolution and so on, but, I am opposed to it. I do not think it is a good idea. However, I would be concerned if there were to be no further scrutiny of it, because, of all the clauses, that is potentially the most significant around access to justice.

1150. The Chairperson: As a point has been raised about negative resolution, the Committee Clerk will give a 60- to 90-second brief on the subject.

1151. The Committee Clerk: Negative resolution rules would give the Assembly and this Committee the least amount of opportunity for control. There will be consultation at the draft stage, but once the rule is laid, the Committee either has to agree to adopt it in its entirety or pray against it. It cannot amend it. Other forms of statutory legislation, such as affirmative of confirmatory resolution, give more control and more chance to debate.

1152. Mr McDevitt: Mr Fee, I have a question for clarification. On the face of it, LFAs sound like a good thing because they are incentivising the legal system to pursue money damages cases that have a high chance of success and they are underwriting themselves.

1153. Mr D Fee: We are not totally opposed to them, but I think they need careful scrutiny. At the moment, article 40 of the Access to Justice (Northern Ireland) Order allows for LFAs. That is where a third party funds the plaintiff for a case, gets a benefit from it and tries to pass that on to the defendant. In some ways, they are selling the case, which can give rise to conflicts, because the person who is promoting or financing the case, essentially an insurance company or similar, has a money interest. The difficulties in England and Wales have been clear and are significant. I cannot go into them in detail at this stage, but we have to be careful about that.

1154. Article 40, in my understanding, has not yet been brought into force. Article 41 of the 2003 Order says that the Legal Services Commission could not engage in litigation funding agreements. If we abandon article 41, it will mean that the Legal Services Commission will move towards becoming a provider. It means, then, that other third parties will become a provider. One has to be careful about what that could lead to in a small jurisdiction, and whether we get the situation that exists in England and Wales, where the cost of litigation became phenomenal. There are all sorts of difficulties. Most cases are genuine and successful. I am saying that, if those very few cases that are unsuccessful cost only 1% — £1 million to £2 million — of the £104 million legal aid budget, is it not a good idea to, instead of looking for an alternative approach through LFAs, maintain the current approach, which costs very little? That is the point that the Committee should look at.

1155. Mr McCartney: I have a couple of questions about the litigation funding agreements. I am reading here about pursuing money damage cases including personal injuries. What are the other types of money damage cases? Do those include medical negligence?

1156. Mr D Fee: Clinical negligence is a money damage case. The vast majority money damages are awarded for personal injury. However, if you are suing someone for crashing into the front wall of your house, for flood damage or for any damage to property, those are money damage cases, should you avail yourself of legal aid.

1157. Mr McCartney: So, this is not an attempt to open up access? There are people who do not take up a case because of the cost if they lose.

1158. Mr D Fee: LFAs could, arguably, give greater access to people who would not qualify for legal aid, although the Legal Services Commission's approach would simply be to cater for those who would qualify for such aid. There is a possible benefit, in that the LFAs would give access to people who do not qualify. I am not saying that one should argue totally against them; I think one to be careful about what they might open up. I go back to the point that, if 90% of the cases of those who have been injured and who cannot fund their own cases are successful and cost very little, would it not be better, if at all possible, to keep the current arrangement?

1159. Mr McCartney: I understand that, but are there occasions when people do not take cases because they cannot indemnify themselves against costs, and they walk away?

1160. Mr D Fee: Yes. The legal profession in Northern Ireland is such that, over a long number of years, in a very small legal service, the Bar, and solicitors in particular, deal with clients and their families. Those solicitors will proceed with litigation in the hope that it will be successful, and charge a small amount. In England, it is all front-loaded and costs an absolute fortune. Here, people try to keep the costs down, proceed towards the case, and try to settle the case and avoid court if at all possible. Our system works quite well in that way. A clinical negligence case costs a lot of money because a lot of experts are required. The funding of such a case can be difficult for a person who does not qualify for legal aid. That is one of the major areas of concern.

1161. Mr McCartney: Adrian addressed the issue with clause 85. There is a financial aspect, but the interests of justice must also be taken into account. Someone earning £35,000 could still be eligible in the interests of justice.

1162. Mr Colton: Yes; provided that is left in the hands of judges and that it is made clear.

1163. Mr McCartney: Is that why you would argue that that decision should be left with the judiciary?

1164. Mr Colton: Yes.

1165. Sir Reg Empey: Approximately how many individual cases are taken in a year? You made the point that it was roughly 1% of the total. Do we know how many cases we are talking about?

1166. Mr D Fee: In terms of civil litigation? I am not sure that I have access to that. I am sure that it is reported. The figures from the various publications talk about percentages, so I am not sure what the actual figures are.

1167. Sir Reg Empey: Just as a matter of interest, if it does come across your desk, you could let the Clerk know what that amounts to.

1168. Mr D Fee: Is it the total number of civil cases?

1169. Sir Reg Empey: I want to know the number of individuals. Out of that 1% or 2% of the legal aid budget, approximately how many people are affected?

1170. Mr D Fee: I am not sure if that is available. The Court Service may have it. It is not in any of the publications —

1171. Sir Reg Empey: Well, if anybody has it —

1172. Mr McNarry: It must be, if you have a figure of 1%. What is it 1% of?

1173. Sir Reg Empey: You were making the point that it is significant —

1174. Mr D Fee: It is 1% of £104 million. That is a published figure.

1175. Sir Reg Empey: I just wonder how many individual citizens are involved in that.

1176. Mr D Fee: It will certainly be a significant number of cases, but I do not have the actual figures. The Legal Services Commission will have the precise number of applications in any particular year from people who qualify for legal aid and have suffered injury. The 1% is 1% of the overall cost.

1177. Mr A Maginness: Have you been in negotiations with the Legal Services Commission or, indeed, the Department about LFAs? I thought that at an earlier stage the Department indicated that both the Bar and the Law Society were in favour of the proposal. If I am wrong about that, correct me.

1178. Mr D Fee: No, I am not saying that. In fact, I hope that we made it clear that, if it does give access, we are in favour of it. The caveat that we have is whether the difficulties and practicalities of dealing with it are fully appreciated. The other issue is whether there is any need for it if the cost is so little at the moment.

1179. Mr A Maginness: It is a small number of cases. You talked about the experience in England and Wales, and you mentioned success fees. Has that in any way inflated the price of litigation?

1180. Mr D Fee: It certainly has. There is a lot of criticism; the Jackson report and so on have been critical. The legal profession in Northern Ireland has a lot of concerns about success fees. I put it that way because I am sure that there are certain lawyers who would like success fees and who see them as an opportunity. In general, the legal profession has difficulties with them and fears and concerns about them. The idea of a success fee is that you bring a case and, if you are successful, you charge maybe another 50% in fees.

1181. Mr A Maginness: So it is a premium on top of the normal fee.

1182. Mr D Fee: People then perhaps pick a case that is likely to be successful and do not take the cases that are likely to be unsuccessful. They charge extra fees, and the cost of litigation, particularly to the defendants, is significantly increased. The overall cost of litigation goes up; that has been the problem in England and Wales.

1183. The Chairperson: Thank you very much for your presentation and for coming along.

1184. We move on to a briefing from Women's Aid Federation Northern Ireland on the key points and issues regarding the miscellaneous and supplementary legal aid provisions in the Bill.

1185. I welcome the team: Gillian Clifford, regional policy and information co-ordinator for Women's Aid Federation Northern Ireland; Patricia Lyness, management co-ordinator for Belfast and Lisburn Women's Aid; Noelle Collins, team leader for Belfast and Lisburn Women's Aid; and Sonya Lutton, deputy helpline manager. Ladies, you are very welcome. You have 10 minutes in which to outline your brief. There will then be 20 minutes of questions. I know that we digressed marginally earlier, but we made up for that in our own time in the session with the lawyers. However, I suspect that, if I were not as flexible with you, you would remind me of that.

1186. Ms Patricia Lyness (Women's Aid Federation Northern Ireland): Good afternoon, Chairman and members. On behalf of Women's Aid, I thank the Committee for the opportunity and invitation to give evidence today on two issues that are of great importance to the women and children who use our services across Northern Ireland and to the wider community. We want to talk about access to legal aid for women who have experienced domestic violence, specifically the cost of legal proceedings and of obtaining a non-molestation order. We also want to highlight the treatment of women as both victims and witnesses in legal proceedings involving domestic violence and to make recommendations in that regard. We will endeavour to respond to any of the Committee's questions or issues. The Chairperson has already introduced us, so I will skip the introductions.

1187. Women's Aid in Northern Ireland has over 35 years' experience of dealing with domestic violence and of providing and developing safety and support protection and safety services for women and their children. Domestic violence is one form of violence against women that occurs across the world. It is a crime and a violation of the most fundamental human rights: the right to live free from torture, violence and the threat of violence, and, indeed, the right to family life. Those principles are enshrined in European international human rights standards and conventions, of which the UK Government are signatories.

1188. Our work includes challenging the attitudes and beliefs that perpetuate domestic violence and promoting healthy and non-abusive relationships. Across our 10 local groups, we have 12 refuges providing a total of 300 bed spaces. In 2009-2010, over 1,000 women and almost 900 children sought refuge with Women's Aid. We also have a floating support service that supports and enables women to remain in their home, if it is safe to do so. Last year, that service dealt with almost 3,000 women and over 3,000 children. In 2009-2010, the 24-hour domestic violence helpline managed over 32,000 calls, which represents a 70% increase on the previous year.

1189. Women's Aid welcomes the Minister's victim-centric approach to the Department's ongoing review of the justice system and the proactive, positive and highly productive engagement that we have had with departmental officials, representatives from the Northern Ireland Legal Services Commission and others during the consultation process on a number of key issues.

1190. It is not our intention in this presentation to make generalisations about the conduct of the legal profession in its representation of women who have experienced domestic violence. Rather, we wish to illustrate the issues raised by the women with whom we work and the concerns that we as an organisation share. We fully acknowledge that there are numerous excellent examples of practice in the legal profession. Indeed, that has been our experience. However, we feel that best practice, particularly in family law, needs to be clearly established, identified and standardised across Northern Ireland.

1191. Non-molestation orders and access to civil legal aid have become matters of increasing concern to Women's Aid, particularly regarding the cost of obtaining such orders. Non-molestation orders come under legal aid advice and assistance legislation. The income threshold for that form of legal aid is extremely low. In 2010, a woman must have a disposable income of no more than £234 a week to receive legal aid for non-molestation order proceedings. The figure of £234 a week does not take into consideration mortgage or childcare payments. It is, however, inclusive of benefits, child maintenance payments and any income from part-time work. Through the exclusion of tax credits, a single mother working part time is brought just over the threshold of legal aid.

1192. In seeking a non-molestation order, the initial ex parte order can cost up to £400. Within two weeks, the pursuit of a full non-molestation order can cost a further £400, or considerably more, particularly if the order is contested by the respondent. Full orders are frequently contested, and, depending on the duration and complexity of the proceedings, it is not unusual for a contested order to cost in excess of £2,000. Our legal consultants have stated that, if the respondent has a criminal case pending that is linked to domestic violence, the respondent's legal representatives will frequently encourage the respondent to contest the full non-molestation order as a failure to do so may prejudice the outcome of the criminal case.

1193. For many women who are unable to access legal aid, those costs can be prohibitive and are an additional, unsustainable financial burden at a time of enormous fear and uncertainty. It is a source of particular concern to us that our legal advisers have highlighted that, in the vast majority of cases in which women have been asked to pay for a non-molestation order, they have decided not to pursue proceedings. We are currently attempting to quantify the information from the women with whom we work, and we will be happy to submit those findings to the Department and the Committee when they become available. Solicitors have reported to us that there are cases where financial constraints have forced a woman not to pursue an order and where they have felt strongly that there has been a clear and demonstrable risk to the safety of the woman and her children as a result of not doing so.

