Justice (Northern Ireland) Act 2002 (c. 26)

(The document as of February, 2008)

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(5) In preparing or making alterations to a code the Director must be guided by the general principles of the Guidelines on the Role of Prosecutors adopted at the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders held at Havana between 27th August and 7th September 1990.

(6) The Director must publish each code prepared by him and any alterations which he makes to a code (or the code as altered).

38 Equality and non-discrimination

(1) Section 75 (duty on public authorities to have regard to need to promote equality of opportunity and good relations between different groups) and section 76 (discrimination by public authorities) of the Northern Ireland Act 1998 (c. 47) are amended as follows.

(2) In subsection (3) of section 75, after paragraph (cc) insert--

" (cd) the Director of Public Prosecutions for Northern Ireland; " .

(3) After subsection (4) of that section insert--

" (4A) The references in subsections (1) and (2) and Schedule 9 to the functions of the Director of Public Prosecutions for Northern Ireland do not include any of his functions relating to the prosecution of offences. "

(4) In subsection (7) of section 76, after paragraph (e) insert--

" (ea) the Director of Public Prosecutions for Northern Ireland; " .

(5) After that subsection insert--

" (8) This section does not apply to a decision of the Director of Public Prosecutions for Northern Ireland not to institute, or to discontinue, criminal proceedings or, where such a decision has been made, to any act done for the purpose of enabling the decision whether to institute or continue the proceedings to be made or for securing that the proceedings are discontinued.

(9) No injunction may be granted in respect of a contravention of this section by the Director of Public Prosecutions for Northern Ireland unless the court is satisfied that it would not prejudice any decision to institute criminal proceedings or any criminal proceedings.

(10) Where a party to proceedings for a contravention of this section applies for a stay of those proceedings on the ground of prejudice to a decision to institute criminal proceedings, or of prejudice to particular criminal proceedings, the court must grant the stay unless it is satisfied that continuance of the proceedings for the contravention would not result in the prejudice alleged. "

39 Reports by Director

(1) The Director must, as soon as possible after the end of each financial year, prepare a report (an "annual report") on how he has exercised his functions during the financial year.

(2) The provisions of a code of practice for Public Prosecutors must be set out in the Director's annual report for the financial year in which the code is issued; and any alterations to the code must be set out in his annual report for the financial year in which the alterations are made.

(3) The Attorney General for Northern Ireland must arrange for each annual report of the Director to be published.

(4) But the Attorney General for Northern Ireland may exclude a part of an annual report from the copy to be published if, in his opinion, the publication of the part--

(a) would be against the public interest, or

(b) might jeopardise the safety of any person.

(5) If the Attorney General for Northern Ireland excludes a part of an annual report from publication, he must publish with the annual report a statement that it has been excluded.

(6) "Financial year" means--

(a) the period beginning with the day on which section 29 comes into force and ending with the first 31st March which falls at least six months after that day, and

(b) each subsequent period of twelve months beginning with 1st April.

Relationship of Director and Attorney General

40 Superintendence and removal of Director

(1) This section applies for so long as the Attorney General for England and Wales is Attorney General for Northern Ireland.

(2) The Director must exercise his functions under the superintendence of the Attorney General for Northern Ireland and is subject to any directions given by him; but a failure to comply with this subsection does not affect the validity of anything done by or on behalf of the Director.

(3) The Attorney General for Northern Ireland may remove the Director or Deputy Director from office on the ground of misbehaviour or inability to perform the functions of the office.

41 Transfer of functions etc.

(1) This section and sections 42 and 43 apply once the Attorney General for Northern Ireland is a person appointed under section 22(2).

(2) Any function of the Attorney General for Northern Ireland of consenting to the institution or conduct of criminal proceedings is transferred to the Director (but subject to Schedule 7).

(3) The function of the Attorney General for Northern Ireland of entering a nolle prosequi is transferred to the Director.

(4) The Attorney General for Northern Ireland may not present, or direct the presentation of, an indictment against a person charging him with an offence.

(5) In section 36(9)(a) of the Criminal Justice Act 1988 (c. 33) (reference to Court of Appeal of unduly lenient sentences), for "Attorney General for Northern Ireland" substitute "Director of Public Prosecutions for Northern Ireland".

