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Justice (Northern Ireland) Act 2004

Schedule 2: Bail under Terrorism Act 2000

46.Schedule 2 is concerned with those charged with a scheduled offence and granted bail under section 67 of the 2000 Act. It creates two new scheduled offences in relation to absconding by persons on bail; provides for powers of arrest in relation to those who abscond or break their conditions of bail, and a power of entry subject to a warrant granted by a Justice of the Peace to effect such arrests; provides the procedures to be followed in relation to those arrested without warrant; and makes provisions for the circumstances in which scheduled offences are certified as suitable for summary trial. The provisions have been created because the enforcement of bail granted under section 67 of the 2000 Act is currently out of kilter with the enforcement of bail granted in respect of non-scheduled offences as set out in the Criminal Justice (Northern Ireland) Order 2003, (“the 2003 Order”). As a result those charged with scheduled offences were being treated more leniently.

47.Paragraphs 1(1) creates an offence of failure to surrender to custody without reasonable cause (“surrender to custody” is defined in section 12(3)). Paragraph 1(2) creates a further offence of failure to surrender to custody as soon as reasonably practicable, where a person has previously failed to surrender to custody with reasonable cause. Both offences are triable either summarily or on indictment. Summary conviction can attract a penalty of up to imprisonment of 12 months, a fine not exceeding the statutory maximum, or both.  Conviction on indictment can attract a penalty of up to three years imprisonment, a fine, or both. Sub-paragraph (4) adds these offences to the list of exceptions set out in Article 29(1) of the Magistrates’ Court (Northern Ireland) Order 1981 (SI 1981/1675 (N.I. 26)). As a result a person cannot elect for trial by jury in relation to the summary offence. Sub-paragraph (5) makes these offences scheduled by adding them to the list of offences set out in Schedule 9 to the Terrorism Act 2000.

48.Paragraphs 2(2) and (3) provide the court with a power to issue a warrant for the arrest of a person admitted to bail who fails to surrender to its custody at the appointed time; or who, having surrendered to its custody then absents himself without the permission of the court.  Sub-paragraph (4) provides a constable with a power of arrest without warrant in respect of any person under a duty to surrender to the custody of a court if he is satisfied that one of the circumstances in paragraph 2(4) exists.  Sub-paragraphs (5) and (6) create a new power of entry to assist the police in carrying out such an arrest. This power will be exercisable upon the granting of a warrant by a Justice of the Peace which is subject to the conditions set out in Sub-paragraphs (5) and (6). This power of entry is in very similar terms to that inserted by section 12 into the 2003 Order.

49.Paragraph 3(1) provides that a person arrested under paragraph 2(4) must be brought before a judge of the High court or the Court of Appeal as soon as is practicable, and no later than the day following arrest excluding Sundays, Good Friday and Christmas Day. This time limit has been designed to ensure that the person arrested has his arrest reviewed promptly and if appropriate he can be readmitted to bail as quickly as possible. Under paragraph 3(2) the time limit will not apply if a person is in hospital and unable to attend court. This is in line with similar provisions in the Police and Criminal Evidence (Northern Ireland) Order 1989 and with those to be included in the 2003 Order by clause 12.

50.The person arrested under paragraph 2(4) must be brought before a judge of the High Court or the Court of Appeal because these are the only judges competent to grant bail under section 67(2) of the 2000 Act. As the original bail will have been granted under section 67 of the 2000 Act any bail granted under paragraph 3 must also be bail granted under and in accordance with section 67. Under paragraph 3(3) the judge must conduct a two stage process. Firstly, he must assess the grounds for the arrest by deciding whether the person is not likely to surrender to custody, or has broken or is likely to break any condition of his bail.. If he is not satisfied of any of these, then he must automatically re-release the person on bail subject to the same conditions (if any) as were originally imposed. As there will be no application for bail as such and no exercise of discretion by the judge in relation to bail the bail is deemed to be bail granted under section 67 (this is provided for in paragraph 3(4)). If the judge believes that any of the considerations stipulated in sub-paragraph 3(a) is met, then he must turn to the second stage of the process and re-consider the question of bail under and in accordance with section 67. The procedure has been developed to be very similar to that in Article 6 of the 2003 Order.

51.Paragraph 4 provides that any person in respect of whom a certificate of suitability for summary trial has been issued for all scheduled charges faced is treated as if he had been granted bail under the 2003 Order. This is because if the question of bail in relation to such a person were to be reconsidered they could no longer be granted bail under section 67(1)(b) of the Terrorism Act 2000. It needs to be clear that in such circumstances the person is to be treated as if they had been granted bail in relation to a non-scheduled offence.

52.Paragraph 5 provides that the offence of absconding from bail, the powers of arrest with and without warrant and the power of entry with a warrant from a Justice of the Peace will apply to those on bail before and after the legislation is commenced.  For those already on bail at that time, the powers only apply in respect of any act, or failure, or issue of a certificate for summary trial, which occurs after the law is commenced. This is to avoid the provisions having any retrospective effect.

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