Justice (Northern Ireland) Act 2004

The judiciaryN.I.

1Transfer to Lord Chancellor of functions relating to Judicial Appointments CommissionN.I.

The Justice (Northern Ireland) Act 2002 (c. 26) (“the 2002 Act”) is amended as set out in Schedule 1 for the purpose of transferring to the Lord Chancellor functions exercisable by the First Minister and deputy First Minister, acting jointly, in relation to the Northern Ireland Judicial Appointments Commission.

2Membership of the CommissionN.I.

(1)In section 3 of the 2002 Act for subsection (8) (lay members of the Commission to be representative of the community in Northern Ireland) substitute—

“(8)It is the duty of—

(a)the Lord Chancellor, and

(b)those responsible for making nominations under subsection (5)(a) and (b),

to make such arrangements in connection with the exercise of their functions under this section as will, so far as is practicable, secure that the membership of the Commission is reflective of the community in Northern Ireland.”

(2)In Schedule 2 to the 2002 Act in paragraph 1 (tenure of judicial members) for sub-paragraph (1) substitute—

“(1)Subject as follows, a judicial member of the Commission holds office for the period specified in his appointment (or re-appointment).

(1A)A person may not be appointed as a judicial member for more than five years at a time; and the aggregate period for which a person may be a judicial member by virtue of his holding any one of the judicial offices mentioned in section 3(6) must not exceed ten years.”

3Duty of Commission to secure judiciary reflective of the communityN.I.

F1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

4Appointment of Lord Chief Justice and Lords Justices of AppealN.I.

F2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

5Removal or suspension from listed judicial officesN.I.

F3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

ProsecutorsN.I.

6Duty of Director of Public Prosecutions to refer certain matters to Police OmbudsmanN.I.

(1)Section 55 of the Police (Northern Ireland) Act 1998 (c. 32) (referral of matters to Ombudsman) is amended as set out in subsections (2) to (5).

(2)In subsection (1) (power of Policing Board, Director or Secretary of State to refer certain matters) omit the words “, the Director” (wherever they occur).

(3)After subsection (4) insert—

“(4A)The Director shall refer to the Ombudsman any matter which—

(a)appears to the Director to indicate that a police officer—

(i)may have committed a criminal offence; or

(ii)may, in the course of a criminal investigation, have behaved in a manner which would justify disciplinary proceedings; and

(b)is not the subject of a complaint,

unless it appears to the Director that the Ombudsman is already aware of the matter.

(4B)In subsection (4A) “criminal investigation” has the same meaning as in Part 2 of the Criminal Procedure and Investigations Act 1996 (c. 25).”

(4)In subsection (5) (power of Ombudsman to investigate matters referred under subsection (4)) after “(4)” insert “ , or (4A) ”.

(5)In subsection (7) (duty on Ombudsman to notify outcome of criminal or disciplinary proceedings) omit “, the Director”.

(6)In section 64(2A)(b) of the Police (Northern Ireland) Act 1998 (Ombudsman not to investigate matter referred under section 55(1), (2) or (4) if it took place more than the prescribed period before the date of referral) for “or (4)” substitute “ , (4) or (4A) ”.

7Influencing a prosecutorN.I.

After section 32 of the 2002 Act insert—

“32AInfluencing a prosecutor

(1)A person commits an offence if, with the intention of perverting the course of justice, he seeks to influence the Director, the Deputy Director or a Public Prosecutor in any decision as to whether to institute or continue criminal proceedings.

(2)A person commits an offence if, with the intention of perverting the course of justice, he seeks to influence a barrister or solicitor to whom the Director has under section 36(2) assigned the institution or conduct of any criminal proceedings in any decision as to whether to institute or continue those proceedings.

(3)A person guilty of an offence under this section is liable—

(a)on summary conviction, to a fine not exceeding the statutory maximum or to imprisonment for a term not exceeding six months, or to both, and

(b)on conviction on indictment, to imprisonment for a term not exceeding five years or to a fine, or to both.

(4)Proceedings for an offence under this section shall not be instituted without the consent of the Director.”

Criminal justice organisationsN.I.

8Guidance for criminal justice organisations on human rights standardsN.I.

(1)The Attorney General for Northern Ireland shall issue, and as he thinks appropriate from time to time revise, guidance to organisations to which this section applies on the exercise of their functions in a manner consistent with international human rights standards relevant to the criminal justice system.