(6) In section 15 of the Criminal Appeal (Northern Ireland) Act 1980 (c. 47) (reference to Court of Appeal of point of law following acquittal on indictment), for "Attorney General for Northern Ireland" (in both places) substitute "Director of Public Prosecutions for Northern Ireland".

42 Independence of Director

(1) The functions of the Director shall be exercised by him independently of any other person.

(2) The Director must consult the Attorney General for Northern Ireland and the Advocate General for Northern Ireland--

(a) before issuing or making alterations to a code under section 37, and

(b) before preparing his annual report.

(3) The Attorney General for Northern Ireland and the Director may (from time to time) consult each other on any matter for which the Attorney General for Northern Ireland is accountable to the Assembly.

(4) The Advocate General for Northern Ireland and the Director may (from time to time) consult each other on any matter for which the Advocate General for Northern Ireland is accountable to Parliament.

(5) The Director must send a copy of each annual report prepared by him to--

(a) the Attorney General for Northern Ireland, and

(b) the Advocate General for Northern Ireland.

(6) The Attorney General for Northern Ireland must lay before the Assembly a copy of each annual report received by him under subsection (5); and the Advocate General for Northern Ireland must lay before each House of Parliament a copy of each annual report so received by him.

(7) If a part of an annual report is excluded from publication under section 39(4)--

(a) the same exclusion is to be made from the copies which are laid under subsection (6), and

(b) a statement that the part has been excluded is to be laid with those copies.

43 Appointment and removal of Director by Attorney General

(1) The Attorney General for Northern Ireland must consult the Advocate General for Northern Ireland before appointing a person to be Director or Deputy Director.

(2) The Director or Deputy Director--

(a) may be removed from office by the Attorney General for Northern Ireland if a tribunal convened under subsection (4) has reported to him recommending that the Director or Deputy Director be removed on the ground of misbehaviour or inability to perform the functions of the office, and

(b) may be suspended from office by the Attorney General for Northern Ireland (pending a decision whether to remove him) if the tribunal, at any time when it is considering whether to recommend his removal, has recommended to the Attorney General for Northern Ireland that he be suspended.

(3) If the Director or Deputy Director is suspended he may not perform any of the functions of the office until the decision whether to remove him has been taken (but his other rights as holder of the office are unaffected).

(4) A tribunal may be convened by the Attorney General for Northern Ireland after consulting the Advocate General for Northern Ireland.

(5) A tribunal is to consist of--

(a) a person who holds the office of Lord of Appeal in Ordinary or high judicial office as defined in section 25 of the Appellate Jurisdiction Act 1876 (c. 59) (ignoring for this purpose section 5 of the Appellate Jurisdiction Act 1887 (c. 70)) and does not hold (and has never held) the office of Lord Chief Justice, Lord Justice of Appeal or judge of the High Court, and

(b) a person who holds, or has held, office as a judge of the High Court in England and Wales or a judge of the Court of Session.

(6) The selection of the persons to be the members of a tribunal is to be made by the Lord Chancellor.

(7) The chairman of a tribunal is the person mentioned in paragraph (a) of subsection (5).

(8) The procedure of a tribunal is to be determined by its chairman.

(9) The Attorney General for Northern Ireland may pay to a member of a tribunal any such allowances or fees as he may determine.

Supplementary

44 Interpretation

(1) For the purposes of this Part proceedings in relation to an offence are instituted--

(a) where a summons is issued under Article 20 of the Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)), when the complaint for the offence is made under that Article,

(b) where a warrant is issued for the arrest of any person under that Article, when the complaint for the offence is made under that Article,

(c) where a person is charged with the offence after being taken into custody without a warrant, when he is informed of the particulars of the charge,

(d) where an indictment is presented under section 2 of the Grand Jury (Abolition) Act (Northern Ireland) 1969 (c. 15 (N.I.)) in a case falling within paragraph (c) or (e) of subsection (2) of that section, when the indictment is presented to the court.

(2) Where the application of subsection (1) would result in there being more than one time for the institution of the proceedings, they are to be taken to have been instituted at the earliest of those times.

