Part 2: Law Officers and Public Prosecution Service.
General
41.The Office of the Director of Public Prosecutions was created by the Prosecution of Offences (Northern Ireland) Order 1972. That Order gives the Director of Public Prosecutions an overview of all prosecutions in Northern Ireland. The Director has a role in ensuring that all prosecutions are carried out properly and he can take over prosecutions being conducted by any other individual or agency. Article 5(1)(c) of that Order provides that the Director shall, where he thinks proper, initiate and undertake on behalf of the Crown proceedings for indictable offences (tried in the Crown Court) and for any summary offence or class of summary offence that he considers should be dealt with by him. The remainder of summary offences are prosecuted by police officers, usually in the magistrates’ courts.
42.Under Article 3(2) of the Prosecution of Offences (Northern Ireland) Order 1972 the Director operates under the superintendence and direction of the Attorney General in all matters and he is responsible to the Attorney for the performance of his functions. The Northern Ireland Constitution Act 1973 provides that the Attorney General for England and Wales is also Attorney General for Northern Ireland and the Director’s line of accountability has therefore been to the Attorney General at Westminster.
43.This Part of the Act implements the recommendations in Chapter 4 of the Review, establishing a Public Prosecution Service for Northern Ireland and providing for the appointment of the Attorney General for Northern Ireland after the devolution of justice functions. After devolution, the Attorney General for England and Wales will hold the new post of Advocate General for Northern Ireland. This Westminster figure will be responsible for matters relating to prosecutions that are not within the competence of the devolved administration, for example matters relating to national security and international relations.
Attorney General
Section 22: Attorney General
44.It is planned to commence the provisions in sections 22 to 28 and sections 41 to 43 on the devolution of justice functions to the Northern Ireland Assembly. Subsection (1) of section 22 will remove the linkage, established by section 10 of the Northern Ireland Constitution Act 1973, between the Attorney General for England and Wales and the Attorney General for Northern Ireland.
45.Subsection (2) of this section gives the First Minister and deputy First Minister the duty to appoint a person to be Attorney General for Northern Ireland, after consulting the Advocate General for Northern Ireland (see paragraph 13 of Schedule 7). Subsections (3) and (4) make it clear how the new, local Attorney General for Northern Ireland is to be funded and that he may appoint new staff. Subsection (5) requires the Attorney General to exercise his functions independently. Subsection (6) sets out the legal qualifications for the post. These are equivalent to those of a judge of the High Court in Northern Ireland (see section 18). Under subsection (7) the First Minister and deputy First Minister may make arrangements to fill the post of Attorney General temporarily during a vacancy. Before doing so they must consult the Advocate General for Northern Ireland (see paragraph 12 of Schedule 7).
Section 23: Terms of appointment of Attorney General
46.Subsection (2) of this section provides that the local Attorney General cannot be appointed for a period of longer than five years at a time. It would be possible for the First Minister and deputy First Minister to reappoint an individual to the post of Attorney General for Northern Ireland after such a period of five years has come to an end.
47.The effect of subsections (6) to (8) is to disqualify the holder of the post of Attorney General for Northern Ireland from being a member of the House of Commons, the Northern Ireland Assembly or a local authority in Northern Ireland.
48.Subsection (9) makes the local Attorney General subject to the provisions of the Freedom of Information Act 2000. This is equivalent to the position of the Attorney General in England and Wales.
Section 24: Removal of Attorney General
49.Subsection (1) provides that the First Minister and deputy First Minister can only remove or suspend the Attorney General for Northern Ireland from office on the recommendation of a tribunal. The members of the tribunal will be judges in England, Wales or Scotland (subsection (4)). The tribunal will be convened by the First Minister and deputy First Minister and its members will be appointed by the Lord Chancellor.
Section 25: Participation by Attorney General in Assembly proceedings
50.The effect of this section is to make the Attorney General accountable before the Northern Ireland Assembly for the operation of the Prosecution Service. He will be allowed to answer questions and make statements pursuant to standing orders, but without the right to vote. Subsection (3) will give him the right to refuse to answer questions or produce documents on public interest grounds or where that might prejudice criminal proceedings. Subsection (4) makes the Attorney subject to the provisions of section 43 of the Northern Ireland Act 1998 (members’ interests), under which he will be required to declare any interests in the register maintained by the Assembly before taking part in any relevant proceedings of the Assembly.