1194. It has been suggested that an alternative approach for women may be the pursuit of an injunction against harassment. Although we note that harassment orders have a much higher threshold for legal aid — currently a disposable income of £9,937 per annum, inclusive of mortgage, rates and childcare payments — we also note that, in cases of injunction against harassment, there is a strict adherence by courts to a policy that the complainant must be able to demonstrate that two recent incidents of harassment have occurred. In that context, it is also a matter of concern that women not resident with partners cannot obtain a non-molestation order, as resident boyfriends or partners are not considered to be an associated person for the purposes of an order. We are increasingly seeing young women reporting violent behaviour from partners, and it is essential that those young women are able to report that violence and seek legal protection at the earliest opportunity. They should not be forced to wait for a subsequent incident to occur. From a humanitarian and risk-management perspective, that is a highly dangerous practice. Similarly, to be in receipt of legal aid for an injunction against harassment, the applicant must demonstrate that the merits of bringing an injunction are satisfied.

1195. Although the breach of a non-molestation order constitutes a criminal act, Women's Aid is troubled by the apparently subjective nature of interpreting the breach of an order and the inconsistent arrest policy. The PSNI is charged with determining what constitutes a breach, and we would welcome clarification on its operational policy and guidelines for arrest in cases of breach of a non-molestation order. We fully support the key recommendations in the Criminal Justice Inspection Northern Ireland report on domestic violence and abuse in respect of decisions to arrest, specifically its recommendation that supervisors should be more proactive in reviewing the approach taken in domestic violence cases, especially where decisions not to make an arrest have been made.

1196. We also note that provision exists in the legislation for costs to be awarded in non-molestation order proceedings. However, costs are seldom awarded. Through more than three decades of work, Women's Aid has observed that financial abuse is often a characteristic of domestic violence. Indeed, perpetrators often utilise the legal system and processes to further abuse by intentionally prolonging legal proceedings to create financial hardship for the victim. That is particularly problematic when the perpetrator is in receipt of legal aid and the victim is not. We understand that the awarding of costs will be an additional burden on the legal aid fund. However, the awarding of costs in those cases, or a reduction of legal aid moneys paid, might well serve to prevent vexatious litigation or behaviour that is designed to frustrate the process. It may also serve to discourage unnecessary delay.

1197. Women's Aid continues to call for an immediate amendment to the legal aid rules and for an automatic right to be given to all victims of domestic violence to access legal aid and justice free of charge. It is our strong opinion that, as a minimum requirement, Northern Ireland should be brought in to line with existing provision in England and Wales. Since April 2007, the Legal Services Commission in England and Wales has been able to waive all eligibility limits —

1198. The Chairperson: I am sorry; I have to stop you there. Your time is up. We will have to leave it there.

1199. Mr McDevitt: I want clarity on a point. Clause 85 deals with a change to article 31 of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981. Is the current provision for non-molestation orders in article 31 of that Order?

1200. Ms Gillian Clifford (Women's Aid Federation Northern Ireland): I am not sure about that. Our understanding is that non-molestation orders rest with civil legal aid. That is one of our concerns. We thought that the Bill might have provided an opportunity to include provisions on legal aid.

1201. Mr McDevitt: It might be helpful to get clarification on that. Are you asking us to make positive amendments and introduce new elements to the legislation?

1202. Ms Clifford: Yes.

1203. Mr McDevitt: Your basic call is for an automatic right for all victims of domestic violence. Do you mean domestic violence or sexual assault?

1204. Ms Clifford: We want to include domestic violence and sexual violence, because women who experience domestic violence frequently experience sexual violence in that context. We would have welcomed an enabling power, and the Bill would have been an excellent opportunity to create that.

1205. Mr McDevitt: You are effectively looking for a possible new clause that will put in the Bill a power to provide free guaranteed access to justice for all people who allege that they have been a victim of sexual violence.

1206. Ms Clifford: Yes.

1207. The Chairperson: I am trying to get my head around your position on non-molestation orders. Are you more concerned with the lack of legal aid to impose those orders, or are you talking about a lack of consistency in the imposition of non-molestation orders?

1208. Ms Lyness: Cost is primarily the barrier for women who need a non-molestation order. The cost is prohibitive because of the threshold and because of all the factors that are taken into account.

1209. Ms Sonya Lutton (Women's Aid Federation Northern Ireland): A lot of women who work call the 24-hour domestic violence helpline and access other Women's Aid services. Because they work, they cannot get protection, and they do not have the same rights as those that are afforded to their counterparts in England and Wales. There are similar schemes in those jurisdictions where women can pay a contribution towards the costs of the case or can pay monthly. We looked at introducing that kind of scheme as well as at the waiving of fees.

1210. Ms Clifford: A number of solicitors have already set up payment plans to help women to do that. That is one reason why we want best practice to be explored and rolled out across Northern Ireland. We have major concerns about situations where, for example, working family tax credits will take a working single mum just over the threshold for legal aid. That affects a lot of women whom we deal with, and it is, to us, intolerable for a woman to be faced with having to balance her financial stability with her safety and security and that of her family.

1211. The Chairperson: The paper that you tabled is not definitive about that. Paragraph 7.10 says:

"However in England and Wales, women in domestic violence situations may not have to meet financial eligibility criteria".

1212. What does that mean?

1213. Ms Clifford: There is the capacity in England and Wales to —

1214. The Chairperson: Sorry to interrupt you. So, you are not saying that those women do not have to meet the criteria, rather that they may not have to.

1215. Ms Clifford: They may not have to. That is the existing position of the Legal Services Commission in England and Wales. There is capacity to take into consideration domestic violence, affordability and the income threshold and to make an adjudication based on that. However, similarly, there is a system in place there where, depending on the income threshold, a person can, if necessary, make repayments over time. However, people are entitled to legal aid and can repay based on their income.

1216. Mr McCartney: I want clarification on a number of points in your briefing document about non-molestation orders. Do you keep any figures on the amount of women who do not pursue those orders because of the legal aid aspect?

1217. Ms Lyness: That is one of the areas of work that we will be concentrating on to gather evidence and statistics.

1218. Mr McCartney: Do you have a process for doing that? There may be a lot of women who do not come forward.

1219. Ms Noelle Collins (Women's Aid Federation Northern Ireland): As part of a woman's support plan, we ask her that when we contact her. We worry about the women who call to solicitors, are quoted a price for a non-molestation order or an occupancy order, cannot afford it and return to abusive relationships.

1220. Mr McCartney: It would be good for us to have some idea of the numbers who currently take out those orders and their financial positions, particularly when we are considering clauses. It would be interesting to see whether the people who pursue them are those who have the ability to pay. If so, that would help to prove the point that you are making.

1221. Ms Clifford: It would be very helpful for us if solicitors were able to collate those figures, because not every woman who has experienced domestic violence will come to Women's Aid. It may well be that there are women who go into a solicitors' office only to be told that they cannot get legal aid. Those women will then walk away. We never encounter those women, so we are not getting the full picture.

1222. Mr McCartney: In a previous presentation, we were told that the limits were £11,000 for those without dependants and £12,500 for those with dependants. There does not seem to be anything built in to take account of the number of dependants or whether there is a mortgage involved.

1223. The Chairperson: Are you saying that when it comes to enforcement of non-molestation orders, the police are found wanting in many cases and that there is a continual inconsistency in their approach? Do you have any figures to support that, or is it an anecdotal observation?

1224. Ms Lyness: Are you talking about police action on breaches of those orders?

1225. The Chairperson: Yes, I am talking about the number of cases in which you felt that the police did not act correctly in enforcing them. Would those cases make up 50%, 20% or 10% of the total number?

1226. Ms Collins: We only have figures for the women that we have experience of. There are affected women who have never contacted Women's Aid, so we cannot put a number on them. However, we have certainly found the approach to breaches of orders to be inconsistent across the police areas.

1227. Ms Lyness: That is an area that we are looking at. The issue is also our capacity, because our main aim is to deliver services. However, those are the issues that are coming up for us, so we have to look at them within our capacity. We are also looking to the police to provide some of that information. If you consider the Criminal Justice Inspection report on domestic violence that was published yesterday, you can see that one of its recommendations was that the PSNI should consider monitoring cases in which no arrests have been made, including cases of breaches of orders. So, we need the police to help us to get robust figures. At the minute, what we are saying is anecdotal, but we have to look at how we can gather evidence to support that.

1228. The Chairperson: What is the figure for the incidence of domestic violence? Is it one incident every 21 minutes?

1229. Ms Clifford: Yes, and one crime every 53 minutes.

1230. The Chairperson: Are those the figures for Northern Ireland?

1231. Ms Lyness: Yes, there were over 9,000 crimes with a domestic motivation in 2009-2010.

1232. The Chairperson: Thank you very much for coming, ladies.

1233. The next item is a briefing by the Law Society. Again, the briefing will outline the key points and issues on the legal aid, miscellaneous and supplementary provisions clauses of the Bill and the withdrawal of the draft solicitor advocacy clauses. I welcome Brian Speers, who is president of the Law Society, Norville Connolly, who is senior vice-president, and Alan Hunter, who is the chief executive. You are very welcome. Mr Speers, I understand that you are just starting your term of office.

1234. Mr Brian Speers (Law Society of Northern Ireland): This is my one-week anniversary, which is a significant milestone.

1235. The Chairperson: We wish you well.

1236. Mr Speers: Thank you very much. I am still standing, or sitting, after one week.

1237. The Chairperson: You have 10 minutes. I said that to your other legal colleagues, but they did not pay much attention to me. [Laughter.]

1238. Mr Speers: I thank the Committee for allowing us to come along and make some observations. I will ask our chief executive to talk about the issues under review.

1239. Mr Alan Hunter (Law Society of Northern Ireland): First, I thank the Committee for inviting the society to make representations today, as the president indicated. The society has a specific interest in a number of proposals in the Bill, and I am aware that the Committee has our written statement, so I do not propose to restate those, given the time constraints. However, I will flag a number of the issues that we highlighted in our submission.

1240. Clauses 12 and 13 relate to the examination of an accused through an intermediary and are modelled on the Coroners and Justice Act 2009 in England and Wales. Our submission voices concerns that the provisions may lead to the prosecution of the mentally unfit. We acknowledged that the Bill contains important safeguards, including that a direction is given only when the court is satisfied that it is required to ensure that the accused receives a fair trial. However, we felt it important to bring that particular matter to your attention. The relationship between the intermediary and the defendant's legal team is a further issue that we highlight.

1241. Our submission mentions the view held by criminal law practitioners — and none of us here today is a criminal law practitioner — that defendants appearing via live links find it difficult to understand and participate in the proceedings. We highlight a particular concern with respect to those who are suffering from a mental disorder, and we note that the Bill contains important safeguards. However, we think that it is important to bring that to your attention today.

1242. As regards the diversionary factors and penalty notices set out in the Bill, we have highlighted to the Committee that those, effectively, operate outside the justice system, and we raised a number of concerns about how the scheme will work. We pointed to some safeguards that we think are required, particularly relating to the conditional caution, where we highlighted the need for appropriate safeguards.

1243. There are two significant proposals on legal aid in the Bill. First, there is the criminal legal aid means test. A copy of the executive summary of our submission to the Courts and Tribunals Service was annexed to our response to the Committee. Members will have noted that the society considers it appropriate that those whose earnings are sufficient and who are found guilty of crime should not benefit from legal aid. However, the prescribed financial limits will require scrutiny. It has already been brought to your attention, and I will bring it to your attention once again, that, in England and Wales, the prescribed levels are likely to remove from the scope of criminal legal aid such diverse groups as nurses, cleaners, teachers, firefighters, civil servants, and ambulance drivers. A further factor is that defendants are likely to be suspended from their work while on trial or awaiting trial.