(3) Where proceedings are instituted on the making of a complaint under Article 20 of the Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)), section 31(1) does not require the Director to do anything until the summons or warrant issued under that Article has been served or executed.

(4) For the purposes of this Part references to the conduct of any proceedings include discontinuing the proceedings and the taking of any steps which may be taken in relation to the proceedings (including making representations on appeals or applications for judicial review or in bail applications).

(5) For the purposes of this Part binding over proceedings shall be taken to be criminal proceedings.

(6) "Binding over proceedings" means any proceedings instituted (whether by way of complaint under Article 127 of the Magistrates' Courts (Northern Ireland) Order 1981 or otherwise) with a view to obtaining from a magistrates' court an order requiring a person to enter into a recognisance to keep the peace or to be of good behaviour.

Part 3 Other New Institutions

Chief Inspector of Criminal Justice

45 Chief Inspector of Criminal Justice

(1) There is to be an office of Chief Inspector of Criminal Justice in Northern Ireland.

(2) The Secretary of State must appoint a person to be the Chief Inspector.

(3) Schedule 8 makes further provision about the Chief Inspector.

46 Functions of Chief Inspector

(1) The Chief Inspector must carry out inspections of the following organisations--

(a) the Police Service of Northern Ireland and the Police Service of Northern Ireland Reserve,

(b) Forensic Science Northern Ireland,

(d) the Public Prosecution Service for Northern Ireland,

(e) the Probation Board for Northern Ireland,

(f) the Northern Ireland Prison Service,

(g) the Juvenile Justice Board,

(h) any body or person (other than the Juvenile Justice Board) with whom the Secretary of State has made arrangements for the provision of juvenile justice centres or attendance centres,

(i) Health and Social Services Boards and Health and Social Services trusts, and

(j) the Compensation Agency.

(2) But the Chief Inspector must not carry out inspections of an organisation if he is satisfied that the organisation is subject to adequate inspection by someone other than him.

(3) An inspection of an organisation carried out by the Chief Inspector may cover any institution provided or managed by the organisation.

(4) An inspection carried out by the Chief Inspector of an organisation providing juvenile justice centres or attendance centres (other than the Juvenile Justice Board) may cover only activities relating to the juvenile justice centres or attendance centres.

(5) An inspection carried out by the Chief Inspector of a Health and Social Services Board or a Health and Social Services trust may cover only activities relating to the keeping of children in secure accommodation under custody care orders.

(6) The Secretary of State may by order amend subsection (1) by--

(a) adding any organisation having a role in the criminal justice system in Northern Ireland (apart from a court or tribunal),

(b) omitting an organisation, or

(7) An order under subsection (6) may make appropriate consequential amendments in this section or in any other enactment or any instrument (whenever passed or made).

47 Further provisions about functions

(1) The Chief Inspector must from time to time, after consultation with the Secretary of State and the Attorney General for Northern Ireland, prepare a programme specifying the inspections which he proposes to carry out under section 46.

(2) The Chief Inspector must send a copy of each programme prepared under subsection (1) to--

(a) the Secretary of State, and

(b) the Attorney General for Northern Ireland.

(3) The Secretary of State may require the Chief Inspector to carry out an inspection of an organisation specified in section 46.

(4) The Secretary of State may require the Chief Inspector to carry out a review of any matter relating to the criminal justice system in Northern Ireland (apart from a matter relating to a court or tribunal).

(5) The Secretary of State may not require the Chief Inspector to carry out an inspection or review under subsection (3) or (4) relating (wholly or partly) to the Public Prosecution Service for Northern Ireland without the consent of the Attorney General for Northern Ireland.

(6) The Chief Inspector may not--

(a) carry out inspections or reviews of individual cases, or

(b) carry out an inspection relating to activities of an organisation which do not concern the criminal justice system in Northern Ireland.

(7) The Secretary of State may require the Chief Inspector to provide advice in relation to an organisation specified in section 46.

48 Powers of inspectors

(1) A person involved in the carrying out of an inspection or review by the Chief Inspector may, on showing evidence of his authority (if required to do so), enter any premises at any reasonable hour for the purposes of the inspection or review.

