58.This section and Schedule 9 define which offences qualify for special treatment because they are terrorist offences, or are offences related to the situation in Northern Ireland; it also provides for the concept “scheduled offence” and lists them; and gives the Attorney General discretion in certain cases to certify offences out of the list. The section also enables the Secretary of State to add, or remove, by affirmative resolution procedure any offences from Part I or II or amend Part I or II.
59.This section is concerned with committal proceedings in the Magistrates’ Court. It allows the prosecutor to request a preliminary inquiry in relation to scheduled offences. The provision was introduced in 1975 following the Gardiner Report, as a means of dealing with the problem of non-recognition of the court system by many defendants. In ordinary law a preliminary inquiry may be held only if the prosecutor requests it and the accused does not object. The effect of this section is that the alternative less expeditious preliminary investigation can be avoided. However, if the court considers that a preliminary investigation is in the interest of justice, it will not accede to the prosecution request for a preliminary inquiry. While committal proceedings remain part of the system, this section is useful as a means of keeping delays to a minimum.
60.This section provides that in the case of a scheduled offence bail applications must be dealt with by a High Court judge or a judge of the Court of Appeal. The 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 who created a threatening atmosphere. Under the ordinary law there is a presumption, as opposed to a discretion, that bail will be granted, subject to similar considerations.
61.This provision is peculiar to scheduled offences as a consequence of the special arrangements provided for them. The arrangements are such that the defendant may make application for legal aid directly to the High Court which is hearing the bail application rather than through the High Court to the Law Society, which is the procedure for legal aid in ordinary criminal cases.
62.This section provides that in the case of a scheduled offence, the maximum period of remand in custody will be 28 days. The justification for this dates back to Sir George Baker’s report in 1984 (Cm 9222, paragraphs 84–88). He reported that to bring a person charged with a scheduled offence before a magistrate every seven days was meaningless, especially since the magistrates’ court was precluded from granting bail in the majority of scheduled cases.
63.This section applies to a young person (aged 14 to 16 inclusive) on remand for a scheduled offence. It provides that for security purposes a young person may be held in prison, or elsewhere, which is usually the (secure) Young Offenders Centre, at Hydebank Wood. Under ordinary law, a young person would be remanded to a training school or remand home, although if a young person is certified by the court to be unruly or depraved, he may be committed to a remand centre or the Young Offenders Centre. Given the gravity of scheduled offences, insecure accommodation would not be appropriate. The Secretary of State may give a direction for special arrangements to be made if necessary to prevent the escape or to ensure the safety of the young persons or others.
64.This provides that time limits may be set for the stages of proceedings leading up to trial in scheduled cases. The provision is based on section 22 of the Prosecution of Offences Act 1985 (c. 23), which is in force in England and Wales and provides for custody time limits. The power has never been used, although an administrative time limit scheme has been operating since 1992.
65.The background to this provision is to be found in Sir George Baker’s 1984 Report, which was written at the time of the accomplice evidence (supergrass) trials, when court accommodation in Northern Ireland was under severe pressure. He recommended that provision should be made to enable the Lord Chancellor, after consultation with the Lord Chief Justice, to direct that trial on indictment of a scheduled offence should be held at the Crown Court sitting elsewhere than in Belfast.
66.This section provides for the mode of trial on indictment of scheduled offences to be by a court sitting without a jury – a “Diplock trial” – but with all the powers, authorities and jurisdiction of a jury court. It also provides that where both scheduled and non-scheduled offences are charged, the case is to be conducted as if all the offences charged were scheduled. The Diplock Court system dates back to 1972 when the Diplock Commission found that the jury system as a means of trying terrorist crime was under strain and in danger of breaking down. It highlighted the danger of perverse acquittals and intimidation of jurors. There is an unfettered right of appeal from the decision of the trial judge.
