CHAPTER 13:
Northern Ireland temporary provisions
This chapter sets out the options for a limited range of provisions to be available in Northern Ireland while a terrorist threat remains and until lasting peace is established. The Government hopes it will not be necessary to enact any temporary Northern Ireland provisions. It will make a judgement at the appropriate time, and taking into account the prevailing level of terrorist threat, as to which additional provisions, if any, need be enacted. Views are particularly sought on:
- how the Diplock trial system and attendant arrangements might be gradually phased out;
- the proposal to adopt the PACE standard for admissibility of confession evidence in terrorist cases.
Introduction
13.1 The Government believes that the prospects for the creation of a normal peaceful society in Northern Ireland have been greatly enhanced by the political will as exemplified in the Belfast Agreement, and reinforced by the support which the people of Northern Ireland have given to the Agreement. It is the Government's objective progressively to transform the security environment as appropriate as part of the implementation of the Agreement as a whole. In such circumstances the Government's position is that there will be no need for any temporary Northern Ireland specific powers. The Government has already taken steps to improve the safeguards in the existing EPA. For example, provision has been made for the introduction of audio-recording of police interviews with terrorist suspects, and for a code of practice to be made governing audio-recording; and following changes made in April this year, more offences may be certified out of the list of scheduled offences at the Attorney General's discretion, thus allowing them to be tried by jury in the ordinary way. Furthermore, the power of detention without trial (internment) has been removed.
13.2 The Government continues to respond to changing circumstances in Northern Ireland. However, not all terrorist groups which exist in Northern Ireland have declared ceasefires; and some have yet to convince the Government they are observing a full and unequivocal ceasefire. Where appropriate, the Government has eased certain provisions. But it has also, where necessary, fine tuned provisions to make them more effective and more clearly targeted against the remaining terrorist threat. The Government will continue to respond positively in the future in line with its commitments under the Belfast Agreement. Progress towards fulfilling those commitments will depend on political progress and on events on the ground.
Possible temporary provisions for Northern Ireland
13.3 It is the Government's hope that it will not be necessary to enact any temporary Northern Ireland specific provisions. However, the Government has a duty to ensure that the community is protected from terrorist attack, from whatever quarter, and that the security forces have the powers they need to counter any threat. If there is a continuing threat from some groups in Northern Ireland, it may be necessary to include in the new UK-wide legislation a Part containing a limited range of powers, temporary in nature and applying only in Northern Ireland, which would continue in force until lasting peace is established there and the Army's presence is no longer required in support of the police. If enacted, the temporary provisions would be subject to annual renewal; and any provisions that were needed initially would be phased out, individually if appropriate, as soon as the security situation allows. This chapter sets out options for what those provisions might be under a variety of future circumstances, and invites views.
Scheduled offences and non-jury courts
13.4 In Northern Ireland terrorist and security-related offences are known as scheduled offences and are listed at Schedule 1 to the EPA. Most of the offences there listed can be certified out of the Schedule at the Attorney General's discretion. In practice the Attorney General certifies out an offence if he is satisfied in the individual case that it was not terrorist or security-related, although this test is not specified in statute. Where a scheduled offence is certified out, it is treated as an ordinary criminal offence and subject to normal procedures. Otherwise, the offence is tried by a single judge sitting without a jury. These arrangements have their origin in Lord Diplock's 1972 Report, (Report of the Commission to consider legal procedures to deal with terrorist activities in Northern Ireland: Cm 5185) which found that the jury system as a means of trying terrorist crime in Northern Ireland was under strain and in danger of breaking down.
13.5 The Government is committed to move as quickly as circumstances allow to jury trial for all offences. Lord Lloyd advocated a return to jury trial but recognised that it could not be achieved overnight. He pointed out that, even against a background of lasting peace, cases of terrorist-related offences committed during the campaign of violence would continue to come before the courts; and it may take some time to re-establish confidence in the jury system. The Government agrees and accepts the continued need for Diplock type trials for a transitional period.
13.6 Along with the Diplock arrangements and the scheduled offences there exist a number of attendant arrangements and provisions. For example, in the case of scheduled offences, bail applications must be dealt with by a High Court Judge or a Judge of the Court of Appeal, while in ordinary criminal cases bail applications are dealt with by a Resident Magistrate. This provision owes its origin to the fact that prior to its introduction, when magistrates were dealing with bail applications in terrorist cases, the courts became crowded with persons who tried to intimidate the Court and created a threatening atmosphere. Restrictions are placed on the availability of bail in terrorist cases. Under the ordinary law, however, there is a right to bail, subject to certain exceptions, as opposed to a power to grant bail.
13.7 Special provisions apply to confession evidence in terrorist cases, which are not as strict as the equivalent PACE provisions, so in theory a confession could be admitted under the EPA standard which would not be admissible under PACE. And special provisions apply in respect of the onus of proof in relation to offences of possession: where it is established that the item and the accused were both present in any premises at the relevant time, or that the item was in premises of which the accused was the occupier, the court may accept the fact proved as sufficient evidence of possession, unless the accused can prove he had no knowledge or control of the item.
