Justice Bill
Marshalled List of Amendments
Further Consideration Stage
Monday 07 March 2011
Amendments tabled up to 9:30am Thursday 3 March 2011
The Bill will be considered in the following order-
Clauses, Schedules and Long Title
Amendment 1 [Negatived on division]
Clause 22 , Page 18, Line 11
After ‘shall be’ insert ‘in effect that of a PCSP’
Mr Raymond McCartney
Ms Carál Ní Chuilín
Mr John O'Dowd
Amendment 2 [Negatived]
Clause 22 , Page 19, Line 7
Leave out subsection (6) and insert -
‘(6) The principal PCSP shall have a role of co-ordinating functions and activities which pertain to the district of Belfast and with the agreement of the DPCSPs.’
Mr Raymond McCartney
Ms Carál Ní Chuilín
Mr John O'Dowd
Amendment 3 [Negatived]
New Clause
After clause 33 insert -
‘Duty on prescribed public bodies to consider crime and anti-social behaviour implications in exercising functions
33A. -(1) A prescribed public body must exercise its functions in relation to any locality with due regard to the likely effect of the exercise of those functions on crime and other anti-social behaviour in that locality.
(2) The Department must, with the approval of the Attorney General, issue guidance to prescribed public bodies as to their compliance with the duty in subsection (1).
(3) Legal proceedings calling into question the compliance by a public body with the duty in subsection (1) shall not be entertained by any court or tribunal unless the proceedings are initiated by, or with the consent of, the Attorney General.
(4) In any legal proceedings calling into question the compliance by a public body with the duty in subsection (1) in relation to any matter, it is a defence for the body to show that it had due regard to the guidance under subsection (2) in relation to that matter.
(5) In this section -
“legal proceedings” means proceedings in any court or tribunal whether for judicial review or otherwise;
“prescribed” means prescribed by regulations made by the Department;
“public body” means -
(a) a Northern Ireland department; and
(b) a body listed in Schedule 2 to the Commissioner for Complaints ( Northern Ireland) Order 1996 (NI 7).
(6) The Department must consult the other Northern Ireland departments before it -
(a) issues any guidance under subsection (2); or
(b) makes any regulations under subsection (5).
(7) No regulations shall be made under subsection (5) unless a draft of the regulations has been laid before, and approved by a resolution of, the Assembly.’
Minister of Justice
Amendment 4 [Made]
Clause 37 , Page 26, Line 10
At end insert -
‘(aa) it is of an indecent nature; or’
Mr Conall McDevitt
Mr Alban Maginness
Amendment 5 [Negatived on division]
Clause 37 , Page 26, Line 10
at end insert -
‘(ab) it consists of or includes matter which is threatening, abusive or insulting to a person by reason of that person’s colour, race, nationality (including citizenship), ethnic or national origins, religious belief, political opinion, sexual orientation or disability; or’
Mr Conall McDevitt
Mr Alban Maginness
Amendment 6 [Negatived on division]
Clause 37 , Page 26, Line 11
Leave out ‘or indecent nature; or’ and insert ‘nature and it consists of or includes matter which is threatening, abusive or insulting to a person by reason of that person’s colour, race, nationality (including citizenship), ethnic or national origins, religious belief , political opinion, sexual orientation or disability.’
Mr Conall McDevitt
Mr Alban Maginness
Amendment 7 [Not Called]
Clause 37 , Page 26, Line 12
Leave out sub-paragraph (3)(b)
Mr Conall McDevitt
Mr Alban Maginness
Amendment 8 [Negatived on division]
Clause 37 , Page 26, Line 14
After ‘religious belief,’ insert ‘political opinion,’
Minister of Justice
Mr Conall McDevitt
Mr Alban Maginness
Amendment 9 [Negatived on division]
Clause 37 , Page 26, Line 15
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 to an individual as a member of such a group.
(3B) Nothing in this section shall be used to curtail legitimate or recognised political expression or debate.’