67.This section provides for the admissibility in evidence, in trials on indictment, of confessions made by persons charged with scheduled offences. It imposes an obligation on the court to exclude or disregard any evidence which has been obtained by subjecting the accused to torture or other improper treatment, or, in such a case, to order a fresh trial to be heard before a differently constituted court. It also provides for confession evidence to be excluded on the grounds of fairness to the accused or otherwise in the interests of justice.
68.This section makes provision for the onus of proof in trials on indictment for offences of possession of firearms and explosives. The provision is based on a recommendation made by the Diplock Commission; its effect is to permit the court to make assumptions as to the accused’s knowledge and control of items found on premises where he was present or occupied or used. The section is listed in section 118(5) so the defendant need only satisfy an evidential burden as to his lack of knowledge or control in order to displace the assumptions.
69.This section provides that the remission granted in respect of a sentence of imprisonment of 5 years or more for a scheduled offence, shall not exceed one third of the term. This provision was introduced in 1989 as a response to the increased violence of the time. Its effect is mitigated by the Northern Ireland (Remission of Sentences) Act 1995 (c. 47). That Act provides for the release on licence of those prisoners at the half-way point of sentence. Whilst on licence, such prisoners may be recalled up until the two-thirds point if they are thought likely to commit further offences or if their continued liberty would pose a threat to the safety of the public. From the two-thirds point on they may be granted remission.
70.This section applies to a person convicted of a scheduled offence committed during a period of remission for a previous conviction for which that person was sentenced to a custodial sentence of more than 1 year. In calculating the unexpired portion of a previous sentence it is important to note that time continues to run while a person is at large and so the actual effect of the section will depend on the time when the later offence is committed. This means that a person released on remission after serving say 2 years of a four year sentence who re-offended after the full term (4 years) of the sentence was expired will not be affected by the section, but a person who re-offended and was re-convicted after three years would be required to serve one year before starting his new sentence (the unexpired portion does not attract remission).
71.This section confers on the police a general power of arrest on reasonable suspicion, but without a warrant, for scheduled offences and other offences under these provisions It also provides an associated power of entry and search and a general power to seize anything which a constable has reasonable grounds to suspect may be used in the commission of a scheduled offence or a non-scheduled offence under this Act.
72.This section confers on a member of the Armed Forces general powers of arrest, entry, search and seizure without a warrant when there is reasonable grounds for suspecting the person of committing an offence or of being a terrorist. There is no equivalent power under the Police and Criminal Evidence (Northern Ireland) Order 1989 (SI 1989/1341) (“PACE(NI)”), since PACE(NI) does not apply to the Army. Subsection (6) provides that subsection (2) does not seek to legalise any act which would be unlawful under the Human Rights Act 1998.
73.See notes on Schedule 10 below.
74.This power is primarily intended for use by those who provide security at Court premises, since the powers of an explosives inspector under the Explosives Act 1875 (c. 17) do not extend to public places. Some members of the Health and Safety Executive also have powers under that Act to enable them to conduct annual inspections of licensed explosives factories and magazines.
75.This section allows a police officer or soldier to enter any premises to search for persons who are believed to be unlawfully detained in circumstances where their life is in danger. No warrant is necessary.
76.These sections allow the police and Army to examine any document or record found in the course of a search to ascertain whether it contains any information of a kind likely to be useful to terrorists. No warrant nor reasonable suspicion is required.
77.This section empowers the police and Army to stop and question persons as to their identity, movements or knowledge of any recent incident endangering life.
78.Sections 90 and 91 allow the police or army to enter premises to preserve the peace or maintain order, and allow a person on the authorisation of the Secretary of State to take possession of land etc for the preservation of peace or the maintenance of order. The common law power of the police is to enter in order to save life or limb, to prevent serious damage to property and to deal with or prevent a breach of the peace.
79.Section 92 allows for road closures. Powers to interfere with public highways are to be found under road traffic law (Road Traffic Act 1988 (c. 52)). There are no other provisions to permit the police to interfere with highways etc, although they may take specific action such as denying access to highways to prevent public disorder or a potential breach of the peace under the Public Order Act 1986 (c. 64).