1244. The society welcomes the removal of the prohibition on the Legal Services Commission funding legal services under litigation funding agreements. We are working with the commission in that context. However, we are keen to ensure that access to justice for all is guaranteed.

1245. The principal issue that we would like to raise is that of rights of audience for solicitor advocates. The Committee is aware that it was the intention that the Justice Bill would contain proposals for the extension of rights of audience for solicitor advocates in the higher courts and for them to appear in cases certified for counsel in the Magistrate's Court. This proposal was withdrawn prior to the consideration of the Bill due to a decision by the Attorney General that the Bill may be in breach of article 25 of the services directive. That came as a disappointment to the society and the Minister. The society was particularly surprised about the basis for the Attorney General's opinion, and we sought our own opinion on the matter. The Committee is aware of the opinion provided by Sir Sydney Kentridge QC. He stated that he could see no basis upon which the Attorney General had based his opinion. A copy of Sir Sydney's opinion has been provided to the Department, and we await its views. We also requested sight of the Attorney General's full opinion.

1246. The society considers that the current position is most unsatisfactory, leaving, as it does, members of the public in Northern Ireland without the choice of their solicitor or another solicitor as advocate in the higher courts. Members of the public in the South, England and Wales and Scotland all have that choice.

1247. We understand that, latterly, there have been discussions with the Minister and the Attorney General. We understand that the Minister is hopeful that clauses can be introduced to the Bill, by way of amendment, to give rights of audience to solicitors in the higher courts in accordance with the policy intention of the Minister and the Department. We are, therefore, hopeful of a satisfactory resolution.

1248. However, I invite the Committee to consider two points. First, given the short time available for passage of the Bill, particularly Committee Stage, this matter must not go by default. There must be sufficient liaison between the Committee and the Minister to ensure that, prior to completion of Committee Stage, there is a clear commitment to introduce the clauses by way of amendment. That will require the Minister to settle the clauses and consult with the Committee and the society to ensure that the clauses achieve the policy objective. We invite the Committee to ensure that, one way or the other, clauses are ready to be introduced, by way of amendment, in a timely fashion during the passage of the Bill.

1249. There is one final important point. We do not know what resource impact assessment has been carried out on the measures to be introduced by the Bill. The Bill will create new administration. Has that been costed, and have funds been set aside to deliver it? There will be a legal aid impact, new cases, new offences, a need for new legal aid defence certificates and an inevitable rise in legal aid spend. We query whether that is provided for in the estimates and funds that have been set aside to meet those costs. Those are important questions.

1250. We are happy to answer any questions.

1251. Mr McDevitt: I wish to pick up on the point about the solicitor advocate. The introduction of the clause, as originally drafted, would have been subject to regulation. A series of rules would have been formulated. How does the society feel about the nature of regulation that will be required to ensure that standards are not compromised in any way while solicitors are given rights of audience?

1252. Mr Norville Connolly (Law Society of Northern Ireland): We feel that the highest standards should be maintained. In anticipation of being granted solicitor advocacy rights, our council has already had the debate. We passed a proposal that we will have regulations to allow two major policy changes. One is that a client who has the possibility of using the solicitor advocate will be advised that there is a choice of advocate. That choice will be explained, and it will also be explained that, if a person selects an advocate, that advocate will earn higher fees as a result being so employed.

1253. Our council's second policy change is that each solicitor will keep a detailed note of the type of advice that he has given to the client. That will ensure that it is clear and transparent that advice has been given on higher fees and choice. That goes even further than what happens in England and Wales or Scotland. We want to keep the standard as high as possible.

1254. Mr McDevitt: We will be looking only at enabling legislation at this stage, of course.

1255. Mr Connolly: Yes; but we will obviously pass the regulations after that.

1256. Mr McDevitt: I note the Law Society's support for LFAs. I do not know whether you heard Mr Fee's evidence earlier. He expressed support in principle but raised concern about the law of unintended consequences. What is your opinion on that? Do you see a potential risk or downside with LFAs in that you could end up denying access to people who may have had it otherwise?

1257. Mr Brian Speers (Law Society of Northern Ireland): We are more accepting than the position that Mr Fee outlined. We see that alternatives need to be explored. Indeed, we are engaging in an exploration of alternatives that may achieve the goal of providing access to justice for predominantly civil claims in which money damages are pursued.

1258. We also see that there is a need to consider the administrative costs of that within the Legal Services Commission. At this stage, it is a matter of remaining in active discussions with the Legal Services Commission, but being broadly in support of the principle of exploring alternatives to the current arrangements.

1259. Mr McDevitt: For clarity, do you have an objection to clause 90 as it stands?

1260. Mr Speers: No. We do not.

1261. Mr Connolly responded to the point about the solicitor advocacy. I just want to add that, in order to be a solicitor advocate, a rigorous and high-quality course is offered. As Mr Connolly said, we are anxious to ensure that there is a quality of service provided. We are extremely confident that the solicitor members will be well able to meet any quality standards and that the additional training that we have set in place will address any reasonable concerns about quality of delivery of advocacy services.

1262. The Chairperson: What do you say, Mr Hunter, to those who say that the lack of access to justice, if legal aid is not available, is overplayed? I have heard it said that that is overdone.

1263. Mr Hunter: I suppose, Mr Chairman, I might say a very great deal, but I will try to be succinct.

1264. Access to justice is not an optional extra for the state. It is a foundation of the state and an emanation of it. Secondly, it is important, if there is to be equality under the law, that people have recourse to enforce their rights or to defend themselves against prosecutions or actions brought by the state whether or not they have means. Therefore, it is ultimately a key requirement of the state to ensure that people have access to the courts, whether or not they have means. Although it may not be particularly popular at any time, it underpins society, and says a good deal about the type of society and state that people want to live in and want to have their rights respected in.

1265. The Chairperson: So, you defend it to the last?

1266. Mr Hunter: Yes. Absolutely.

1267. Mr Givan: I think all of us around the table agree that access to justice is vitally important, but the level of representation is in question. The question is about how much legal representation someone should be entitled to and how much should the state pay for. Access to justice is very important. Some would say that, compared with other parts of the United Kingdom and beyond, we have a gold-plated version.

1268. What do you say to those who say that, when a client is granted legal aid, the individual members of the legal profession who represent that client ensure that the case goes on to maximise the fees that they can receive? I have heard the accusation that those in the legal profession deliberately attempt to ensure that they receive the maximum amount, once the client is deemed eligible for legal aid.

1269. Mr Speers: You have to remember that, when a solicitor engages with a client, he is obliged to do his best for the client, pursue their remedies, argue points and make representations on the client's behalf. If, in your suggestion, there is any sense that someone should do half a job, rather than all of it, we must reject that. Professional conduct rules say that we must act in the best interests of the client and pursue their interests ahead of our own. As president of the Law Society, that seems to me to be well worth emphasising at all times. That is what our members are expected to do.

1270. I know the point you are making. It is difficult without looking at individual cases, but, when legal aid is granted, there are other controls. The courts can intervene and case-manage the process, so I do not think it is a by-ball for people to exploit the system to the maximum in the way you suggest. I support what the chief executive said, namely, that the entitlement for equality of arms and to pursue rights is a very important feature of civilised democracy.

1271. The Chairperson: Mr Speers, do you accept that a much more efficient and practical way to do it is to establish an upper limit on an case, irrespective of the number of times it goes in and out of court, and that it is it, full stop? The barristers and lawyers can then win 100 times if they wish, but the legal bill would never change. Would that be an efficient way to do it?

1272. Mr Hunter: In principle, the society works on a basis of fixed standard fees in a number of areas. Certainly, much of the recent negotiations around fees have been on the basis of trying to identify a reasonable fixed fee for a particular case, but elements of a case can be unpredictable, and circumstances can arise. For example, the defence's responsibility might be how the prosecution has conducted a case, or there may be other circumstances that arise that need to be considered, so there is always a need for some exceptionality and provision to deal with those exceptional circumstances. However, yes, the society has been working on the basis of seeking to establish a set of fees that would apply to certain types of proceedings, and that has been the basis of the negotiations.

1273. Mr McCartney: I have a couple of points for clarification. Your submission states that levels of eligibility must be set appropriately. Have you put forward any suggestions or is that just a wide —

1274. Mr Hunter: Yes, it is a wide statement. We have not put forward any suggestions, but we have done some research and looked at the standards set in England. I noted in my presentation, with some alarm, the types of people who would be excluded, and I think it is important that there is proportionality in how those rules are brought forward, and that regard is given to the equality of arms. The Public Prosecution Service (PPS) will have resources and will have a series of other agencies behind it providing resources, so, it will be important that there is a proportionate and acceptable response brought forward. We will have an opportunity to discuss that in due course.

1275. I noted in particular the point about negative resolution. I support that, where these proposals are being brought forward that are going to have such a major impact, they should be by way of affirmative rather than negative resolution.

1276. Mr McCartney: The next paragraph of your statement refers to defence cost orders and says that they will be rolled-out in Magistrate's Court first. Have you been told that?

1277. Mr Hunter: That is what we understand the position to be. However, once they are in place, I suppose it is for the Department to decide as and when it will roll them out. Again, I think we are looking at the issues of proportionality and equality of arms, and the impact on people's lives generally and in the long term.

1278. Mr McCartney: What is the average cost in a Magistrate's Court compared to those in a Crown Court?

1279. Mr Hunter: I do not have that information. May I write to you and give you that detail?

1280. Mr McCartney: I sat this without prejudice: if there was a sense that people were getting legal aid who should not be, it would be more in the high profile cases, which would be in the Crown Court rather than the Magistrate's Court. Do you have an opinion on that?

1281. Mr Connolly: There are set fees for solicitors appearing in the Magistrate's Courts. For a straightforward plea, it is £290, and, if there were a contest, I think it is around £500. It does not make any difference, as the Chairman said, how many times the case is adjourned. Those have been in place only for around a year and three months, and they appear to be working quite well.

1282. Mr McCartney: The headline would not be defence costs of around £290 or £500. Rather, it would be about a big case that costs whatever amount and the fact that the individual concerned may have all sorts of property and so on.

1283. Mr Connolly: To add to what the chief executive said: the weakness is when the prosecution withholds evidence, which it does quite often. If there is a set fee, it is very difficult for the solicitor to do the preparatory work required. A huge amount of preliminary work is done prior to the case's first appearance in court. However, if there is a set fee, no payment is given for all the investigation work that is done for serious cases. There may, therefore, be miscarriages of justice, unless suitable exceptionality clauses are added to the set fees. In principle, set fees can work very well, and that is what all sides are moving towards.

1284. Mr McCartney: Where should justice standards be tested in granting legal aid? Should the responsibility remain with the judiciary or be given to the Legal Services Commission?

1285. Mr Connolly: As we said before, the difficulty is that the Legal Services Commission is driven by budgets. However, this issue, which affects everyone in the community, is about ensuring that justice is carried out regardless of budgets. We would not be happy if such decisions were taken by the commission, because it is driven by only budgets.

1286. Mr McCartney: You think that it should remain with the status quo, then?

1287. Mr Connolly: Yes.

1288. The Chairperson: We know that you feel strongly about solicitor advocacy, Mr Hunter, and that you have sought legal opinion about the issue from elsewhere. Have you had any recent correspondence from the Minister about how he feels about it of late?

1289. Mr Hunter: I have been in correspondence with departmental officials, and I understand that a meeting was held between the Attorney General, the Minister and officials. I also understand that some proposals may be coming forward for consideration. I am sure that the departmental officials can confirm whether that position is factually correct.

1290. Our concerns are two-fold. First, given how late in the day the initial objection came to everyone's attention, the issue will be resolved only if it is brought forward in a timely way to allow everyone to consider the situation properly and, therefore, ensure that the proposed new clauses are included in the Bill. Secondly, the policy objective needs to be achieved through the new model, whatever that is. Of course, we will not know whether that is achievable until we see the proposed new clauses. That is our understanding. I may or may not be corrected about the positions that were set out in the discussions between the Department, the Minister and the Attorney General. However, that is my clear impression.