13.8 The Government would welcome any suggestions aimed at gradually phasing out the Diplock system, including the scheduled offences and the attendant arrangements, for example, for bail and for onus of proof in possession cases. The Government will be considering in consultation with the practitioners where it might be possible to implement any transitional measures ahead of the proposed new legislation. It would welcome suggestions which would assist in the phasing out of the Diplock system, for example, witness and jury protection schemes, and how such schemes might work in practice. On the matter of confession evidence, the Government notes Lord Lloyd's conclusion that the argument for maintaining the EPA standard is weakened by the creation of the PACE standard and it proposes that the PACE standard should apply to all criminal offences, including terrorist offences. Views are invited.
Possible additional powers for the police and others, and for the Secretary of State
13.9 The Government restates its commitment to establishing a normal framework of law in Northern Ireland. That means where possible aligning the various powers of arrest, entry, search and seizure so that as far as possible police forces across the United Kingdom will operate on the basis of comparable powers - see chapters 9 and 10. How far it is possible to achieve such uniformity will depend on the prevailing level of threat; the Government will make a judgement at the appropriate time as to what additional powers if any might be required.
13.10 A range of options is available depending on the circumstances on the ground. If, as the Government hopes and expects, the scenario is one in which the threat of terrorism has diminished to the point where no additional powers are necessary, then none will be introduced. However, against a worst case scenario of renewed widespread and sustained terrorist activity, it is likely the Government would decide to introduce, at least initially, the full range of temporary provisions currently available. These would include:
the Army powers (see paras 13.12 to 13.15);
a power, equivalent to that currently in section 25 of the EPA, for a member of the security forces to stop and question any person as to identity, movements or knowledge of any recent incident endangering life;
powers broadly equivalent to those currently in section 20(4) of the EPA, to enable the security forces, when carrying out a search of premises (for any type of terrorist material), to be able to restrict the movement of persons present;
powers, equivalent to those currently in section 23 of the EPA, for a member of the security forces to enter premises to search for persons believed to be unlawfully detained in circumstances where their life is in danger (the EPA provision is wider than its PACE equivalent, which permits entry and search for the purpose of saving life or limb);
a power, equivalent to that in section 22 of the EPA, for appointed explosives inspectors to enter without warrant a non-dwelling or to stop a person in a public place to search for explosives;
powers equivalent to those in sections 26 and 27 of the EPA to enable any member of the security forces to enter and interfere with rights of property and with highways; and to enable the Secretary of State to direct the closure etc of roads. (These powers have been used in the past to protect security force bases, to secure sectarian interfaces; to set up vehicle checkpoints; to requisition land for security purposes; and to allow helicopters to land in fields.);
a power, equivalent to that currently in section 49 of the EPA, to enable the Secretary of State to make regulations for the preservation of the peace and the maintenance of order. (This power has been used in the past to create vehicle control zones.);
a power, equivalent to that currently in section 50 of the EPA to extend the grounds on which the Secretary of State may reject an application for a licence to manufacture explosives and magazines to include the interests of national security and the protection of public safety;
a power, equivalent to that in section 35 of the EPA to make it an offence for any person, without lawful authority or reasonable excuse, the proof of which lies on him, to wear in a public place or dwelling house other than his own, any hood or mask which conceals his identity or features.
13.11 In making its judgement at the appropriate time, the Government's aim will be to ensure that any additional Northern Ireland powers which it is necessary to enact are kept to a minimum and that they are governed by tightly drawn statutory codes of practice. The existing arrangements in Northern Ireland for the payment of compensation in respect of property lawfully taken, occupied, damaged or destroyed by members of the security forces or other authorised persons will be preserved as necessary. And in line with the proposed temporary disapplication in Northern Ireland of the need to obtain a warrant for the use of common police powers (see Chapter 10), the Government envisages that there would be no requirement for a warrant for the use of any additional Northern Ireland powers.
The Army powers
13.12 In a scenario where an Army presence continues to be necessary in Northern Ireland to support the police, the Government's position is that members of HM Forces should retain the powers currently conferred on them by the EPA.
13.13 These include the power while on duty to arrest without warrant and detain for not more than 4 hours anyone they have reasonable grounds to suspect is committing, has committed or is about to commit any offence. In making such an arrest a soldier would need to state only that he was effecting the arrest as a member of HM Forces. For the purpose of making such an arrest he would have the power to search any premises or other place and to seize and to hold for up to 4 hours anything which he reasonably suspected was being used for terrorist purposes.
13.14 A member of HM Forces on duty should also have the powers conferred on a police constable to stop and search; to stop and question; to enter and search; to examine documents; to search for persons unlawfully detained; and to interfere with rights of property and highways.
13.15 In short, the Government proposes, while military support of the police remains necessary, to maintain the Army's existing powers; no new powers would be added. For the first time, however, the use of the powers would be subject to a comprehensive statutory code of practice; and while the Army's operational role remained there would continue to be a requirement to provide for the post of Independent Assessor of Military Complaints Procedures (see section 51 of the EPA).
Provisions recommended for retention/transfer to the ordinary criminal law, if suitable alternative legislative vehicles can be identified
13.16 Part V of the EPA provides for the regulation of private security services in Northern Ireland; it aims to prevent paramilitary/criminal organisations from setting up security firms in order to raise funds, or infiltrating security firms to gain information of use to them. The Government sees merit in the provisions and wishes to retain them, but to transfer them to the ordinary criminal law if possible.
13.17 Other provisions currently in the EPA which the Government wishes to retain and suggests might be transferred to the ordinary law are: the provisions to enable time limits to be set up for the stages of proceedings leading up to trial; and the provision which fixes a maximum period for remands in custody after charging.
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