[F4(1A)Before issuing or revising any guidance under this section, the Attorney General for Northern Ireland shall consult the Advocate General for Northern Ireland.]

(2)In the exercise of its functions, such an organisation shall have regard to any guidance for the time being in operation under this section; but this does not affect the operation, in relation to any such organisation, of section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act in a way incompatible with a Convention right).

(3)Any guidance issued or revised under this section—

(a)shall be published in such manner as the Attorney General for Northern Ireland thinks appropriate;

(b)shall be laid before [F5the Northern Ireland Assembly]; and

(c)shall not come into operation until the Attorney General for Northern Ireland by order so provides.

[F6(3A)Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the purposes of subsection (3)(b) in relation to the laying of any guidance as it applies in relation to the laying of a statutory document under an enactment.]

(4)This section applies to the following organisations—

(a)the Public Prosecution Service for Northern Ireland,

(b)F7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(c)the Probation Board for Northern Ireland,

(d)the Police Ombudsman for Northern Ireland,

(e)the [F8Department of Justice], but only in respect of F9. . . —

[F10(ai)the Department's functions mentioned in section 69(1) of the Judicature (Northern Ireland) Act 1978 M1,]

(i)[F11functions exercised by] the Northern Ireland Prison Service,

(ii)[F11functions exercised by] the Youth Justice Agency,

(iii)[F11functions exercised by] Forensic Science Northern Ireland,

(iv)[F11functions exercised by] the State Pathologist’s Department, or

(v)[F11functions exercised by] the Compensation Agency;

and accordingly references in this section to the functions of an organisation are, in the case of the [F8Department of Justice], references to the functions mentioned in paragraph (e).

(5)The Attorney General for Northern Ireland may by order amend subsection (4) 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

(c)altering the description of an organisation;

and an order under this subsection may make appropriate consequential amendments in this section or in any other enactment (whenever passed or made).

[F12(5A)Before making an order under subsection (3)(c) or (5), the Attorney General for Northern Ireland shall consult the Advocate General for Northern Ireland.]

(6)In section 52 of the Police (Northern Ireland) Act 2000 (c. 32) (code of ethics for police officers) after subsection (2) insert—

“(2A)In revising the code the Chief Constable and the Board shall also have regard to any guidance for the time being in operation under section 8 of the Justice (Northern Ireland) Act 2004.”

(7)In section 37 of the 2002 Act (code of practice for prosecutors) after subsection (5) insert—

“(5A)In preparing or making alterations to a code the Director must also have regard to any guidance for the time being in operation under section 8 of the Justice (Northern Ireland) Act 2004.”

(8)Nothing in this section requires the Public Prosecution Service for Northern Ireland to have regard to so much of any guidance for the time being in operation under this section as is inconsistent with a provision of a code of practice issued under section 37 of the 2002 Act.

(9)In Schedule 7 to the 2002 Act (functions of Advocate General for Northern Ireland) after paragraph 7 insert—

“7AIn section 8 of the Justice (Northern Ireland) Act 2004 (guidance for criminal justice organisations on human rights standards)—

(a)after subsection (1) insert—

“(1A)Before issuing or revising any guidance under this section, the Attorney General for Northern Ireland shall consult the Advocate General for Northern Ireland.”;

(b)after subsection (5) insert—

“(5A)Before making an order under subsection (3)(c) or (5), the Attorney General for Northern Ireland shall consult the Advocate General for Northern Ireland.””

Textual Amendments

Commencement Information

I1S. 8 wholly in force at 12.4.2010; s. 8 not in force Royal Assent see s. 19; s. 8(1)-(8) in force at 1.2.2006 by S.R. 2005/282, art. 5; s. 8(9) in force at 12.4.2010 by S.R. 2010/114, art. 2(a)

Marginal Citations

9The Juvenile Justice BoardN.I.

(1)Section 46 of the 2002 Act (organisations subject to inspection by the Chief Inspector) is amended as set out in subsections (2) to (4) in consequence of the dissolution of the Juvenile Justice Board and the establishment of the Youth Justice Agency.

(2)In subsection (1) for paragraph (g) substitute—

“(g)the Youth Justice Agency;”.

(3)In subsection (1)(h) omit “(other than the Juvenile Justice Board)”.