Section 26: Annual report by Attorney General
51.This section sets out arrangements whereby the Attorney General for Northern Ireland is required to write an annual report for each financial year on how he has exercised his functions. This report will be laid before the Northern Ireland Assembly by the First Minister and deputy First Minister, who will also arrange for it to be published.
Advocate General
Section 27: Advocate General
52.There are certain functions of the present Attorney General for Northern Ireland that cannot be given to the Attorney General for Northern Ireland appointed by the First Minister and deputy First Minister. These relate to matters over which the Northern Ireland Assembly has no jurisdiction. These ‘excepted matters’ are set out in Schedule 2 to the Northern Ireland Act 1998 and include, for example, international relations (including treaties and the European Union), the defence of the realm, taxation and national security. Accordingly, this section establishes a new post of Advocate General for Northern Ireland to take responsibility for Northern Ireland interests in these issues. Subsection (1) of this section makes the Attorney General for England and Wales the holder of this post. The amendments set out in subsection (2) allow the Solicitor General (as the Attorney General for England and Wales’s deputy) to also carry out the functions of the Advocate General for Northern Ireland. This is done by amending the provisions of the Law Officers Act 1997. The office and functions of the Advocate General are made an excepted matter by means of subsection (4), which adds them to the list of excepted matters in Schedule 2 to the Northern Ireland Act 1998.
Section 28: Functions of Advocate General
53.This section introduces Schedule 7 to the Act which sets out the functions of the new post of Advocate General for Northern Ireland (see also below). The Secretary of State can by order transfer to the Advocate General other functions of giving consent to the institution or conduct of criminal proceedings (subsection (2)).
Public Prosecution Service
Section 29: Public Prosecution Service
54.Subsection (2) of this section sets out the composition of the Prosecution Service. There are two statutory office holders: the Director and Deputy Director of Public Prosecutions. Subsection (8) makes it clear that the Director may set up and maintain such offices, in such places in Northern Ireland, as he considers appropriate for the exercise of his functions.
55.Subsection (3) makes it clear that the Prosecution Service is to be funded by the Secretary of State. Subsection (4) deals with the staff of the Prosecution Service. These are currently civil servants, who are considered to be on secondment from the Northern Ireland Department of Finance and Personnel. There are no plans to change this arrangement. As the main work of the service will be the conduct of prosecutions, staff to be designated as prosecutors will need to be legally qualified, as set out in subsection (5))..
Section 30: Director of Public Prosecutions
56.This section sets out the appointment criteria for the Director and Deputy Director. The legal qualifications for the two post-holders are set out in subsections (2) and (3) respectively.
57.The Director and Deputy Director would normally hold their posts until they reach the age of 65, unless the Attorney General for Northern Ireland extends their period of appointment, they resign by giving notice in writing, or are dismissed by the Attorney General under section 40 (which applies prior to devolution) or section 43 (which sets out the arrangements for an independent tribunal which will operate after devolution) (subsections (5) and (6)).
58.Subsections (7) and (8) set out the arrangements for temporarily exercising the functions of Director and Deputy Director should those posts fall vacant. If there were no Director, it would be for the Deputy Director to exercise the functions of the post until another Director was appointed by the Attorney General for Northern Ireland. If the post of Deputy Director became vacant, then the Attorney General for Northern Ireland could appoint an acting Deputy Director from the prosecution service staff under subsection (8) to cover that period.
59.In accordance with the recommendations of the Review, subsection (11) provides that the Director cannot be required by the Assembly to answer questions or produce documents other than in relation to the finances and administration of the prosecution service. As the Director is meant to have complete independence in the exercise of his functions (subject to the accountability measures and limits set out in this legislation) it would not be appropriate for the Assembly to question him on individual cases. These provisions also apply to the Deputy Director and other members of staff.
Section 31: Conduct of prosecutions
60.This section sets out the core functions of the Prosecution Service. It will be the responsibility of the Prosecution Service to undertake all prosecutions for both indictable and summary offences committed in Northern Ireland that were previously the responsibility of the Director of Public Prosecutions for Northern Ireland or the police.
61.Under subsection (1), the Director will have a duty to take over all prosecutions instituted by the police. On commencement the Director will take over responsibility for all prosecutions instituted by the police. Section 89(4) provides that if, for example, preparatory work is not sufficiently advanced to allow the Prosecution Service to take on all prosecutions at that time, the Director will only have responsibility for those types of prosecutions which it is reasonably practicable for him to conduct. Under subsection (2), the Director will also be able to institute criminal proceedings himself where he considers it appropriate.