1291. The Chairperson: You say that you understand that the Department may be coming forward with some proposals. Do you reckon that you will agree with those proposals?

1292. Mr Hunter: Our difficulty is that we have absolutely no detail, even in broad-brush terms, about those proposals. I am, therefore, not in a position to comment on them. I very much wish that I was in such a position, but I am not. We need to see the proposals, so that we can comment on them as quickly as possible.

1293. The Chairperson: On 26 November, the Minister sent me a letter about the issue. In the last paragraph, he states that he has since shared the opinion — the one that you shared with him — with the Attorney General and is meeting him to discuss the solicitor advocacy issue, which he hopes to table as an amendment. Is that the sort of news that you are looking for?

1294. Mr Hunter: Yes. We hope that the Minister will table an appropriate and adequate amendment.

1295. The Chairperson: That is very diplomatic, Mr Hunter. Well done.

1296. Mr A Maginness: Clause 90 removes the prohibition on the commission funding legal services under litigation funding agreements. What is the net effect of that? It removes prohibition; therefore, it opens up alternative funding methods. Does it necessarily remove the idea or the position of funding clients directly under the current legal aid system? Do you envisage a situation in which you had a dual system: in other words, you could have litigation funding agreements and the present position?

1297. Mr Hunter: Yes. As I understand it, the clause's objective is to remove the prohibition of any public money being used to start up, run or underwrite a litigation funding agreement. However, that would not necessarily require such an agreement to be in place, nor preclude any other type of funding. I want to make another point about that to aid the Committee's consideration, which is that those types of agreements would, of course, extend beyond those who are eligible for legal aid. Therefore, those types of agreements might aid people who do not qualify for legal aid at present and who are thereby potentially occasionally unable to bring their cases forward in some circumstances.

1298. Mr A Maginness: They do not qualify for legal aid because they are outside the financial limit?

1299. Mr Hunter: Precisely.

1300. Mr A Maginness: There has been a lot criticism of the situation in England and Wales. Is there any way to avoid the problems that have arisen there, particularly with regard to success fees?

1301. Mr Hunter: I am sure that you are aware of the Jackson report, which looked at that topic. Part of the painful experience in England and Wales when legal aid for personal injury actions and money damages was removed was the enormous amount of satellite litigation around trying to work out what would be an appropriate success fee, what was reasonable and what was not. The Jackson report sets out good lessons from the experience of England and Wales, which I am sure that we would all want to take into account in developing a suitable system for this jurisdiction.

1302. Mr A Maginness: You do not suggest that we introduce the English and Welsh systems here?

1303. Mr Hunter: At present, we have a working group with the Legal Services Commission, as does the Bar, to look at various options, of which litigation funding agreements are one. I do not think that those discussions are at the stage yet where anything has been ruled in or out. Whether this goes through is very much a precursor to any final decision.

1304. Mr A Maginness: I want to ask about the comment that was made about lawyers spinning out trials or legal processes. Is there any evidence to sustain that particular suggestion? Is it remunerative for lawyers in this jurisdiction to, as it were, spin out trials — pre-trial hearings or things of that nature, I presume. What is your experience of that?

1305. Mr Speers: I have a particular interest in the resolution of disputes. It is fair to say that there has been some encouragement from remarks that have been made by the Lord Chief Justice and the Minister that, perhaps, a focus should be on early resolution. I am simply comfortable with the fact that solicitors act in their clients' best interests. In many cases, that will be to advocate strongly, to litigate and to have adjudication on the issues. In some cases, however, it is in their clients' interests to explore more effective resolution options. Certainly, during my year as president, we will bring forward initiatives to increase resolution-type work through mediation training and through solicitors becoming involved as resolvers of disputes, which, traditionally, was often a solicitor's role as a counsellor and adviser as well as a representative and champion. There is much to be explored in looking at ways to satisfy the court and litigation process that all attempts have been made to resolve disputes before they get too far down the line.

1306. In answer to your question: there are checks and balances. It is easy to say that lawyers are spinning it out, but in reality, you often have determined and energetic clients who want particular points to be espoused. In doing that, lawyers are simply representing their clients' instructions.

1307. The Chairperson: We are marginally over our time for this session, but Sir Reg wanted to ask a question.

1308. Sir Reg Empey: Have you met and consulted your colleagues at the Bar on the legislation? I know that the situation can sometimes be complex, but I wondered whether there had been any co-operation on the matter.

1309. Mr Speers: There is generally co-operation and frequent contact. However, the Law Society's submission was compiled only by us and is not the result of any joint approach. That can be seen in the differences of emphasis this afternoon.

1310. Sir Reg Empey: I just wondered whether you had consulted or talked to the Bar. I also wondered whether you had attempted to marry your different views together. However, perhaps that is not the case.

1311. Mr Speers: Not yet.

1312. The Chairperson: Gentlemen, we must stop there. Thank you very much. If you wish to take a seat in the Public Gallery to listen to the officials, you are welcome to do so.

1313. We welcome back Gareth Johnston, Robert Crawford, Geraldine Fee and Laurene McAlpine. The officials will respond to the issues that were raised during today's briefings. I understand that Mr Johnston wants to raise a point about clause 95. Will you do that at the beginning and we will take it from there?

1314. Ms G Fee: Thank you, Mr Chairman. It was actually me who wanted to raise a point. I want to correct an answer that I gave to Mr McDevitt when he asked me about the level of scrutiny that would apply to the rules that would be made to give effect to clause 95. There are two sets of rules that will be made to give effect to clause 95. The family proceedings rules that will apply in the High Court and the County Court will be subject to negative resolution, but the rules that will apply in the Magistrate's Court will be made in accordance with the Magistrate's Courts rules procedures. Those are not subject to any formal scrutiny in the Assembly, but will be subject to the scrutiny of the Justice Committee. I had rolled those into one before, and I wanted to differentiate.

1315. Mr McDevitt: That is helpful, and I thank Ms Fee for that. I am relatively new to this game, so perhaps the Committee Clerk could tell us about the rules that are made in the Magistrate's Court? They are not subject to any formal scrutiny, yet they are scrutinised by the Committee, so what it the status?

1316. The Committee Clerk: The officials may want to help me out. My understanding is that the Committee will be consulted on what will be in the Magistrate's Court rules, but those rules will not actually be laid in the Assembly. That procedure also applies to another type of court rule.

1317. Ms G Fee: That is correct. Court rules are made for the various court tiers and most of them are subject to negative resolution. However, County Court rules and Magistrate's Court rules are not subject to any Assembly procedure, and we have liaised with the Committee Clerk and the Committee to look at how those procedures dock in to the Assembly procedures. We plan to give the Committee access to any draft rules and members could chose whether they want briefings from officials on those.

1318. Mr McDevitt: For clarification: is it correct to say that, if the Committee was unhappy with the draft rules, it would be powerless to do anything about them and that we would simply be consulted?

1319. Ms G Fee: If the Committee was unhappy, I hope that the Department would take the issues away, apprise the rules committees of those concerns and reach some form of accommodation.

1320. Mr McDevitt: Does the Minister have to approve all those rules?

1321. Ms G Fee: There are different enabling powers for different court rules and for the different tiers. In the case of the High Court and the County Court, the Minister allows the rules. In the case of the Magistrate's Courts, he is simply a consultee. The rule-making power is vested in the rules committee. It is quite complicated. We provided a submission to the Committee previously, but we can reissue that to you if it would be helpful.

1322. The Chairperson: The rules of the Magistrate's Courts and the County Court are not subject to Assembly procedures. Is that correct?

1323. Ms G Fee: Yes.

1324. The Chairperson: Why are they not?

1325. Ms G Fee: I suppose that it was a continuation of the procedure that applied pre-devolution in Westminster. They were not subject to any procedure at Westminster, so it did not follow through that the rules would be subject to Assembly procedure.

1326. The Chairperson: I may be asking a stupid question, but why not? What was the thinking behind it? What was the rationale?

1327. Ms G Fee: As I understand it, the rationale is that those are procedural and technical rules. It was thought that there would be a sufficient level of scrutiny of the rules through consultation with the Lord Chief Justice and the Minister. It was a historical issue. During the process of moving across to the devolved arrangements, it was decided to preserve the arrangements.

1328. The Chairperson: Do you think that the rules should be subject to Assembly procedure?

1329. Mr Johnston: Curiously enough, there is quite a wide range of bodies that have legislative powers to make various sorts of rules for straightforward procedural matters. I am not sure that they would come before the Committee as standard. The one body that always springs to mind is the Pharmaceutical Society, which has power to make certain rules that apply to how its members are regulated. The rules committees are just a couple of bodies on that whole list. It is just that what they are doing is about implementation. When legislation is changed and goes through the Assembly, different bodies have to implement it. The police implement it in their way, as does the Public Prosecution Service. The Courts and Tribunals Service implements legislation through those rules. In many ways, I would compare it with the method of implementation of the other criminal justice bodies.

1330. Ms G Fee: I will just add that most of the rules are technical and procedural in nature and deal with how an application should be made and what time limits will apply. Sometimes, they touch on more substantive issues, such as, in this particular instance, the sharing of information. The secretariat and the Department have been very cognisant of that, and this will be subject to a full public consultation exercise so that the views of stakeholders are taken into account. We will come back to the Committee in order that the details of the rules are considered before we even get to the point of having a draft instrument.

1331. Mr McDevitt: I take the point. There would be very good reasons for devolving power to make rules for a lot of practical procedural issues. However, this is a substantial issue. It is a question of whether one is or is not in contempt of court, so it is an important point of law. Two issues arise; I am not sure whether this is a matter for the Committee, but I will express a personal opinion. I am not sure that it is particularly consistent with the separation of powers that the Minister is not the final decision-maker in a situation in which the law is going to put someone in contempt of law or not. Following on, if the Minister is not even the decision-maker as the executive arm of the legislature and if this Committee and this institution would have no legislative role, that seems to me to be a matter worthy of further debate, to put it diplomatically, at the very least.

1332. Ms G Fee: The rules committee make the rules under the statutory powers that were conferred on them previously by the Westminster Parliament, and now, under the devolved arrangements, they will have carried through. I suppose, constitutionally, at some point, that was considered by elected representatives to be an appropriate conferral of the powers. I am not sure that I can comment at this juncture on the wider constitutional point. However, in order to enable scrutiny for the Committee, we have been liaising with the Committee Clerk to provide a forward look at all rules that will go to the rules committees. That will provide the Committee with the opportunity to say that it wants to see that information and to be consulted. In turn, that will ensure an appropriate level of engagement with the Committee in recognition of its role.

1333. Mr McDevitt: I have made my point.

1334. The Chairperson: Mr Johnston, will you respond to the issues that have been raised by the different groups?

1335. Mr Johnston: I will ask Robert to respond to the points on legal aid, which comprised the majority of points. There were also some issues on domestic violence.

1336. Mr Crawford: I will deal first with the points on means testing that were raised under section 85, which occupied quite a lot of the discussion. The resources for legal aid are limited. We spent £104 million last year and £104 million this year on a budget of £85 million. Therefore, we are, essentially, looking at every area where we might be able to save a few pounds, and that is largely the justification for introducing a financial fixed means test for criminal legal aid.

1337. We agree that all the points made by the Law Society and the Bar need very careful analysis, and I hope that my earlier presentation reassured the Committee that we will do that and will come back to the Committee with the research that will be available later this month. Furthermore, if the Committee wishes, we will give it a flavour of our plan and analysis on that issue before the consultation that will need to take place on any proposals before they come to the Committee as legislation.