Mr Raymond McCartney
Ms Carál Ní Chuilín
Mr John O'Dowd
Amendment 10 [Negatived on division]
Clause 44 , Page 30, Line 37
After ‘religious belief,’ insert ‘political opinion,’
Minister of Justice
Mr Conall McDevitt
Mr Alban Maginness
Amendment 11 [Withdrawn]
New Clause
After clause 54 insert -
‘Sexual offences: review of indefinite notification requirements
54A. -(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 is 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)).
(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 such body or person as 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,
and 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;
(d) the age of the offender at the time of the decision;
(e) the age of the offender at the time any offence referred to in paragraph (a) was committed;
(f) 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;
(g) any convictions or findings made by a court in respect of the offender for any other offence listed in Schedule 3;
(h) any caution which the offender has received for an offence which is listed in Schedule 3;
(i) whether any criminal proceedings for any offences listed in Schedule 3 have been instituted against the offender but have not concluded;
(j) 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);
(k) 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;
(l) 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
(m) 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(1) and (2) 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 notice of the order made by the Crown Court to the offender and the Chief Constable.
Further reviews
6. -(1) Except as provided by sub-paragraph (2), 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) 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) 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).
(4) Paragraphs 2(6) and (7), 3, 4 and 5 apply with appropriate modifications in relation to an application under this paragraph as they apply in relation to an application under paragraph 2; 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 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.”.’
Minister of Justice
Amendment 12 [Made]
New Clause
After clause 86 insert -
‘Enhanced legal aid fees for certain solicitors
86A. Schedule 4A (which makes provision for enhanced legal aid fees for certain solicitors) has effect.’
Minister of Justice
Amendment 13 [Made]
New Clause
After clause 101 insert -
‘ Variation of firearms certificate
101A. In Article 11 of the Firearms ( Northern Ireland) Order 2004 (NI 3) after paragraph (3) (substitution of shotguns) insert -
“(4) If a person—
(a) sells a relevant firearm (“the first firearm”) to the holder of a firearms dealer’s certificate (“the dealer”); and
(b) as part of the same transaction purchases from the dealer another relevant firearm of the same type and calibre (“the second firearm”),
the dealer may vary that person’s firearm certificate by substituting the second firearm for the first firearm.
(5) In paragraph (4) “relevant firearm” means a firearm other than -
(a) a shotgun; or
(b) a prohibited weapon.”.’
Lord Morrow of Clogher Valley
Amendment 14 [Made]
New Clause
After clause 101 insert -
‘Removal of restrictions on sporting shooting for young persons
101B. -(1) Schedule 1 of the Firearms (Northern Ireland) Order 2004 (NI 3) paragraph (11) (shotguns) shall be amended as follows.
(2) For sub-paragraph (3) substitute -
“(3) Sub-paragraphs (1) and (2) do not apply in relation to a person who is under the age of 18 unless he is under the supervision of a firearm certificate holder who is authorised to posses such a shotgun.”.’
Lord Morrow of Clogher Valley
Amendment 15 [Made]
New Clause
After clause 101 insert -
‘Air guns and ammunition
101C. -(1) Schedule 1 to the Firearms (Northern Ireland) Order 2004 (NI 3) paragraph (9) (air guns and ammunition) shall be amended as follows.
(2) For sub-paragraph 3(a) substitute -
“(a) have an air gun in his possession without a firearm certificate unless he is under the supervision of a firearm certificate holder who is authorised to possess such an air gun.”.’
Lord Morrow of Clogher Valley
Amendment 16 [Not Moved]
Clause 103 , Page 63, Line 21
At beginning insert ‘Except as provided by section ( Duty on prescribed public bodies to consider crime and anti-social behaviour implications in exercising functions) (7),’
Minister of Justice
Amendment 17 [Made]
Clause 103 , Page 63, Line 21
After ‘Regulations’ insert ‘made by the Department’
Minister of Justice
Amendment 18 [Made]
Clause 103 , Page 63, Line 25
At end insert ‘, paragraph 7(3) of Schedule 1 or paragraph 7(3) of Schedule 2;’
Minister of Justice
Amendment 19 [Made]
Schedule 1 , Page 69, Line 40
Leave out from ‘a chair’ to end of line 7 on page 70
Minister of Justice
Amendment 20 [Not Moved]
Schedule 1 , Page 70, Line 17
At end insert -
‘(5A) Subject to the following provisions of this paragraph, a person shall hold and vacate office as chair or vice-chair in accordance with such terms as the council may determine.’