80.While Lord Lloyd recommended that these provisions should be removed once lasting peace is established, the powers are still necessary in terms of land requisitioned for both RUC stations and security force bases and to provide protection for residents at sectarian interfaces where the fear of attack by opposing community factions remains real.
81.This section is used to make permanent road closures and to provide for town barriers. The condition is the preservation of the peace or the maintenance of order: reasonable suspicion is not required. Lord Lloyd recommends this provision be removed once lasting peace is established.
82.This section makes supplementary provision including allowing for vehicles to be stopped and searched.
83.This section enables the Secretary of State to make regulations for the preservation of the peace and the maintenance of order. The Northern Ireland (Emergency Provisions) Regulations 1975 and 1991 (SI 1975/2213 and 1991/1759) were made under the equivalent section of the EPA. The power is wide-ranging but regulations made under it are subject to the affirmative resolution procedure by Parliament.
84.The Office of the Independent Assessor of Military Complaints Procedures came into existence in its current form under the EPA 1996. Lord Colville had recommended it in his review of the 1978 and 1987 Acts and the appointment is discretionary, looking forward to a time when the Army will no longer patrol in support of the RUC. The Independent Assessor’s role is to review procedures for the investigation of complaints about the army and to investigate any representations made to him about those procedures. While the Secretary of State has a power (rather than a duty) to appoint an Assessor, the Government has said that the position will remain while the Army is needed to act in support of the police in Northern Ireland. Further provision about the Assessor is made in Schedule 11, which this section activates.
85.These sections continue the power of the Secretary of State to prepare, publish, issue and revise codes of practice on the seizure and retention of property by the police and the powers of the police and army under this Part. It also provides for a silent video recording scheme in the holding centres.
86.This section makes it an offence to collect or possess information about specified persons which is likely to be useful to terrorists. Possessing such information is also an offence. Subsection (2) defines the persons relevant to this section. Subsection (5) provides that it is a defence to prove that a person had a reasonable excuse for the collection of such information: this defence is included in section 118(5) so imposes an evidential burden only on the defendant.
87.This section places a requirement on the Chief Constable of the RUC to make arrangements for records to be kept when powers are exercised under this Part of the Act. It is envisaged that records will be kept unless there are reasons which make this impractical: for example following a major incident when the police by necessity would need to stop and question large numbers of people.
88.See notes on Schedule 13 below.
89.This section defines specified organisations for the purposes of the four following sections. These provisions are based on sections 1, 2 and 4 of the Criminal Justice (Terrorism and Conspiracy) Act 1998 (c. 40) which was introduced after the Omagh bomb.
90.This section provides that oral evidence from a police officer of at least the rank of superintendent to the effect that the accused is or was a member of a specified organisation shall be admissible as evidence of such membership. This is subject to subsection (3)(b), which provides that a suspect cannot be committed for trial, be found to have a case to answer, or be convicted, solely on the basis of the officer’s statement.
91.This section provides that the court may draw inferences from an accused’s failure to mention a fact material to an offence which he could reasonably be expected to mention when questioned. The court may only draw such inferences where the accused was permitted to consult a solicitor before being questioned. The accused shall not be committed for trial, found to have a case to answer or be convicted solely on the basis of inferences under this section.
92.This section makes it clear that the preceding sections do not prejudice the admissibility of other evidence, preclude the drawing of other inferences, or prejudice other legislation which states that certain evidence is inadmissible in proceedings.
93.This section makes provision for the court to order forfeiture of money or property. This applies where a person is convicted of an offence under section 11 or 12 and belonged to a specified organisation at the time the offence was committed. The court is able to order forfeiture of money or property if the individual had it in his possession when the offence was committed and if it had been used, or was likely to be used, in connection with the activities of the specified organisation. As with forfeiture provisions elsewhere in the Act the court must give an opportunity to be heard to any other individual who has an interest in money or property which could be subject to a forfeiture order under this section.