(2) Such a person may, for the purposes of the inspection or review, require--

(a) that documents be produced in a form in which they can be taken away or be made available for inspection and copying,

(b) that an explanation be given of any document produced or made available, or

(3) A person commits an offence if--

(a) he fails, without reasonable excuse, to comply with a requirement imposed on him by virtue of subsection (2), or

(b) he intentionally obstructs a person involved in the carrying out of an inspection or review by the Chief Inspector.

(4) A person guilty of an offence under subsection (3) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(5) "Document" includes anything in which information is stored in electronic or any other form; and, in relation to anything containing information in electronic form, references to production or making available are to production or making available in a form in which the information is readily intelligible.

49 Reports

(1) The Chief Inspector must report to the Secretary of State on each inspection and review carried out by him.

(2) When a report is received by the Secretary of State, he must--

(a) lay a copy of it before each House of Parliament, and

(b) arrange for it to be published.

(3) But the Secretary of State may exclude a part of a report from the copy so laid or published if, in his opinion, the laying or publication of the part--

(a) would be against the public interest, or

(b) might jeopardise the safety of any person.

(4) If the Secretary of State excludes a part of a report from laying or publication, he must lay or publish with the report a statement that it has been excluded.

(5) If a report relates (wholly or partly) to the Public Prosecution Service for Northern Ireland, the Chief Inspector must send a copy of it to the Attorney General for Northern Ireland.

Law Commission

50 Law Commission

(1) There is to be a body corporate known as the Northern Ireland Law Commission.

(2) The Commission is to consist of--

(a) a chairman, and

(b) four other Commissioners,

appointed by the Secretary of State.

(3) The chairman is to be a person who holds the office of judge of the High Court.

(4) Of the other Commissioners--

(a) one is to be a person appearing to the Secretary of State to be suitably qualified to be a Commissioner by experience as a barrister,

(b) one is to be a person appearing to the Secretary of State to be suitably qualified to be a Commissioner by experience as a solicitor,

(c) one is to be a person appearing to the Secretary of State to be suitably qualified to be a Commissioner by experience as a teacher of law in a university, and

(d) the other is to be a person who does not hold (and has never held) judicial office and is not (and has never been) a barrister, solicitor or teacher of law in a university.

(5) Before appointing a person to be a Commissioner the Secretary of State must consult--

(a) the Lord Chancellor,

(b) the First Minister and deputy First Minister, and

(6) In appointing persons to be Commissioners, the Secretary of State must so far as possible secure that the Commissioners (taken together) are representative of the community in Northern Ireland.

(7) Schedule 9 makes further provision about the Commission.

51 Duties of Commission

(1) The Commission must keep under review the law of Northern Ireland with a view to its systematic development and reform, including in particular by--

(a) codification,

(b) the elimination of anomalies,

(d) the reduction of the number of separate legislative provisions,

and generally by simplifying and modernising it.

(2) For that purpose the Commission must--

(a) consider any proposals for the reform of the law of Northern Ireland made or referred to it,

(b) prepare and submit to the Secretary of State (from time to time) programmes for the examination of different branches of that law with a view to reform, including recommendations as to the agency (whether itself or another body) by which any such examination should be carried out,

(c) undertake, pursuant to any such recommendations approved by the Secretary of State, the examination of particular branches of that law and the formulation (by means of draft legislation or otherwise) of proposals for reform of those branches,

(d) prepare (from time to time) at the request of the Secretary of State comprehensive programmes of consolidation and repeal of legislation, and undertake the preparation of draft legislation pursuant to any such programme approved by the Secretary of State,

(e) provide advice and information to government departments and, with the consent of the Secretary of State, to Northern Ireland departments and other authorities or bodies concerned with proposals for the reform or amendment of any branch of the law of Northern Ireland, and

(f) obtain such information as to the legal systems of other countries as appears to the Commission likely to facilitate the performance of its other duties.

(3) Before approving any programme prepared by the Commission, the Secretary of State must consult--

(a) the Lord Chancellor,

(b) the First Minister and deputy First Minister, and

(4) In performing its duties the Commission must consult--

(a) the Law Commission,

(b) the Scottish Law Commission, and

(5) The Commission must make an annual report on how it has performed its duties.