Minister of Justice
Amendment 21 [Made]
Schedule 1 , Page 70
Leave out line 38 and insert -
‘(a) a chair who shall be the person who is for the time being chair of the PCSP; and’
Minister of Justice
Amendment 22 [Made]
Schedule 1 , Page 71, Line 1
Leave out sub-paragraph (3)
Minister of Justice
Amendment 23 [Made]
Schedule 1 , Page 71
Leave out line 12
Minister of Justice
Amendment 24 [Made]
Schedule 1 , Page 71
Leave out line 21
Minister of Justice
Amendment 25 [Negatived]
Schedule 2 , Page 74, Line 14
Leave out ‘a DPCSP -’ and insert ‘the DPCSP in each police district of Belfast -’
Mr Raymond McCartney
Ms Carál Ní Chuilín
Mr John O'Dowd
Amendment 26 [Made]
Schedule 2 , Page 79, Line 9
Leave out from ‘a chair’ to end of line 16
Minister of Justice
Amendment 27 [Not Moved]
Schedule 2 , Page 79, Line 26
At end insert -
‘(5A) Subject to the following provisions of this paragraph, a person shall hold and vacate office as chair or vice-chair in accordance with such terms as the council may determine.’
Minister of Justice
Amendment 28 [Made]
Schedule 2 , Page 80
Leave out line 6 and insert -
‘(a) a chair who shall be the person who is for the time being chair of the DPCSP; and’
Minister of Justice
Amendment 29 [Made]
Schedule 2 , Page 80, Line 9
Leave out sub-paragraph (3)
Minister of Justice
Amendment 30 [Made]
Schedule 2 , Page 80
Leave out line 20
Minister of Justice
Amendment 31 [Made]
Schedule 2 , Page 80
Leave out line 29
Minister of Justice
Amendment 32 [Made]
New Schedule
After Schedule 4 insert -
‘Schedule 4A
Enhanced legal aid fees for certain solicitors
Power to provide for enhanced fee
1. -(1) Regulations under Article 22 or 36 of the Legal Aid, Advice and Assistance ( Northern Ireland) Order 1981 (NI 8) or an order under Schedule 2 to that Order may provide for the payment of an enhanced fee to a solicitor who -
(a) exercises a right of audience in a court or tribunal to which this Schedule applies;
(b) has been accredited by the Law Society under paragraph 2 in relation to that court or tribunal; and
(c) complied with the duties in paragraph 3.
(2) This Schedule applies to -
(a) the Crown Court;
(b) a county court;
(c) a magistrates’ court; and
(d) a tribunal to which sub-paragraph (3) applies.
(3) This sub-paragraph applies to a tribunal if -
(a) it is a tribunal mentioned in Part 1 of Schedule 1 to the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981; or
(b) assistance by way of representation may be approved under Article 5 of that Order in respect of proceedings before the tribunal.
Accreditation of solicitors
2. -(1) The Law Society shall make regulations with respect to the education, training and experience to be undergone by solicitors seeking accreditation for the purposes of this paragraph in relation to a court or tribunal to which this Schedule applies.
(2) A person who is qualified to act as a solicitor may apply to the Law Society for accreditation under this paragraph in relation to a court or tribunal to which this Schedule applies.
(3) An application under sub-paragraph (2) -
(a) shall be made in such manner as may be prescribed;
(b) shall be accompanied by such information as the Law 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.
(4) At any time after receiving the application and before determining it the Law Society may require the applicant to provide it with further information.