1338. Therefore, we will look at all the points that have been raised. They are not, for the most part, new points. The issues on the impact on access to justice and the fact that some people may not get proper representation have all been raised, and we will consider them. However, at this stage, we are looking at introducing an enabling power rather than the detail. We still think that it is worthwhile to have the enabling power in place. If we can find a way to resolve a lot of the issues satisfactorily, we may well want to proceed to make further, more detailed proposals. However, we do not assume that we will be able to solve them satisfactorily. We will need to look at them in detail.

1339. A point was made about the litigation funding agreement. Again, I stress the point about resources. It is a very small area of legal aid funding, because it is given a low priority by the Legal Services Commission. I want to correct one point about who makes the judgement. We are changing nothing to do with the interests of justice test in criminal legal aid. That will stay with the judge, and the means test will not impact on that at all. The Legal Services Commission will not make the means test judgement in criminal legal aid cases, but it will carry out the assessment or will, perhaps, ensure that the assessment is carried out by others. The applicant will put in a lot of personal financial detail, but, ultimately, the granting of legal aid will remain with the judge and those two tests will be a matter for the judge.

1340. Sir Reg Empey: That seems to be in conflict with your earlier comments. We were quite clearly advised that it has been recommended that the judge will continue in that role and that the court will determine whether legal aid is granted. However, you are now saying that there will be an assessment.

1341. Mr Crawford: I think it is in the language. If a fixed means test is put in place, it will not be discretionary. If a person has income or assets that take him or her outside eligibility criteria, the judge will have no choice but to find that the means test has not been met. However, it is still the judge's final decision. I am not playing with words, but there would be no subjective assessment by the Legal Services Commission on a fixed means test — it would either be met or not met. The point that the legal representatives made was that, at the moment, the judge makes a subjective assessment on whether the defendant has insufficient means. That subjective assessment would go. It would not be open to the judge to say,

"This person has more funds than would make them eligible for legal aid, but I am going to ignore that."

1342. Sir Reg Empey: Are there not circumstances where a judge might feel that the interests of justice are better served by the provision of legal aid? Is the discretion of the judge being restricted?

1343. Mr Crawford: There is a limiting of the discretion of the judge in the sense that a financial means test would have to be applied and the judge would not have the discretion to waive it.

1344. Sir Reg Empey: That is significant.

1345. Mr Crawford: It is significant, and I am not taking away from what has been said. However, it does not move the subjective assessment to the Legal Services Commission.

1346. Mr McCartney: Will the interests of justice overrule the means test?

1347. Mr Crawford: No. Both tests will have to be met. That is why it is so important to find a way to get it right so that there is not a big impact on access to justice. If a financial means test rules people out, they are out and that is it, even if, in the interests of justice, the judge felt otherwise.

1348. Mr McCartney: That nearly renders the interests of justice test of no consequence.

1349. Mr Crawford: It does, because a person can still be ruled out in the interests of justice test, even if they are eligible financially. There are two separate tests, and one is not greater than the other. However, I confirm the importance of —

1350. Mr McCartney: I know what you are saying exactly. I would have assumed, wrongly, that the interests of justice test would have overruled the means test.

1351. Mr Crawford: It is not that you can get in if only one test is satisfied. The rationale behind all that is to look at whether there is a way of trimming the cost of legal aid. However, we take fully on board the concerns that have been expressed, and we want to make sure that we try to address them.

1352. Mr McDevitt: Mr Crawford, I thank you for your frankness, because this is a very important point. Given that, do you not think that, at the very least, we should be considering having this enacted by the affirmative resolution procedure rather than the negative resolution procedure? It is the sort of point that will need to be debated and considered further by legislators, even if we were to accept the clauses.

1353. Mr Crawford: It will be debated further. The difference between negative resolution procedure and affirmative resolution procedure is that, in the affirmative resolution procedure, provisions can be changed by the Assembly. It does not mean that, under negative resolution procedure, the Assembly does not debate or discuss them.

1354. Mr McDevitt: We have done a lot of procedural stuff, and the difference between the two is substantial. We do not debate regulations under negative resolution procedure unless we pray against them. So, we would debate them then, but that is only because we have prayed against them.

1355. Mr Crawford: My point is that, before we even get to that stage, we would come to the Committee with draft proposals for public consultation, and we would not go to public consultation unless the Committee is happy with them.

1356. Mr McDevitt: We may just take a Committee view on that. Surely, given the substance of this, if you are defending clause 85 as it stands, it is in your interests to defend it to be enacted by affirmative resolution so as to ensure that there is the maximum opportunity for future scrutiny in the fullest parliamentary sense.

1357. Mr Crawford: If the Committee were to recommend that, I am sure that the Department would look at it. Having come before the Committee on other matters, I, personally, do not feel that there has been any lack of scrutiny. I would get the same questioning whether negative resolution procedure or affirmative resolution procedure is adopted.

1358. I want to say a bit about the litigation funding agreement. The access to justice review is under way, and it will look at alternatives to money damages legal aid. It is not a case of having either money damages in legal aid or the litigation funding agreement. That point was picked up at the end of the Law Society's presentation. However, there may well be other areas and other ways of doing bits of that kind of work. For example, if a state agency is involved in a medical negligence case against a hospital, there may be a way of putting in a procedure that does not go near a court.

1359. The issue of criminal injuries was mentioned earlier. That system operates in such a way that there are no legal fees at all. A solicitor will ask an applicant in a criminal injury case to sign upfront that he will hand over an amount — usually 15% — of the claim. That is not a part of the scheme, but that is how the arrangement is made, because a free service is provided by Victim Support for people making criminal injuries claims.

1360. In a case where the action is against a state body, it may well be possible to put in place arrangements that do not need legal aid at all. Proper support and advice may be funded separately and at a lower cost. That is one of the areas that the access to justice review will look at. We will have an interim report on that at the end of February. Therefore, there is a point to be made there.

1361. If, however, we have a limited budget, money damages will be seen as a lower priority by the Legal Services Commission. That is a certainty because there are other areas — indeed, Women's Aid mentioned some them — that will be seen as a higher priority: those that involve safety, for example. That will be a consequence of having limited funds available.

1362. I would like to offer some reassurance on civil legal aid. In Northern Ireland, based on 2008 figures, 44% of the population are eligible under the current means test arrangements. In England and Wales, that figure is 29%, and that reflects the levels of deprivation and lower incomes in Northern Ireland.

1363. The Chairperson: But it represents only 1% of the legal aid bill.

1364. Mr Crawford: I do not have the figures in front of me to confirm that. Perhaps we could write to the Committee with a breakdown of where that funding falls.

1365. The Chairperson: That would be useful.

1366. Sir Reg Empey: I would be very interested to know how many individuals are involved on average, just to see the scale of what we are talking about, because it is very hard for us to judge. We are told that it is between 1% and 2% of the total bill, but we do not know what that represents in terms of individuals.

1367. Mr Crawford: We should be able to provide that breakdown from the Legal Services Commission. If members have questions about that area, we are happy to take them. If not, I will move on to the issues raised by Women's Aid.

1368. The Chairperson: Do any members have any other points around the legal aid issues? I think that everyone is content.

1369. Mr Crawford: I think that the Women's Aid representatives were actually being quite careful and discreet in their presentation to you, because we have had some discussions with them about this issue, and members may recall that, during the debate on the Justice Bill on 2 November, the Minister indicated that he hoped to bring forward proposals that would be of assistance.

1370. I will give you a little bit of detail on what we think may be possible, although I must stress that we do not have the Minister's final approval yet, nor are we absolutely there yet in confirming that it will work. However, we are looking at a system whereby, for non-molestation orders and related actions, the person who is at risk would be able to access legal aid automatically right away. However, there is a question of a contribution that might come into play at a later stage. In our discussions with Women's Aid, it felt that that would largely solve the problem that it is concerned about.

1371. First, if the actual legal aid costs were ever applied, it would be done in a way that was sensitive to the needs of the individual in that the costs could be paid in stages, etc. Secondly, because legal aid rates are far lower than would be asked for outside that system, the costs would be very much lower anyway. The third point is that the contribution scale for that level of funding is actually quite low. The contributions are not massive, and I think that we would want to work with Women's Aid to ensure that we get the outcome that it wants and that we want, namely that people who are at risk are not put off applying to a court for an order by the possible high cost of legal assistance. We believe that that can possibly be done by ministerial direction. We have identified a power in the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981. We need to do a little bit more checking on that, but, if we can do it that way, I think that we would recommend to the Minister that we do that to get it in place quickly.

1372. Sir Reg Empey: Would that include what is often a feature in these cases: the need to go back to court to deal with the enforcement side? That is almost as critical.

1373. Mr Crawford: We would want to include that in the direction. A legal aid certificate would still be issued by the Legal Services Commission. In those situations, the legal aid certificate could state that legal aid would follow through to any further orders. There would be some limits, but the point that you are making is valid in that we would not want the person to have to come back with a new application every time. Women's Aid has said to us that non-molestation orders are frequently challenged and that there is a need to go further. One of the comforts of getting people into the legal aid system and getting that certificate in place at the outset is that, if an order is challenged, they know that they will be able to contest it.

1374. The Chairperson: Mr Crawford, will you be bringing the proposed amendments to this Committee?

1375. Mr Crawford: If we can do it more quickly without legislation, there would be no formal Committee procedure, but we would be quite happy to come back and brief the Committee. I am sure that the Minister would want us to come and brief the Committee on that if you would find it helpful. I should say that the Legal Services Commission is examining this area anyway. It is under review. This idea came from the Legal Services Commission, and we have worked together on it.

1376. The Women's Aid representatives talked about inserting a clause in the Bill. What they want, which is a complete waiver and no contributions, can be achieved through subordinate legislation. It does not require primary legislation, and it could be done by amending the existing legislation. Another way of doing it, depending on the Committee's agreement, is to move the non-molestation order application into criminal legal aid. There is currently no means test, but, if we were to look at introducing one in the future, non-molestation orders could be excluded from that. That would have an instant effect, because there is a fixed means test for civil legal aid, and that is their problem.

1377. Mr McDevitt: I am trying to get to the bottom of where your mind is, Mr Crawford. It sounds to me that you are quite determined to meet these ladies' requirements. Is it the policy objective to meet the basic requirement, which is that women presenting as victims of domestic abuse would have an absolute right to free access to justice?

1378. Mr Crawford: It is not quite in those terms. Free access to justice would be available, but there might be a contribution at a later stage if someone's means were found to be fairly significant. It would still be considerably less than they would have to pay outside the legal aid system. In the longer term, the Legal Services Commission, which is the civil legal aid policy lead, will consider the issue of completely free access.

1379. Mr McDevitt: Am I hearing you right that your advice to us is that this is not the right place to try to have that debate now?

1380. Mr Crawford: It is unnecessary to put it in primary legislation anyway. There will be an opportunity to put it in subordinate legislation if there is a desire to do that. I do not want to speak for Women's Aid, but I think that it is quite happy with the proposals that we have made as an interim measure. It will also give us the opportunity to see whether they are working and whether any other changes need to be made.

1381. Mr Johnston: Women's Aid had a number of thoughts on how the system could cater better for women who are going through domestic violence proceedings. Only yesterday, the Criminal Justice Inspection report on domestic violence and abuse was published, and I am sure that the Committee will want to look at that in due course. A specific point was made regarding concerns about what constitutes a breach of a domestic violence non-molestation order and about the police taking a common approach to that across Northern Ireland.

1382. Particular reference was made to the first recommendation in the Criminal Justice Inspection report, which is about PSNI supervisors proactively monitoring the approach to domestic violence cases to ensure consistency of approach. Yesterday, the police welcomed the recommendations in the report. They said that they are currently in the process of exploring the operational outworkings of the recommendations but that they are committed to working closely with victims. If the Committee wants a fuller briefing on the report, the Department will be in a position to provide it.