52 Reports etc.

(1) The Commission must send to the Secretary of State and the Office of the First Minister and deputy First Minister a copy of--

(a) each programme prepared by the Commission and approved by the Secretary of State,

(b) each set of proposals for reform formulated by the Commission pursuant to such a programme, and

(2) The Secretary of State must lay before each House of Parliament a copy of each document received by him under subsection (1).

(3) The First Minister and deputy First Minister, acting jointly, must lay before the Assembly a copy of each document received by their Office under subsection (1).

(4) After a copy of a document has been laid in accordance with subsections (2) and (3), the Commission must arrange for the document to be published.

Part 4 Youth Justice

Aims

53 Aims of youth justice system

(1) The principal aim of the youth justice system is to protect the public by preventing offending by children.

(2) All persons and bodies exercising functions in relation to the youth justice system must have regard to that principal aim in exercising their functions, with a view (in particular) to encouraging children to recognise the effects of crime and to take responsibility for their actions.

(3) But all such persons and bodies must also have regard to the welfare of children affected by the exercise of their functions (and to the general principle that any delay in dealing with children is likely to prejudice their welfare), with a view (in particular) to furthering their personal, social and educational development.

(4) "Youth justice system" means the system of criminal justice in so far as it relates to children.

(5) "Offending" includes re-offending.

(6) "Children" means persons who are under the age of 18.

New orders

54 Reparation orders

After Article 36 of the Criminal Justice (Children) (Northern Ireland) Order 1998 (S.I. 1998/1504 (N.I. 9)) insert--

" Reparation orders

36A Reparation orders

(1) Where a child is found guilty by or before any court of an offence, other than an offence the sentence for which is (in the case of an adult) fixed by law as imprisonment for life, the court (subject to Article 32(1)) may make a reparation order.

(2) A reparation order is an order requiring the offender to make such reparation for the offence, otherwise than by the payment of compensation, as is specified in the order--

(a) to a person or persons so specified; or

(b) to the community at large.

(3) Any person so specified must be a person identified by the court as--

(a) a victim of the offence; or

(b) a person otherwise affected by it.

(4) Before making a reparation order, the court must obtain and consider a written report by--

(a) a probation officer;

(b) a social worker of the appropriate authority; or

(5) The report must indicate--

(a) the type of requirements that it would be appropriate to impose on the offender; and

(b) the attitude of the victim or victims of the offence to the requirements proposed to be included in the order.

36B Restrictions on reparation orders

(1) The court must not make a reparation order in respect of the offender unless he consents.

(2) The court must not make a reparation order in respect of the offender if it proposes--

(a) to pass on him a custodial sentence; or

(b) to make in respect of him a community service order, a community responsibility order or a combination order.

(3) The court must not make a reparation order unless--

(a) it has been given notice by the Secretary of State that arrangements for implementing such orders are available in the district proposed to be named in the order under Article 36D(1); and

(b) the notice has not been withdrawn.

(4) Before making a reparation order, the court must state in open court that it is of the opinion that Article 8(1) of the Criminal Justice (Northern Ireland) Order 1996 (N.I. 24) (restrictions on imposing community sentences) applies and why it is of that opinion.

(5) It must also explain to the offender in ordinary language--

(a) why it is making the order;

(b) the effect of the order and of the requirements proposed to be included in it;

(d) that the court has power under that Schedule to review the order on the application either of the offender or of the responsible officer.

36C Requirements of reparation orders

(1) A reparation order must not require the offender--

(a) to make reparation for more than 24 hours; or

(b) to make reparation to any person without the consent of that person.

(2) Requirements specified in a reparation order must, as far as practicable, be such as to avoid--

(a) any conflict with the offender's religious beliefs or with the requirements of any order to which he may be subject; and

(b) any interference with the times, if any, at which he normally works or attends school or any other educational establishment.

(3) The reparation required by a reparation order must be made--

(a) under the supervision of the responsible officer; and

(b) within the period of six months beginning with the date on which the order is made.

(4) But, unless revoked, the order remains in force until the offender has made the reparation required by the order.

(5) The Secretary of State may make rules for regulating the making of reparation by persons subject to reparation orders.

(6) Such rules may, in particular, make provision--

(a) regulating the functions of responsible officers;

(b) limiting the number of hours of making reparation on any one day;

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