Justice (Northern Ireland) Act 2002

Justice (Northern Ireland) Act 2002

2002 CHAPTER 26

Commentary

Schedule 12: Minor and Consequential Amendments

203. This Schedule makes a number of minor and consequential amendments.

204. Paragraphs 1, 2 and 6 of this Schedule replicate amendments made by the Prosecution of Offences (Northern Ireland) Order 1972, which is repealed by this Act.

205. Paragraphs 3, 4 and 5 make minor amendments to the County Courts Act (Northern Ireland) 1959, including clarifying that one or more judges may be assigned to each county court division. Paragraph 4 also reflects the current position in Belfast where four judges are assigned to Belfast, one of whom is appointed Recorder of Belfast. Paragraph 5 is consequential on the repeal of section 105(3) of that Act (which makes provision about judicial oaths, now provided for by section 19).

206. Paragraphs 7, 8 and 9 make amendments to the Law Commission Act 1965 consequential on the establishment of an independent Northern Ireland Law Commission.

207. Paragraphs 10, 11 and 12 make minor amendments to the Administration of Justice Act 1973, including provision for the salaries of judges of the Supreme Court in Northern Ireland to be paid out of the Consolidated Fund of Northern Ireland. Paragraph 12 provides that the power of the Lord Chancellor to declare a higher judicial office vacant where the holder of that office is so incapacitated that he cannot resign it shall not be exercisable in respect of judges to whom section 7 of this Act applies.

208. Paragraph 13 amends the manner in which a judge of the Supreme Court in Northern Ireland may resign, by providing that the Lord Chief Justice or a Lord Justice of Appeal may tender a letter of resignation to her Majesty, and a judge of the High Court may write to the First Minister and deputy First Minister.

209. Paragraph 15 amends the Criminal Appeal (Northern Ireland) Act 1980 to provide for appeals against sentence following proceedings for breach of a youth conference order (see Schedule 10).

210. Paragraphs 16 to 28 amend the 1981 Order. Paragraph 17 is consequential on the repeal of paragraph 5 of Schedule 1 to the 1981 Order (which provided for legal aid for proceedings before a coroner). Paragraph 18 provides that advice and assistance under the 1981 Order will not be available for proceedings in respect of which exceptional legal aid is available under a direction given by the Lord Chancellor (provided for by section 76). This replicates the existing restriction on the availability of advice and assistance when a civil aid certificate is in force.

211. Paragraphs 19 and 20 are consequential on the repeal of Article 10(6) of the 1981 Order (position of providers and parties where services are given by way of legal aid) and the re-enactment of the same provisions (provided for by paragraph 20). Paragraph 21 amends the effect of the indemnity granted in relation to contributions to include contributions arising from a grant of exceptional legal aid (provided for by section 76).

212. Paragraphs 24 to 26 make amendments consequential on the provision of free legal aid for diversionary youth conferences (see section 61).

213. Paragraph 40 amends the definition of “place of safety” in the Mental Health (Northern Ireland) Order 1986 to include any young offenders centre and any secure accommodation provided by the Health and Social Services Boards in Northern Ireland.

214. The amendment in paragraph 41 to Schedule 3 to the Criminal Justice Act 1988 is consequential on section 41(5) which allows the Director of Public Prosecutions for Northern Ireland (instead of the Attorney General for Northern Ireland) to make an appeal where it is thought that a sentence handed down by a court is unduly lenient .

215. Paragraphs 42 to 46 amend the Police and Criminal Evidence (Northern Ireland) Order 1989 (the “1989 Order”). Paragraph 43 adds definitions of “juvenile justice centre”, “secure accommodation” and “young offenders centre”, which are referred to in the substantive amendments made by paragraphs 44 to 46 of Schedule 12 to the 1989 Order. Article 19(1)(d) of that Order provides that a constable may enter premises without a search warrant for the purposes of recapturing a person who is unlawfully at large from specified custodial institutions. Paragraph 45adds secure accommodation (used for detaining a child who is subject to a custody care order) to that list. Article 39 of the 1989 Order provides for the detention after arrest of juveniles in a place of safety. Paragraph 46 extends the definition of “place of safety” to include young offenders centres and secure accommodation.

216. Paragraph 53 amends Schedule 2 to the Juries Order 1996 to include court security officers, the Director and Deputy Director of the Public Prosecution Service and members of staff of the Public Prosecution Service and the Chief Inspector of Criminal Justice and his staff within the list of persons who are ineligible for jury service.

217. Paragraph 55(2) provides that reparation orders and community responsibility orders are added to the definition of a “community order” for the purposes of the1996 Order. Sub-paragraph (4) provides that an order sending an offender to secure accommodation is included in the definition of “custodial sentence”.