1383. There was also a concern that proceedings provided opportunities for perpetrators to perhaps further the abuse, and I will mention two specific points on that. First, there is concern on the part of the organisations that represent victims of domestic and sexual violence about questioning by barristers during cross-examination in court. In the sexual violence action plan, we are committed to exploring that matter with the judiciary. There has been some initial contact, and there will be further discussions on that in the new year.

1384. Secondly, victims have been concerned that, in preliminary proceedings, which are called committal proceedings, for sex cases in particular they might be exposed to quite rigorous questioning that is then, in a sense, repeated at the trial. We are looking at reforms to the committal proceedings, and we hope to issue a consultation paper next year.

1385. In addition to the points on legal aid and on solicitor advocates, which I will come to in a moment, the representatives of the Law Society made a few comments on live links. That was really just by way of confirming that they had raised issues and were exploring them with the Department. We can certainly address with them the points made in their submission.

1386. The Law Society mentioned alternatives to prosecution, which we will discuss with the Committee next week. It flagged up the importance of putting sufficient safeguards in place to ensure that any admission by an offender is made in the full knowledge of the case before him and of the consequences. Guidance will be issued on those alternatives to prosecution — fixed penalty notices and conditional cautions — and I will make sure that those points are considered in the preparation of that guidance.

1387. Finally, I wondered whether Laurene wanted to say anything about solicitor advocates.

1388. Ms Laurene McAlpine (Northern Ireland Courts and Tribunals Service): As the Law Society indicated, we intend to bring forward fresh clauses on rights of audience for solicitors. I am fairly confident that it will be possible to bring those forward as an amendment to the Bill. We had helpful and constructive discussions with the Law Society and the Attorney General, and I think that we can devise provisions that meet the concerns but still deliver the Minister's policy.

1389. The Chairperson: I take it that all those clauses will be made available to the Committee beforehand?

1390. Mr Johnston: Yes, certainly. Our intention is that any amendments that we plan to introduce at Consideration Stage will be made available to the Committee when it starts to look at the Bill clause by clause.

1391. Mr Crawford: There was one point that I forgot to mention. Concern was expressed about delay, particularly in the Magistrates' Courts. We believe that the Magistrates' Courts legal aid rules that were made in 2009 largely removed any perverse incentive to string out a case, whether the motivation was money or whether things were just not managed efficiently. The way in which the rules are now structured provides the incentive to get matters to move ahead. So, we endorse what the legal profession said about that.

1392. There have been concerns and perceptions over the years. Those rules were made only last year, so the beneficial effect is only now becoming apparent. The complaints are still around, but we believe that those rules have largely fixed that problem.

1393. The Chairperson: I do not see anyone nodding to indicate that they have something pressing to ask. I thank you again for coming. No doubt we will meet again. Thank you.

1394. Mr Johnston: We will see you again next week.

1395. The Chairperson: Yes, I suspect that you might.

1396. Mr McDevitt: Could we do with a bit of research on the issues raised on clause 95? There seems to be a very grey area when it comes to where they start and stop. Two of the paragraphs relate to criminal offences, not procedural issues. They relate to people potentially being found guilty of contempt.

1397. The Chairperson: Maybe we should look at that.

1398. The Committee Clerk: A paper was tabled for the Committee a while ago, and we can take bits out of that. However, in that paper, it was clear that, with at least two rules committees, there is an undertaking to come to the Committee with proposals but that neither the Committee nor the Minister can require them to do that. The committees themselves makes the rules. The rules do not come through the Assembly, and they do not go to the Minister for agreement either. So, that definitely does not happen with at least two committees. With the higher committees, it does. We can pull out that paper and provide the information for next week. I suppose that the issue then becomes whether that is satisfactory.

1399. Mr McDevitt: I do not want to delay too much, but, Ms Fee said that this would have been subject to parliamentary scrutiny at some point along the way. However, the reality is that, if these were enacted during direct rule, they would not have been subject to that scrutiny, so this would have ended up on the statute book without anyone thinking of the consequences.

1400. The Committee Clerk: I think Ms Fee's point was that somebody decided at one time that that is the way it would be set up, but I do not know whether we could trace that back. If it would be any help, I could have a discussion with the Assembly's Examiner of Statutory Rules. He has quite a lot of experience of all types of rules, and I could ask whether he has a view of how the system works and whether there is anything else that we could add to it.

1401. Mr McDevitt: It does not rest easily with me at all as it stands, so I think any advice would be welcome.

1402. The Chairperson: OK. That is agreed.

1403. We will move on to the consideration of evidence received on clauses relating to sports law. You will recall that, at our meeting last week, it was agreed that the Committee would discuss, at this weeks' meeting, the evidence taken and the issues raised about the clauses relating to sport and that the departmental officials would not be in attendance.

1404. I advise members that they have copies of papers that highlight some of the key issues that the Committee may want to discuss and reach a view on. Members also have a copy of a letter from the Minister of Justice regarding the flexibility for implementing clause 43 in relation to rugby. The letter indicates that that is not Ulster Rugby's first preference and that it would prefer to be removed from the clause altogether, but it is a possible way forward.

1405. This is the first consideration of evidence on clauses relating to sports law, and there will be further opportunities in the new year to discuss them. However, if there are clauses that the Committee clearly agrees should be amended, it is helpful for those to be identified as early as possible to enable appropriate action to be taken. Does any member wish to comment on the evidence that we heard on sports law? If so, please feel free to speak.

1406. Sir Reg Empey: We have a letter from Ulster Rugby. The good behaviour of fans at Ravenhill has been talked about. In the main, that is true, but as someone who has represented that area for a long time, I have to say that it is not the whole picture. I was speaking to the police today, and there are occasional issues that are largely connected with the social activities in the beer tent and so on where there is a certain amount of antisocial behaviour, such as people urinating in gardens in the surrounding area. There is quite a bit of disturbance in the evenings with taxis arriving and so on, so it is not a totally benign environment. Generally speaking, I agree with the thrust of where Ulster Rugby is compared with others, but I would not want the impression given that —

1407. The Chairperson: It is not paradise.

1408. Sir Reg Empey: It is not as simple as that.

1409. I thought that the big issues in general at the meeting, which I think was a fortnight ago, were whether we felt that existing common law dealt with a number of the potential problems, as opposed to superimposing another set of offences. Take, for example, the possession of containers on the bus: if somebody was coming back from Scotland on a bus and was bringing things back from there, it could constitute an offence. This is a very important issue and a matter of grave concern to people, but there is always the risk of us being a wee bit OTT on these matters. Now, I am no expert, and you have been chairing this Committee since its inception, but I just wondered whether the clash between existing legal remedies and existing law, where the crossover relates to some of the new clauses, is an area that the Committee would want to focus on in its further consideration?

1410. The Chairperson: Some things struck me about the evidence that we took from the three major sporting organisations. The Bill seems to be trying to fix something that is not broken — or that is my perception — and there is a tendency here to go for legislation for the sake of it. I thought it ironic that the IFA, which was very up front in its attitude to the Bill, said that if such provisions have to be in it, go ahead, it can live with it and that is all right. Ulster Rugby and the GAA came at it from a different perspective.

1411. However, and I hope I do not misread the writers of the Bill, it seems to me that soccer is the one sport in focus. It may well be that provisions will be put in the Bill which, at the end of the day — and here I am thinking out loud — will be applicable to every organisation but applied to only one. Maybe members do not agree. However, the soccer officials who attended the Committee were content to live with it, no problem. The supporters' organisation was not as enthusiastic and did not see the real need for it. The more I think it over, the closer I come to the conclusion that this is legislation for the sake of it. It will not fix very much. Other members are free to comment.

1412. Lord Browne: I concur. Many of the offences contained in the Bill are already criminal offences and can be dealt with in that manner. The legislation goes too far. We can proceed with parts of it, but, as I said this morning at the Committee for Culture, Arts and Leisure, there is an offence of "being drunk"; what does that mean? It is a very loose definition. It you are drunk, and you become disorderly, there is already criminal legislation to deal with it.

1413. Sir Reg Empey: There are people who are less disorderly when they are drunk. [Laughter.]

1414. Lord Browne: I repeat myself, but offensive chanting, if it leads to a racial offence or it incites hatred, is already covered in legislation. This Bill goes too far.

1415. Mr McDevitt: There are two aspects to this. The regulations around drinking in grounds enjoyed no support from anyone. All the sporting associations felt that they could regulate that aspect and that it should not be criminalised. However, the issue of throwing missiles onto the pitch is one of genuine concern, and it is something we should think more about. I was not here for all the evidence, but I read over it.

1416. The Chairperson: Does present law not cover it?

1417. Mr McDevitt: No. If you go back to the evidence, you will see that there was a coherent and credible argument presented that was worthy of consideration. I cannot remember it exactly.

1418. Sir Reg Empey: It is that intent has to be proven.

1419. Mr McDevitt: Yes. You are absolutely right, Sir Reg. Throwing the missile is not an offence. It has to be demonstrated that the missile is thrown at someone with the intent of hitting the individual.

1420. The Chairperson: I recall a soccer match — I was not at it, but I saw it on television — where someone let off a rocket that went across the pitch. That individual was identified and dealt with. He was banned from the ground and I suspect that news of that travelled through the crowd. For instance, if someone throws a coin at a goalkeeper, and it smacks his head and splits it open, that is still an offence.

1421. Mr McDevitt: That is an offence if the coin hits the goalkeeper, and if guilt can be proven. As I understand it, the Bill would change things so that it would be an offence to throw a coin on the pitch, per se. Therefore, the act of throwing missiles onto the pitch will become an illegal act, in contrast to the law at present, whereby it is illegal to throw something that hits someone. The law as it stands means that if someone throws something and misses, that person is not committing an offence, whereas if someone throws something that hits a person, it is an offence. That is worthy of further consideration. That point came across in the evidence that we heard.

1422. As for chanting, the difference is that the Bill signals a strong intent. Putting something in legislation codifies things and means that offensive chanting is unacceptable. I heard no strong objections from the sporting bodies about that.

1423. Lord Browne: How is that going to be enforced if there are 100 people chanting? Who will be picked out of the crowd?

1424. Mr McDevitt: That is a fair point. The issue is whether the purpose of the law is to find people guilty of an offence or to deter people from behaving in a certain way. When we talk to lawyers and lecturers, they will say that the purpose of the law is both, and that the law should act as a deterrent — as a normative measure.

1425. On those two points, my instinct is that we should continue to reflect on them. The one thing that I am pretty sure of is that nobody thinks that it is particularly necessary to become normative in respect of the alcohol regulations. People feel that the law at present deals with the situation.

1426. The Chairperson: When I go to Ravenhill, which is not very often, I see people drinking in the stands. If I go to a football match, I do not see that.

1427. Mr McDevitt: That is right; those are the association rules. If you go to a GAA game, you cannot drink in the stands. You will remember what the rugby officials said when I asked them what happened when Irish rugby went to Croke Park for three years. The GAA rules applied. In other words, people were not able to bring their beer into the stands, and they were fine with that because those were the stadium rules at Croke Park. However, as you rightly point out, when you are in the terrace at Ravenhill or in the far stand — not in the main stand — you are allowed to bring beer.

1428. I wonder whether association rules are working well in that regard and whether we need to make criminal law about matters that are sorted out stadium by stadium, or association by association.

1429. The Chairperson: If it is any comfort, members do not have to make any decisions today. That does not mean that you will miss anything because we will be returning to this issue early in the new year when we will have to decide the road ahead for taking on these issues.

1430. Mr Givan: We need to be very sure that some of the provisions that we are talking about will be enforced. The provision on the possession of alcohol in a vehicle that is travelling to or from a match will be very difficult to enforce. For example, if there is alcohol on a bus carrying a group of lads, I question whether that provision would ever be enforced.