62.Subsection (3) ensures that the right to institute private prosecutions remains, although it will continue to be open to the Director to take over any privately instituted prosecution under subsection (4) (other than proceedings instituted by the Serious Fraud Office). Subsection (5) requires the Director to give advice to police forces operating in Northern Ireland on prosecutorial matters. Advice is limited to such issues; it is not intended that the Director should supervise police investigations.
Section 32: Discontinuance of proceedings before court appearance
63.This section addresses a recommendation of the Review that the prosecutor be able to withdraw charges before the defendant’s first court appearance (‘first remand’). When combined with a direction that the name of the accused not be released before that first court appearance it will help to address the potential for damage to reputation if someone has been wrongly charged. Removing the requirement for withdrawal of charge to be sought in court will also prevent unnecessary court appearances by the person accused and the prosecutor and will ensure a more efficient use of court time. Other methods of terminating a prosecution (such as the entering of a nolle prosequi) will continue to be open to the prosecution service after first remand.
64.Subsection (3) ensures that the person concerned will be released from custody when the charge is withdrawn (unless there are other charges pending that warrant his detention) and that any requirement for him to appear at or be brought before court, or appear at a police station (for example, those imposed by Article 47 or 48 of the Police and Criminal Evidence (Northern Ireland) Order 1989) ceases to have effect. Subsection (4) ensures that the person can be prosecuted for the same offence in the future.
Section 33: Consents to prosecutions
65.Certain offences are considered serious enough to require the consent of either the Director of Public Prosecutions or (at present) the Attorney General for Northern Ireland before a prosecution can be undertaken. The provisions in this section set out the detail of how this consent is to be given by the Director and used by the courts(3). After devolution, the Attorney General for Northern Ireland will no longer be able to consent to the prosecution of offences and all of those provisions requiring his consent (other than those that relate to “excepted” matters) will be passed to the Director. Commentary on this change is set out at section 41.
Section 34: Police complaints
66.The amendments to the Police (Northern Ireland) Act 1998 set out in this section are intended to allow the Director to refer any allegations made to him of criminal conduct by police officers to the Police Ombudsman. The Ombudsman would then report the outcome of any investigation it was felt should be undertaken into those allegations to the Director. This builds on the Director’s powers in section 35 (see below).
Section 35: Information for Director
67.Subsections (1) and (2) of this section require court officials, resident magistrates, lay magistrates and clerks of petty sessions to send the Director copies of relevant information when persons are committed for trial or a complaint has been made. This will ensure that the Director is made aware of prosecutions which he has not heard about through other channels. It would then be open to him to take over the conduct of those prosecutions under section 31.
68.There is a requirement in subsection (3) for coroners to report to the Director the circumstances of a death where it appears that an offence may have been committed. Subsection (4) of this section requires the Chief Constable of the Police Service of Northern Ireland to send to the Director information about offences alleged to have been committed which are of a description specified by the Director. This information will enable the Director to monitor the progress of investigations and proceedings in relation to particular types of offences.
69.Subsection (5) requires the Chief Constable to send information to the Director at his request about criminal offences that may have been committed or any other information that the Director might need in order to carry out his functions: this reflects provisions currently in force in Article 6(3) of the Prosecution of Offences (Northern Ireland) Order 1972. This could be used, for example, where the Director had gained information that indicated a criminal offence might have been committed. He could ensure that it had been thoroughly investigated and request any associated papers in order to ensure that a decision could be made by the Prosecution Service as to whether any prosecution should be instituted. These provisions do not, however, constitute a power for the Director to supervise the conduct of investigations by the police.
Section 36: Exercise of functions by and on behalf of Service
70.This section allows the Director to delegate any or all of his functions to a member of his staff. All staff members must carry out their work subject to the direction of the Director (see section 29(6)). Subsection (2) allows the Director to retain the services of a barrister or a solicitor to prosecute cases on his behalf, but they must act in accordance with any instructions issued by a Public Prosecutor (subsection (3)).
Section 37: Code for Prosecutors
71.Under the provisions in this section the Director must publish a Code of Practice for Public Prosecutors and barristers and solicitors conducting cases for the Director. This would incorporate a code of ethics. The Code of Practice would contain guidance on the general principles to be applied by Prosecutors in the matters set out in subsection (3), such as the grounds on which the Prosecutor would make the decision to prosecute (the evidential and public interest tests); for what charge; and on what grounds proceedings would be discontinued. When preparing the code, the Director must be guided by the general principles of the UN Guidelines on the Role of Prosecutors (subsection (5)). The code will be published (subsection (6)). Section 38 requires the code to be included in the Director’s annual report.