(4)In subsection (4) for “Juvenile Justice Board” substitute “ Youth Justice Agency ”.

(5)The following provisions (which are spent or of no practical utility in consequence of the dissolution of the Juvenile Justice Board) shall cease to have effect—

(a)the Malone and Whiteabbey Training Schools Act (Northern Ireland) 1956 (c. 4 (N. I.));

(b)in the Criminal Justice (Children) (Northern Ireland) Order 1998 (S.I. 1998/1504 (N.I. 9))—

(i)Article 56; and

(ii)Article 57(2);

(c)in Schedule 1 to the Commissioner for Children and Young People (Northern Ireland) Order 2003 (S.I. 2003/439 (N.I. 11)) in paragraph 13 the words “The Juvenile Justice Board and” and the word “other”.

BailN.I.

10Prosecution right of appeal against grant of bail by magistrates' courtN.I.

(1)Where a magistrates' court grants bail to a person who is charged with, or convicted of, an offence punishable by imprisonment, the prosecution may appeal to the High Court against the granting of bail.

[F13(1A)Where a magistrates' court grants bail to a person in connection with extradition proceedings, the prosecution may appeal to the High Court against the granting of bail.]

(2)Subsection (1) applies only where the prosecution is conducted—

(a)by or on behalf of the Director of Public Prosecutions, or

(b)on behalf of the Police Service of Northern Ireland (whether by a member of that Service or any other person).

(3)An appeal under subsection (1) [F14or (1A)] may be made only if—

(a)the prosecution made representations that bail should not be granted, and

(b)the representations were made before it was granted.

(4)Where the prosecution wishes to exercise the right of appeal under subsection (1) [F15or (1A)], oral notice of appeal shall be given to [F16the court which has granted bail] at the conclusion of the proceedings in which bail has been granted and before the release from custody of the person concerned.

(5)Written notice of appeal shall thereafter be served on [F17the court which has granted bail] and the person concerned within two hours of the conclusion of such proceedings.

(6)On receipt from the prosecution of oral notice of appeal from its decision to grant bail, [F17the court which has granted bail] shall remand in custody the person concerned, until the appeal is determined or otherwise disposed of.

(7)Where the prosecution fails, within the period of two hours mentioned in subsection (5), to serve one or both of the notices required by that subsection, the appeal shall be deemed to have been disposed of.

(8)The hearing of an appeal under subsection (1) [F18or (1A)] against a decision of the F19. . . court to grant bail shall be commenced within 48 hours, excluding weekends, Christmas Day, Good Friday and a bank holiday, from the time when oral notice of appeal is given.

(9)An appeal by the prosecution under this section shall be by way of re-hearing, and on such an appeal the High Court may—

(a)remand the person concerned in custody, or

(b)grant bail subject to such conditions (if any) as it thinks fit.

(10)No appeal lies against the decision of the High Court on an appeal under this section.

(11)In relation to a person under the age of 21, the reference in subsection (1) to an offence punishable by imprisonment is to be read as a reference to an offence which would be so punishable in the case of a person over that age.

[F20(12)In this section—

  • “extradition proceedings” means proceedings under the Extradition Act 2003;

  • “magistrates' court” and “court”, in relation to extradition proceedings, mean a resident magistrate designated in accordance with section 67 or section 139 of the Extradition Act 2003;

  • “prosecution”, in relation to extradition proceedings, means the person acting on behalf of the territory to which extradition is sought.]

Textual Amendments

F19Words in s. 10(8) omitted (15.1.2007) by virtue of Police and Justice Act 2006 (c. 48), ss. 42, 53, Sch. 13 para. 29(6)(b) ; S.I. 2006/3364, art. 2(d)(e) (and those words repealed (prosp.) by Sch. 15 Pt. 4 of that amending Act)

[F2110AProsecution right of appeal against grant of bail by county court judge in extradition proceedingsN.I.

(1)Section 10 applies to the granting of bail by a county court judge in extradition proceedings as it applies to the granting of bail by a magistrates' court in such proceedings; and references in that section to a magistrates' court shall be construed accordingly.

(2)In this section “extradition proceedings” has the same meaning as in section 10.]

Textual Amendments

11Bail under section 67 of the Terrorism Act 2000N.I.