1431. The other point that I want to make is about offensive chanting. The issue is how to define what is offensive. For example, I was at the recent Northern Ireland friendly match. There is still an element of the crowd who shout an expletive every time the goalkeeper kicks the ball. I find that particularly offensive and would not bring my child to the match for that reason. I ask myself how "offensive" will be defined and how the provision will be enforced. Should that problem not be addressed without legislation? A proactive attempt should be made among supporters and organisers to stamp out that type of behaviour without the need for legislation. The chanting element should be put out, but legislation is not necessarily required to do that.

1432. The Chairperson: In most cases at rugby matches, there is usually stunned silence and respect when a player is taking a conversion. That has slipped a little, but not much.

1433. Mr McDevitt: Just a bit.

1434. Mr McCartney: In cricket, decisions never used to be questioned. Even that is changing now.

1435. The Chairperson: How do members want to proceed? Are you happy to come back in the early part of next year with your decisions firmly in your mind? The various groups may want to formulate where they stand on each issue before they come and talk to us about that.

1436. Mr McCartney: As Lord Browne said, we discussed the matter this morning at the Committee for Culture, Arts and Leisure. We have had a number of discussions. Perhaps, the Committee for Justice has more of a rationale. At times, what is missing is people's understanding of what we are trying to achieve. Earlier, we made the point that some of those provisions are lifted from English law. At the time that its legislation was introduced, England had a problem with hooliganism, particularly at soccer grounds, which needed to be tackled and has been tackled. In the main, that has been successful, notwithstanding what happened last night. The same problem does not exist here. Therefore, some of the legislation seems unnecessary.

1437. Lord Browne: Another point is that, to enforce legislation in England, it has cost clubs in the second league, which is equivalent to the former fourth division, in excess of £100,000 on CCTV, marshals and policing. We must consider how clubs will cope if all that legislation is introduced. They already suffer financially.

1438. Mr McCartney: We talked about alcohol on buses. We have all been on the way to a big game and saw buses lined up on the side of the road on unofficial pit stops. However, many supporters' clubs provide buses and enforce a strict no-alcohol policy. Therefore, it is a matter of the relationship between the supporters' club, its members and the transport company.

1439. The Chairperson: I think that that is where the issue lies. I really do. The matter very much comes down to codes of conduct and voluntary determination by clubs etc. At the few football matches that I get to on Saturdays, I hear announcements at the commencement that clubs do not and will not tolerate chanting or sectarian and racist remarks and that anyone who is identified participating in that will be removed and barred from the ground. In the main, that is working. I accept that it is not perfect.

1440. I draw your attention to the Department's submission. According to this, the clauses are about sending a positive message that sports grounds are places where people can be safe, bring their families and have fun. Nobody around the table would disagree with that. Should the creation of criminal offences in those clauses be used to send out a message of what behaviour is acceptable and what is not and to create a deterrent, as suggested by departmental officials, or would self-regulation and strengthening of individual codes of conduct for each sport be a better approach? I take the latter view. I believe in clubs enforcing their own codes of conduct. It is all very well to have a stack of legislation, but it comes down to enforcement. Without that, legislation becomes a laughing stock. We must ponder those issues.

1441. Lord Browne: Is it right that a young person should be criminalised because he has thrown a small object onto the pitch that has not caused injury to anybody? Should he get a criminal record and his opportunities for employment be affected? It might just have been a rush of blood to his head.

1442. The Chairperson: Is it right to criminalise someone who steals a dummy at £1·78?

1443. Sir Reg Empey: It was £1·79, Chairman. Get your facts correct. [Laughter.]

1444. The Chairperson: Yes. We must weigh up those issues. As I said, I suspect that the various parties will have their own deliberations privately and will determine what stance they will take on them. I suspect that, at the end of the day, common sense will prevail.

1445. Sir Reg Empey: It might be useful to get clarification on Conall's point about the throwing offence. As I recall, a specific issue that related to that was raised in evidence.

1446. The Chairperson: Therefore, if someone throws a missile, their intention must be determined: whether they intended to hit someone or miss. What happens if they were a bad shot and hit someone when they intended to miss?

1447. Sir Reg Empey: In other words, if I throw something at Alban and hit Conall, I am innocent. [Laughter.]

1448. Mr McDevitt: That happened to me in my brief footballing career.

1449. The Chairperson: We will leave that matter there, but we will return to it.

9 December 2010

Members present for all or part of the proceedings:

Lord Morrow (Chairperson)
Mr Raymond McCartney (Deputy Chairperson)
Lord Browne
Mr Thomas Buchanan
Sir Reg Empey
Mr Paul Givan
Mr Alban Maginness
Mr Conall McDevitt
Ms Carál Ní Chuilín
Mr John O'Dowd

Witnesses:

Mr Paul Black
Mr Tom Haire
Mr Gareth Johnston
Ms Janice Smiley

Department of Justice

Ms Louise Cooper
Mr Hugh Hamill
Mr Brian McCaughey

Probation Board for Northern Ireland

Mr Pat Conway
Mr David Weir

Northern Ireland Association for the Care and Resettlement of Offenders

Ms Edel Quinn
Ms Paula Rogers
Ms Koulla Yiasouma

Include Youth

1450. The Chairperson (Lord Morrow): Today's session will focus on Parts 5 and 6 of the Justice Bill and schedule 4, relating to the treatment of offenders and alternatives to prosecution. We were to be out of the last session by 3.00 pm and it is now 3.20 pm, so we have some time to make up. From here on in, strict timings will be enforced. I ask members to bear that in mind when they are asking questions. I welcome Mr Johnston and his team. There will be 10 minutes for each oral presentation and 20 minutes for questions — strictly, otherwise we could be here until 10.00 pm, and I suspect that no one is up for that at the moment.

1451. Members have been provided with an Assembly Research Services paper and a paper on the issues raised in other relevant written submissions on the treatment of offenders and the alternatives to prosecution.

1452. Mr Gareth Johnston (Department of Justice): I will ask Tom Haire, the head of the criminal law branch, to speak to Part 5 of the Bill, which is about treatment of offenders, and then Janice Smiley will speak to Part 6, which is about alternatives to prosecution.

1453. The Chairperson: There may have been a misunderstanding on my part; it is five minutes for presentations. I suspect you will not need more than that anyway.

1454. Mr Tom Haire (Department of Justice): I am not sure. I will give a fairly short summary of Part 5, which contains only eight clauses. It builds on and adjusts existing sentencing powers. It does not create any new offences; it just enhances the court's powers in a number of disparate areas.

1455. Clause 56 increases the penalty for common assault when dealt with summarily to six months. A penalty of two years is also available on indictment within existing law. The change brings the base sentence for common assault up to the same level as an existing offence called aggravated common assault. That offence is actually being repealed in the Bill, and it is all being amalgamated into one single same-penalty offence for common assault.

1456. Clause 57 increases the penalty for having an offensive weapon on school premises and brings it into line with our knife and offensive weapons package. It doubles the summary conviction penalty from six months to 12 months. Again, indictment is already available and carries a sentence of four years. Together with clause 98, it puts our knife crime and offensive weapons powers into one single set of provisions.

1457. Clause 58 extends the period for which a sentence can be deferred from six to 12 months. That will provide an increased opportunity for courts to monitor and assess offenders, and will allow victims to see how offenders respond before a court passes sentence.

1458. Clause 59 improves the existing legislation on sex offender licensing. It deals with the breaching of licences when a residency requirement, which is currently in law, determines which court an offender should be brought to. The current statutory reference to where the offender resides can cause difficulties in a limited number of cases. We are improving the law to correct those anomalies, and to ensure that the correct court is available in the correct circumstances.

1459. Clause 60 is a technical amendment, which will correct the type of judge who can impose, extend or discharge a closure order. A closure order is used to close premises which have been used, for example, for certain prostitution offences under the Sexual Offences Act 2003. I should point out that that particular provision has not yet been commenced. It is a preparatory adjustment, so that the right level of judge will consider closure order applications.

1460. Clause 61 adds money laundering, bribery and a series of fraud offences to what is called financial reporting orders law. A financial reporting order requires the offender to make reports of their financial affairs to law enforcement agencies for anything up to 20 years. They can already be applied to theft, fraud and offences under the Proceeds of Crime Act 2002.

1461. Clause 62 adds hijacking to the public protection sentencing regime. Again, that was a gap in our law, and its inclusion means that a person who is convicted of hijacking can, in appropriate circumstances, receive a sentence that requires risk assessment before release.

1462. Clause 63 is an adjustment to ensure that the supervised activity order, which is an alternative to custody for fine default, is available when commenced to anyone who has had a fine imposed anywhere else in the EU, and who lives or moves to live in Northern Ireland. It is part of an EU directive requirement to ensure that there is mutual recognition of financial penalties across the EU.

1463. The Chairperson: Thank you, Mr Haire. Any member who wants to seek clarification on some of the things that Mr Haire —

1464. Mr O'Dowd: Chairperson —

1465. The Chairperson: It is not questions as such, just clarification. OK?

1466. Mr O'Dowd: That is a difficult one; you can tell me if I am right or wrong. Why must there be a special category for the possession of a knife on school premises? I would have thought that if there was an offence for carrying a knife that that would apply no matter where you are.

1467. Mr Haire: There is an existing offence for that, but it was not mapped into the sentencing powers, so we are bringing it in.

1468. Mr O'Dowd: OK.

1469. The Chairperson: I take it that everyone is well clarified. Can we move on?

1470. Ms Janice Smiley (Department of Justice): We last spoke to the Committee on 27 May about proposals for alternatives to prosecution. At that time, we indicated that the proposals were for an expansion of fixed penalties and the introduction of conditional cautions. That was to help system efficiency in dealing with minor offending by first time and non-habitual offenders in three ways: enabling offences to be dealt with proportionately at an early juncture without a full prosecution; enabling police and prosecutorial resources to be better directed to front line policing duties and prosecuting more serious offending; and utilising conditional cautions to begin addressing the sorts of behaviour that underpin the commission of offences and to minimise the risk of reoffending. Although those provide opportunities for certain uncontested cases to be dealt with soon after the commission of the offence, offenders still retain their rights to ask for the offence to be tried at court instead.

1471. Part 6 of the Bill contains 20 clauses. Clauses 64 to 75 in Chapter 1 deal with the creation of the fixed penalties that build on existing fixed penalty powers already exercised by the police when dealing with certain road traffic offences.

1472. Clause 64 and schedule 4 set out the eligible offences and identify which of them attract the £40 penalty and which the £80 penalty. Those are set out in the paper that we provided to the Committee. There are certain limitations on their use for some particular offences, and those will be set out in departmental guidance to police. They include, for example, that indecent behaviour is limited to urination in the street, that criminal damage is limited to a maximum of £200, and that retail theft is for a first offence only, up to a value of £100. We had originally proposed that a fixed penalty for retail theft would be available only when the goods were recovered in a saleable condition. The Committee will recall that it asked us to consider whether we might extend that to cover incidents where the goods were not saleable but the retailer had been compensated for their loss. I can confirm that the guidance will include that provision. An order-making power in that clause provides that any future amendments to the list of offences or the penalty rates will come back to the Committee and the Assembly for consideration.

1473. Clauses 65 and 66 create the penalty notice powers in respect of adult offenders and establish that a penalty notice must contain certain information, such as details of the offence, the penalty amount, how it can be paid and how the recipient can exercise their rights within 28 days to request a court hearing instead.

1474. Clauses 67 and 68 explain the effect of the penalty notice and set restrictions on instituting prosecution proceedings. They provide that proceedings may not be brought against the person until the 28 days have elapsed from the date of issue, unless that person has exercised their right to request, in the prescribed manner, that they be tried at court. Where no request is made or the penalty remains unpaid after that 28-day period, the penalty will be increased by 50% and registered as a court fine.