Section 38: Equality and non-discrimination
72.Section 38 designates the Office of the Director of Public Prosecutions (DPP) for the purposes of sections 75 and 76 of the Northern Ireland Act 1998, with certain exceptions listed at subsections (3) and (5) designed to safeguard the Director’s independence in relation to the prosecution of offences. The section 75 duty requires bodies to “have regard to the need to promote equality of opportunity” between the nine section 75 categories (religious belief, political opinion, race or ethnic group, age, marital status, sexual orientation, gender, disability and dependancy). Section 76 makes it unlawful to discriminate on the grounds of religious belief or political opinion.
Section 39: Reports by Director
73.This section contains the reporting arrangements for the Prosecution Service. For each financial year the Director will have to prepare an annual report for the Attorney General for Northern Ireland that contains details of how he has exercised his functions for that year, the Code of Practice (including the code of ethics) which the Director is required to produce under section 37 (see above) and any alterations made to those codes during the previous year.
74.The Director will present the Attorney General with a copy of his report and it will then be for the Attorney General to ensure that the report is published. Subsection (4) allows the Attorney General to exclude parts of the report from publication on public interest grounds.
Relationship of Director and Attorney General
Section 40: Superintendence and removal of Director
75.This section sets out the relationship between the Director and the Attorney General prior to devolution and the appointment of a local Attorney under section 22. This reflects the current relationship between the Director and the Attorney.
Section 41: Transfer of functions etc.
76.This section sets out the changes to the functions of the Attorney General that will occur on devolution. Subsection (2) will end the ability of the Attorney General to consent to prosecutions for certain, specified offences. The power to consent to those prosecutions will be split between the Director of Public Prosecutions for Northern Ireland and the Advocate General for Northern Ireland (with the offences for which the Advocate General’s consent is required set out in paragraphs 24 to 36 of Schedule 7).
77.Subsection (3) will allow the Director, rather than the Attorney General for Northern Ireland, to stop a prosecution by means of entering a nolle prosequi. This allows proceedings upon indictment to be halted at any time before judgment. It is now usually directed to be entered in cases where the accused person cannot be produced in court to plead or stand trial owing to physical or mental incapacity which is expected to be permanent. A nolle prosequi puts an end to the prosecution but does not operate as a bar or discharge or an acquittal on the merits and the party remains liable to be re-indicted.
78.Subsection (4) will remove the power of the Attorney General to present a Bill of Indictment so as to obtain trial before the Crown Court without the necessity of committal proceedings. Subsection (5) will allow the Director, rather than the Attorney General for Northern Ireland, to appeal where he feels that a sentence handed down by a court is unduly lenient. Subsection (6) will allow the Director to refer a point of law to the Court of Appeal following an acquittal on indictment.
Section 42: Independence of Director
79.This section sets out the arrangements for consultation and advice between the Director of Public Prosecutions, the Attorney General for Northern Ireland and the Advocate General for Northern Ireland after the devolution of justice functions to the Northern Ireland Assembly. It includes (in subsection (1)) a statutory declaration of the independence of the Director of Public Prosecutions in the exercise of his functions. Subsections (5) to (7) deal with the publication of the Director’s annual report.
Section 43: Appointment and removal of Director by Attorney General
80.This section sets out the appointment and removal criteria for the Director and Deputy Director after devolution. As the Director will be carrying out some prosecutions that fall within the area of responsibility of the Advocate General for Northern Ireland, the Attorney General for Northern Ireland will have to consult him before making an appointment (subsection (1)). The Director and Deputy Director can only be suspended or dismissed on the recommendation of a tribunal convened under subsection (4) (see subsection (2)). The membership of such a tribunal is set out at subsection (5). The tribunal will be convened by the Attorney General for Northern Ireland, after consulting the Advocate General for Northern Ireland, and its members will be chosen by the Lord Chancellor (see subsections (4) and (6)).
Supplementary
Section 44: Interpretation
81.This section defines when proceedings in any case are to be considered to have been instituted for the purposes of this Part.
These provisions will also apply to consents given by the Advocate General for Northern Ireland (see Schedule 7, paragraph 37).