F22. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

F22S. 11 ceased to have effect (from the end of 31.7.2007) by virtue of Justice (Northern Ireland) Act 2004 (c. 4), s. 11(4)(a) (as amended by Terrorism (Northern Ireland) Act 2006 (c. 4), ss. 1(5), 5(3)) (with savings in S.I. 2007/2259, art. 4, Sch. para. 2)

12Bail to which Part II of the Criminal Justice (Northern Ireland) Order 2003 appliesN.I.

(1)Part II of the Criminal Justice (Northern Ireland) Order 2003 (S.I. 2003/1247 (N.I. 13)) (bail grantable otherwise than under section 67 of the Terrorism Act 2000 (c. 11)) is amended as set out in subsections (2) to (4).

(2)In Article 4(2) (definition of “surrender to custody”) at the end add “or

(c)into the custody of the governor of a prison at the time and place for the time being appointed for him to do so.”

(3)In Article 5 (offence of absconding by person released on bail) for paragraph (3) substitute—

“(3)A person guilty of an offence paragraph (1) or (2) shall be liable—

(a)on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum or to both;

(b)on conviction on indictment, to imprisonment for a term not exceeding 3 years or to a fine or to both.”

(4)In Article 6 of that Order (arrest for absconding or breaking conditions of bail)—

(a)in paragraph (3) for “a duty to surrender to custody” substitute “ a duty to surrender into the custody of a court ”;

(b)after paragraph (3) insert—

“(3A)If, on an application made by a constable, a justice of the peace is satisfied that—

(a)there are reasonable grounds for believing that a person who is liable to arrest under paragraph (3) is to be found on the premises specified in the application; and

(b)any of the conditions specified in paragraph (3B) is satisfied,

he may issue a warrant authorising a constable to enter those premises (if need be by force) and search them for the purpose of arresting that person.

(3B)The conditions mentioned in paragraph (3A) are—

(a)that it is not practicable to communicate with any person entitled to grant entry to the premises;

(b)that entry to the premises will not be granted unless a warrant is produced;

(c)that the purpose of a search of the premises may be frustrated or seriously prejudiced unless a constable arriving at the premises can secure immediate entry to them.”; and

(c)after paragraph (5) insert—

“(5A)Paragraphs (4) and (5) do not require a person to be brought before a magistrates' court at any time when he is in hospital and is not well enough.”

(5)In Article 29(1) of the Magistrates' Courts (Northern Ireland) Order 1981 (S.I. 1981/1675 (N.I. 26)) (right to claim trial by jury for summary offence if maximum term of imprisonment exceeds six months, subject to specified exceptions) after sub-paragraph (g) add—

“(h)Article 5(1) or (2) of the Criminal Justice (Northern Ireland) Order 2003 (absconding by person admitted to bail)”.

(6)Subsection (3) has no effect in relation to offences committed before it comes into force.

Transfer of prisonersN.I.

13Transfer of prisonersN.I.

(1)Schedule 1 to the Crime (Sentences) Act 1997 (c. 43) (transfer of prisoners within the British Islands) is amended as follows.

(2)In paragraph 1 (transfer of prisoners: general) after sub-paragraph (2) insert—

“(2A)If it appears to the Secretary of State that—

(a)a person remanded in custody in Northern Ireland in connection with an offence, or

(b)a person serving a sentence of imprisonment in Northern Ireland;

should be transferred to another part of the United Kingdom in the interests of maintaining security or good order in any prison in Northern Ireland, the Secretary of State may make an order for his transfer to that other part, there to be remanded in custody pending his trial or, as the case may be, to serve the whole or any part of the remainder of his sentence, and for his removal to an appropriate institution there.”

(3)In paragraph 5(1) (conditions of transfer) after “this Part” insert “ (other than a transfer under paragraph 1(2A)) ”.

(4)After paragraph 5 insert—

“5A“Conditions of transfer under paragraph 1(2A)

(1)A transfer under paragraph 1(2A) shall have effect subject to—

(a)such a condition as is mentioned in paragraph 6(1)(a); and

(b)such other conditions (if any) as the Secretary of State may think fit to impose.

(2)Such a condition as is mentioned in paragraph 6(1)(a) shall not be varied or removed.

(3)A condition imposed under sub-paragraph (1)(b) may be varied or removed at any time.”

(5)In paragraph 6—

(a)in sub-paragraph (2)(a) after “1(1)(a) or (2)(a)” insert “ or (2A)(a) ”;

(b)in sub-paragraph (2)(b) after “1(1)(b) or (2)(b)” insert “ or (2A)(b) ”.