(5) The Law Society shall grant accreditation under this paragraph in relation to a court or tribunal if it appears to the Law 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 the applicant in relation to that court or tribunal by virtue of regulations under sub-paragraph (1).
(6) Accreditation granted to a person under this paragraph ceases to have effect if, and for so long as, that person is not qualified to act as a solicitor.
(7) The Law 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 be accredited under this paragraph in relation to a prescribed court or tribunal.
(8) Every entry in the register kept under Article 10 of the Solicitors ( Northern Ireland) Order 1976 (NI 12) shall include details of any accreditation granted under this paragraph to the solicitor to whom the entry relates.
Duties of solicitor
3. -(1) Sub-paragraph (2) applies where -
(a) either -
(i) a criminal aid certificate or civil aid certificate is granted under the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 to a person in any proceedings in a court or tribunal to which this Schedule applies; or
(ii) assistance by way of representation is approved in respect of a person under Article 5 of that Order in relation to proceedings in such a court or tribunal;
(b) that certificate or approval entitles that person (“the client”) to be represented by counsel or by a solicitor accredited under paragraph 2 in relation to that court or tribunal; and
(c) either -
(i) the client’s solicitor is minded to arrange for another solicitor who is accredited in relation to that court or tribunal to provide that representation; or
(ii) the client’s solicitor is accredited in relation to that court or tribunal and is minded to provide that representation.
(2) The client’s solicitor must advise the client in writing -
(a) of the advantages and disadvantages of representation by an accredited solicitor and by counsel, respectively; and
(b) that the decision as to whether an accredited solicitor or counsel is to represent the client is entirely that of the client.
(3) The Law Society shall make regulations with respect to the giving of advice under sub-paragraph (2).
(4) A solicitor shall -
(a) in advising a client under sub-paragraph (2), act in the best interest of the client; and
(b) give effect to any decision of the client referred to in sub-paragraph (2)(b).
(5) Where -
(a) a solicitor has complied with sub-paragraph (2) in relation to the representation of a client in any proceedings in a court or tribunal, and
(b) that client is to be represented in those proceedings by an accredited solicitor,
the solicitor shall inform the court or tribunal of the fact mentioned in sub-paragraph (a) in such manner and before such time as the relevant rules may require.
(6) For the purposes of this paragraph compliance with sub-paragraph (2) or (5) in relation to any proceedings in a court or tribunal in any cause or matter is to be taken to be compliance with that sub-paragraph in relation to any other proceedings in that court in the same cause or matter.
(7) If a solicitor contravenes this paragraph, any person may make a complaint in respect of the contravention to the Solicitors Disciplinary Tribunal.
Regulations
4. -(1) Regulations under this Schedule require the concurrence of -
(a) the Lord Chief Justice; and
(b) the Department, given after consultation with the Attorney General.
(2) The Department shall not grant its concurrence to any regulations under paragraph 2(1) or 2(7) unless regulations have been made under paragraph 3(3) and are in operation.
Consequential amendments
5. The Department may by order make such amendments to -
(a) the Legal Aid, Advice and Assistance ( Northern Ireland) Order 1981; or
(b) Schedule 3 to the Access to Justice ( Northern Ireland) Order 2003 (NI 10),
as appear to the Department to be necessary or expedient in consequence of, or for giving full effect to, the provisions of this Schedule.
Interpretation
6. In this Schedule -
“accredited solicitor”, in relation to any court or tribunal, means a solicitor who is accredited under paragraph 2 in relation to that court or tribunal;
“the client” has the meaning given in paragraph 3(1)(b);
“the Law Society” means the Incorporated Law Society of Northern Ireland;
“prescribed” means prescribed by regulations made by the Law Society;
“relevant rules” means -
(a) in relation to the Crown Court, Crown Court rules,
(b) in relation to a county court, county court rules or family proceedings rules,
(c) in relation to a magistrates’ court, magistrates’ courts rules,
(d) in relation to a tribunal, the rules regulating the practice and procedure of the tribunal.’
Minister of Justice
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