218. Paragraph 56 amends Article 9(3) of the 1996 Order (procedural requirements for community orders) to include “reparation order” and “community responsibility order” so that those provisions apply to these new orders. As a consequence of the creation of custody care orders (provided for by section 56) the definition of orders on which restrictions are imposed by Article 18(1) is extended to include a custody care order (paragraph 57).

219. Paragraph 58 adds references to a youth conference order to Article 19(3) of the 1996 Order. This has the effect that a court is not prevented from passing a custodial sentence if the offender refuses to consent to a youth conference order.

220. Paragraph 61 amends section 42(3) of the Police (Northern Ireland) Act 1998 to include the Chief Inspector of Criminal Justice in the list of those who must receive a copy of a report by Her Majesty’s Inspector of Constabulary on the Police Service of Northern Ireland.

221. Paragraphs 63 and 64 designate the Chief Inspector of Criminal Justice and the Law Commission for the purposes of sections 75 and 76 of the Northern Ireland Act 1998 respectively.

222. The amendments set out in paragraph 65 of the Schedule are consequent on making the role and functions of the Advocate General for Northern Ireland an “excepted” matter (see commentary on section 27 above). They exclude the Advocate General from the list of justice matters in the reserved field (as set out in Schedule 3 to the Northern Ireland Act 1998).

223. Paragraph 67 adds a number of definitions to the 1998 Order consequential on the provision made by Part 4 of this Act.

224. Paragraph 68 amends Article 8(3) and (4) of the 1998 Order to provide that if a child under 14 cannot be released before he appears in court, he must be held in secure accommodation rather than in a juvenile justice centre.

225. Paragraph 69 amends Article 13 (remand in custody) of the 1998 Order. Children under 14 must be held in secure accommodation. Those who are 14 but not yet 17 must be held in a juvenile justice centre, unless, in the case of a child who has attained the age of 15, the court considers he is likely to injure himself or someone else, in which case he must be held in a young offenders centre. Those children who have attained the age of 17 must be held in a young offenders centre unless two conditions are met. These are that, when he was first remanded in custody, he was not yet 17 years and 6 months old and that he has not had a custodial sentence passed on him in the previous two years. If these conditions are met the court must send him to a juvenile justice centre if it thinks that such an order is in the child’s best interests.

226. Paragraph 70 adds references to youth conference orders to Article 30(3) of the 1998 Order. This ensures that the youth court retains jurisdiction to deal with breach of such orders, or to amend or discharge them, even though the offender has attained the age of 18 since the order was made.

227. Paragraph 71 amends Article 37(4) (requirements of attendance centre orders) of the 1998 Order. This brings the language of the 1998 Order into line with Article 14 of the 1996 Order.

228. Paragraph 72 amends Article 39(1) of the 1998 Order to provide, firstly, that juvenile justice centre orders cannot be made in respect of an offender who has not attained the age of 14 (for such offenders a custody care order is available) and, secondly, to clarify for which offences such orders are not appropriate.

229. Paragraph 73 amends Article 41 of the 1998 Order. It omits reference to breach of juvenile justice centre orders by children under 14 as they will no longer be subject to such orders. It also provides that where a court orders an offender to be detained for breach of a juvenile justice centre order he will be held in a juvenile justice centre if he has not yet attained the age of 17 and a young offenders centre if he has, unless certain conditions are satisfied. Those conditions are that the offender is 17 but will not be 18 within the next 30 days (the maximum period for which he can be detained for breach) and that he has not had a custodial sentence (other than the juvenile justice centre order in respect of which he is in breach) in the previous two years. If these conditions are met and the court thinks it is in the child’s best interest to be detained in a juvenile justice centre, he will be detained in such a place. It also provides that where a fine is imposed for breach of the supervision requirements of a juvenile justice centre order, the court must (if the child is under 16) or may (if the child has attained that age) order that the fine be paid by the child’s parent or guardian instead of the child.

230. Paragraph 74 amends Article 44(1) of the 1998 Order to remove the obligation on a court to revoke a juvenile justice centre order on subsequent conviction unless it intends to impose a further custodial sentence. This corrects an anomaly in the 1998 Order where, if the child was in custody, the court had to revoke that sentence even if only to pass a non-custodial sentence.

231. Paragraph 75 amends Article 56(5)(a) of the 1998 Order to provide that the Secretary of State may by order provide that the functions of the Juvenile Justice Board shall include power to make and give effect to schemes for children who are subject to reparation orders, community responsibility orders and youth conference plans.

232. Paragraphs 76 to 79 amend the Northern Ireland Act 2000. During any period in which section 1 of that Act is in force (when devolved government in Northern Ireland is suspended) no person may continue to hold office or be appointed as Attorney General for Northern Ireland. On restoration, the Attorney General who held office immediately before suspension would resume office, unless his term of appointment had expired, in which case a new Attorney General would be appointed in accordance with section 22.

233. Paragraph 81 amends the Regulatory Reform Act 2001 to require consultation with the Northern Ireland Law Commission before an order under section 1 of that Act can be made.