(6)In paragraph 12—

(a)in sub-paragraph (1) after “1(1)(a)” insert “ or (2A)(a) ”;

(b)in sub-paragraph (2) after “1(1)(b)” insert “ or (2A)(b) ”.

(7)In paragraph 13—

(a)in sub-paragraph (1) after “1(1)(a)” insert “ or (2A)(a) ”;

(b)in sub-paragraph (2) after “1(1)(b)” insert “ or (2A)(b) ”.

Amendment of section 103 of Terrorism Act 2000N.I.

14Amendment of section 103 of Terrorism Act 2000N.I.

In section 103 of the Terrorism Act 2000 (c. 11) (collection of information about certain persons) in subsection (2)(e) (full-time employee of the prison service in Northern Ireland) for “a full-time employee of” substitute “ employed in ”.

Arrest without warrantN.I.

15Arrest without warrant for offence of driving while disqualifiedN.I.

F23. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Textual Amendments

Court securityN.I.

16Court securityN.I.

Schedule 3 (which re-enacts with amendments sections 79 to 81 of the 2002 Act and makes further provision with respect to court security officers) shall have effect.

Right of barrister to enter into contract for the provision of his servicesN.I.

17Right of barrister to enter into contract for the provision of his servicesN.I.

(1)Any rule of law which prevents a barrister from entering into a contract for the provision of his services as a barrister is abolished.

(2)Nothing in subsection (1) prevents the General Council of the Bar of Northern Ireland from making rules (however described) which prohibit barristers from entering into contracts or restrict their right to do so.

SupplementaryN.I.

18RepealsN.I.

Schedule 4 contains repeals.

Commencement Information

I2S. 18 wholly in force at 12.4.2010; s. 18 not in force at Royal Assent see s. 19; s. 18 in force at 14.7.2004 for specified purposes by S.R. 2004/267, art. 2; s. 18 in force at 13.6.2005 for further specified purposes by S.R. 2005/282, art. 2; s. 18 in force for remaining purposes at 12.4.2010 by S.R. 2010/114, art. 2(b)

19CommencementN.I.

(1)The preceding provisions of this Act (with the Schedules) shall not come into force until such day as the Secretary of State may by order appoint.

(2)An order may appoint different days for different purposes.

Subordinate Legislation Made

P1S. 19 power exercised, different dates appointed for specified provisions as follows:

14.7.2004 by S.R. 2004/267, art. 2;

29.10.2004 by S.R. 2004/432, art. 2;

13.6.2005, 15.6.2005, 25.7.2005, and 1.2.2006 by S.R. 2005/282, arts. 2-5;

12.4.2010 by S.R. 2010/114, art. 2

20InterpretationN.I.

In this Act—

(a)“the 2002 Act” means the Justice (Northern Ireland) Act 2002 (c. 26), and

(b)any word or expression defined in section 88 of that Act has the same meaning in this Act as in that Act.

21Statutory rulesN.I.

(1)Any power to make an order or regulations under this Act is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)).

(2)No order shall be made under section 8(5) unless a draft of the order has been laid before, and approved by a resolution of, [F24the Northern Ireland Assembly].

[F25(2A)Section 41(3) of the Interpretation Act (Northern Ireland) 1954 applies for the purposes of subsection (2) in relation to the laying of a draft as it applies in relation to the laying of a statutory document under an enactment.]

(3)An order under section 8(3)(c) or 11(4) and regulations under paragraph 1(4) [F26, 5A(5)] or 6(1) of Schedule 3 shall be subject to [F27negative resolution (within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954)].

(4)An order or regulations made under this Act may include supplementary, incidental, transitional or consequential provisions.

Textual Amendments

F26Words in s. 21(3) inserted (6.4.2010) by Coroners and Justice Act 2009, (c. 25), {ss. 147(5)}, 182(4)(c) (with s. 180, Sch. 22 para. 44(2)); S.I. 2010/816, art. 2, Sch. para. 10

22ExtentN.I.

(1)Subject as follows, this Act extends only to Northern Ireland.

(2)Any amendment made by this Act has the same extent as the provision to which it relates.

23Short titleN.I.

This Act may be cited as the Justice (Northern Ireland) Act 2004.