1475. Clause 69 enables the Department to issue guidance to police about the operation of fixed penalties. I have already indicated that that will include certain restrictions on particular offences. However, it will also include, for example, considering the impact of an offence on a victim and preventing issue in circumstances where an otherwise eligible offence may have been motivated by issues such as domestic violence, hate crime or behaviour of a sexual nature.

1476. Clause 70 sets out the procedures for a payment of penalty to the individual specified on the penalty notice. Clauses 71 and 72 describe the process for dealing with the registration of fixed penalties that remain unpaid 28 days after issue. That gives the Chief Constable a power to issue a registration certificate on default of the penalty sum, which enables it to be registered as a court fine. Courts are also empowered to register the sum and issue a notice of registration to the defaulter requiring payment within 21 days from the date of registration. From this point onwards, the registered penalty sum is subject to the same enforcement procedures as any court-imposed fine.

1477. Clause 73 provides the ability for an individual who receives a notice of registration to challenge the notice. In order to do so, he or she must make a statutory declaration to the court that either they are not the person to whom the penalty notice had been issued or that they had, in fact, exercised their right to request a court hearing within the prescribed 28-day period. The clause enables the court, where appropriate, to either void the enforcement proceedings or treat the case as though that request had been made within the 28-day period.

1478. Clause 74 provides a similar power for the court to set aside, of its own volition, a registered sum that is enforced as a fine in the interests of justice. It is envisaged that that will be used in circumstances where the court has become aware that the individual is not the person to whom the penalty notice was issued or that it was not reasonable to expect that the individual who had received it could have complied with the requirements set out in the penalty notice. Clauses 73 and 74 are important safeguarding provisions and protect the rights of individuals where an offence has been dealt with by means of a non-court fixed penalty disposal. Clause 75 simply explains the meaning of the terms that have been used in Chapter 1.

1479. I turn now to Chapter 2. Clauses 76 to 84 deal with the creation of a new conditional caution disposal, which can be directed by a public prosecutor for suitable offences committed by adult offenders. This may be used in some instances for first-time offending. However, it is perhaps more suitable for individuals who have already shown some history of minor offending that suggests an ongoing pattern of offending that might best be tackled by compliance with conditions.

1480. Clause 76 makes provision for the conditional caution to be given by an authorised person — either a police officer or, where it is a departmental prosecution, a person authorised by the Director of Public Prosecutions. It specifies that the conditions attached to the caution, with which the offender must comply, should have a rehabilitative or reparative objective. Rehabilitative conditions may include, for example, participating in a programme dealing with substance misuse or with other offending behaviour aspects of a chaotic lifestyle. Reparative conditions might provide the opportunity for a course of action to be agreed between a victim and offender as to how the harm caused to the victim can be repaired.

1481. Members of the Committee will remember that they raised the question of the role that restorative justice interventions might play, and this is one of the examples where we might see that being deployed. There could also be short-term restrictive elements applied to either type of condition. For example, a prohibition might be placed on entering certain premises or areas if the prosecutor considered that that would help to achieve the objectives of the conditions.

1482. Clause 77 sets out the five requirements that must be satisfied before the initial caution is given. In summary, these are: that there is sufficient evidence to sustain a prosecution against the individual for the offence; that there has been an admission of the offence to an authorised person; that the effects of the initial caution and the consequences of failure to comply have been explained to the offender; and that the offender signs a document detailing the offence, their admission, the conditions being attached and their consent to the disposal.

1483. Clause 78 creates a power for the public prosecutor, with the consent of the offender, to vary the conditions that have been imposed by modifying, adding or removing a condition. That is to provide a bit of flexibility around adjusting circumstances that might arise after the initial caution is given to help achieve the objectives. Clause 79 makes provision for criminal proceedings to be brought where there is a failure to comply with a condition without reasonable excuse.

1484. Clause 80 provides a power of arrest without warrant where a police officer has reasonable grounds to believe that an offender has, without reasonable excuse, failed to comply with conditions attached to the initial caution. It will not always be necessary to effect an arrest to ascertain whether a breach has been made without reasonable excuse, but the power has been created for circumstances where that might be a necessary course of action. The code of practice included in the Bill will provide clear guidance on the exercise of that power of arrest.

1485. Clause 80 also makes provision for the handling of cases where the arrest power has been exercised, providing that the individual can be charged with the original offence, bailed pending a decision on charging, or released without charge or bail either with or without any variation of conditions. Clause 81 ensures the relevant provisions of the Police and Criminal Evidence (Northern Ireland) Order 1989 apply to any person arrested under clause 80.

1486. Clause 82 requires the Department to produce a code of practice and provides an indication of a range of issues that it should incorporate. These include the circumstances, procedures and places in which a conditional caution may be given and by whom, the conditions that may be attached and the period that they will have effect. It will also include information on the monitoring of conditions and the exercise of the power of arrest and consequential procedures. The code will be published in draft form for consultation and cannot be published or amended without the consent of the Attorney General. It will be laid in the Assembly and brought into operation by Order.

1487. Clause 83 enables the Probation Board for Northern Ireland (PBNI) to assist public prosecutors in determining whether a conditional caution should be given and to provide assistance in the supervision and rehabilitation of persons to whom conditional cautions are given. It is more of a permissive provision than an obligatory statutory requirement and enables the Public Prosecution Service to draw on the expertise of PBNI in relation to the consideration of individual cases. Clause 84 provides interpretation for the terms that are used in the Chapter.

1488. I will just say a little bit about the costs of the overall implementation. Implementing the proposals will necessitate around £200,000 in one-off capital costs for organisational and IT changes, which we are meeting through reprioritising our existing resources. The ongoing administration costs will be absorbed by the agencies concerned. For most, this is a different way of dealing with existing offending levels, and it is not creating any new offences.

1489. The PSNI will incur additional costs in back-office processing of the fixed-penalty notices, and it is looking at the model that it will adopt. It is willing to absorb the resources that are required to implement that processing model, and this is to realise the significant longer-term efficiency gains to be made by removing the administrative burden of producing a full prosecution file in all of these cases.

1490. The number of disposals will depend on the take-up rate, but we anticipate that around 2,000 cases could be diverted from courts in this way. The net efficiency gains will be quite significant. They will depend on the processing model, as I have indicated, and the administration costs for police in relation to that, but we are estimating gains of between £750,000 and £1 million a year.

1491. The Chairperson: Do any members want to seek clarification on what has been said?

1492. Mr McCartney: Clause 78 allows a public prosecutor, with the consent of the offender, to vary the conditions. How does that work? If the offender does not give consent, what happens?

1493. Ms Smiley: The clause provides individuals with the ability to identify that they have moved house or that family who they may visit have moved to a prohibition area. That allows the changes to be made. That is generally considered to be assisting the individual; it is not being imposed in cases where an individual has not consented.

1494. Mr McCartney: So, the application is made by the individual rather than the public prosecutor.

1495. Ms Smiley: If someone who is monitoring conditions finds that the person's circumstances have changed in a certain way, they may bring forward the recommendation. However, it is not imposed on the individual; it is a consensual arrangement.

1496. Ms Ní Chuilín: I am not sure if I heard you right, Janice, but when you spoke about clause 82, you said that once the draft has been agreed and laid before the Assembly, the code can be brought in by Order, and then from time to time the Department can revise the code. What does that mean? An equality impact assessment (EQIA) has been done on the Bill. Does that mean that the Department can add bits of it on without putting it out to public consultation or scrutiny?

1497. Ms Smiley: No, it means that whenever the code is initially produced it will come to the Committee and will then go out to public consultation. It will then be brought back to the Committee and the Assembly to lay an Order. If you seek to change the code, you have to go through the same process all over again, so it will go out to public consultation again and comes before Assembly scrutiny, and then it is produced and reissued.

1498. The Chairperson: We will leave it there. You are staying with us and will be coming back to the table a little later. Thank you very much.

1499. The next evidence session is with representatives from the Probation Board. I welcome Mr Brian McCaughey, who is the director, Hugh Hamill, who is the assistant director, and Louise Cooper, who is the head of business planning and development. You have 10 minutes to outline your brief — although I suspect that you will not need that long — and then there will be 20 minutes for questions.

1500. Mr Brian McCaughey (Probation Board Northern Ireland): Thank you very much. I intend to give a broad overview of the work of the Probation Board, although some members are very familiar with our work. After that, I will focus on Parts 5 and 6 of the Bill.

1501. The Probation Board and its work are enshrined in legislation. Our functions are set out in the Probation Board (Northern Ireland) Order 1982, and further responsibilities are outlined in the Criminal Justice (Northern Ireland) Order 1996 and the Criminal Justice (Northern Ireland) Order 2008. Part of that legislation empowers us to contribute funding to the voluntary and community sector. We have allocated £1·3 million to 57 voluntary and community organisations over the past year, including some of our colleagues who you will hear from this afternoon.

1502. Our role can be summarised under four core elements: ensuring that offenders comply with the sentences imposed by the courts; reducing reoffending; minimising harm; and working with offenders to promote and develop responsible citizenship. The Bill will assist us in those elements of work and help us to make a contribution to making Northern Ireland safer.

1503. The board employs 420 staff across 31 locations, including three prison sites. All probation officers hold a professional qualification in social work. They are committed to their jobs, believe in what they are doing and work to a very high standard. All of them undertake continuous professional development.

1504. On an annual basis, we prepare 6,000 reports for courts. On a daily basis, we supervise 4,300 orders, including probation orders, custody probation orders, combination orders, community service orders, article 26 licences and life licences, and the range of new public protection sentences. In our work, we deliver challenging programmes that tackle issues such as violent behaviour, sexual offending, alcohol abuse, drug abuse, domestic violence and anger management. We also play a full role in the public protection arrangements for Northern Ireland, chairing all the local committees.

1505. We continually review our work and continually try to be at the forefront of testing out new ideas. Some of our recent partnerships have included the Inspire Women's Project, which delivers services in the greater Belfast area, forging new partnerships across the voluntary and community sector. We have also developed a priority youth offending project with the Youth Justice Agency, which tackles the issue of higher-risk young people, and we have a very successful community service scheme working right across Northern Ireland in 300 community-based locations, which delivers over 140,000 hours of unpaid work. Our victims' unit was established in 2005, and it provides information to victims when someone has been sentenced to an order that requires supervision.

1506. I will move on to the Bill. We support the principle of offenders paying back for their crime, which is encapsulated in the offender levy under Part 1, and we also wanted to mention policing and community safety partnerships. I know that those are not issues for today and that there will be a chance to talk about those again. We understand that there will be a further meeting, and we wish to participate in that.

1507. I will focus on Parts 4 and 5 and start with the treatment of offenders. I will look first at clause 59, "Breach of licence conditions by sex offenders" and then at supervised activity orders, which are covered in Part 5. The Probation Board welcomes the proposed amendment to the Criminal Justice (Northern Ireland) Order 1996 through the insertion of paragraph (11) as a means of overcoming problems associated with petty session boundaries in respect of warrant applications for offenders residing in Northern Ireland. It would be beneficial to extend the amendment to custody probation orders and probation orders.

1508. The Probation Board welcomes the proposed amendment to the Criminal Justice Order to address the residency gap regarding sex offenders who are in the territory of Northern Ireland. As the law stands at present, article 26 licences are limited to the territory of Northern Ireland. The Probation Board recommends that legislative change is made to extend the provision of article 26 licences to the jurisdiction of England and Wales and the jurisdiction of Scotland.

1509. As regards supervised activity orders, the Probation Board has made preparations to pilot that disposal and can see the benefit of those orders, such as the direct benefit to the community through community service work and reserving prison for those who pose the greatest risk to the public.

1510. It is our view that there are advantages to introducing alternatives to prosecution, and our experience has been that there are some cases that could be dealt with outside the formal court hearing; for example, those that involve low-level offending or in which ther