Commentary on Sections
25.A commentary on the provisions follows below. Comments are not given where the wording is self-explanatory.
Abolition of preliminary investigation and mixed committals
Section 1: Abolition of preliminary investigations
This section abolishes preliminary investigations in which witnesses can be called to give evidence on oath as a means for conducting committal proceedings by repealing Article 30 of the Magistrates’ Courts (Northern Ireland) Order 1981. This section also provides that all committal proceedings in a magistrates’ court shall be by way of a preliminary inquiry provided for under the Magistrates’ Courts (Northern Ireland) Order 1981.
Section 2: Abolition of mixed committals: evidence on oath not to be given at preliminary inquiry
This section abolishes mixed committals as a method for conducting committal proceedings by repealing Article 34(2) of the Magistrates’ Courts (Northern Ireland) Order 1981, which provides for witnesses to give evidence on oath at a preliminary inquiry. The combined effect of sections 1 and 2 is that, upon commencement, it is not possible to call upon witnesses to give evidence on oath at a committal hearing, to cases to which the provisions apply.
Section 3: Consequential amendments and repeals
This section provides the necessary consequential amendments and repeals, which are to be made to a number of pieces of legislation in order to give effect to sections 1 and 2 which abolish preliminary investigations and mixed committals, and which are contained in the Schedule to the Act.
Direct committal for trial: miscellaneous amendments
Section 4: Direct committal for trial: miscellaneous amendments
This section makes a number of amendments to the direct committal for trial provisions in Chapter 2 of Part 2 of the Justice Act (Northern Ireland) 2015 which provides for certain cases which are to be prosecuted on indictment to be directly committed to the Crown Court without the need for a committal hearing.
Subsection (2) amends section 9 of the Justice Act (Northern Ireland) 2015 to provide operational clarity to criminal justice practitioners regarding the criteria that cases must meet before being considered for direct committal. The subsection provides that cases to which Article 45 of the Magistrates’ Courts (Northern Ireland) Order 1981, or Article 17 of the Criminal Justice (Children) (Northern Ireland) Order 1998 apply, shall only be directly committed to the Crown Court, subject to meeting the criteria set out in section 11 of the Justice Act (Northern Ireland) 2015, after a magistrates’ court has decided not to deal summarily with the case.
Subsection (3) repeals section 10 of the Justice Act (Northern Ireland) 2015 which provides for the direct transfer to the Crown Court of an accused, upon his or her indication to a magistrates’ court (before it has begun to conduct traditional committal proceedings) of an intention to plead guilty to an offence to be prosecuted on indictment.
Subsection (4) amends section 11 of the Justice Act (Northern Ireland) 2015 to amalgamate and streamline sections 11 and 12 of that Act following the decision by the Department to extend the list of offences to which direct committal will apply. The subsection extends the application of direct committal to include all offences which, in the case of an adult, would be considered to be triable only on indictment. The test for the court is whether the offence is, in the case of an adult, triable only on indictment.
Subsection (4) also provides the Department with the power to bring forward an order(s) to designate any other offence(s) to which direct committal under Chapter 2 of Part 2 of the Justice Act (Northern Ireland) 2015 will apply.
Subsection (4) brings within section 11 the process originally provided for in section 12 of the Justice Act (Northern Ireland) 2015, whereby an accused, charged with an offence not falling within the direct committal offence types, can be directly committed to the Crown Court if the offence is related to an offence for which a co-accused has been directly committed.
Subsection (4) also introduces other changes to support the introduction of direct committal.
It amends Chapter 2 of Part 2 of the Justice Act (Northern Ireland) 2015 to provide that in cases where an accused is directly committed to the Crown Court for a relevant offence under that Chapter, the magistrates’ court shall at the same time directly transfer any other offence(s) for which the accused is charged that it considers to be related. The subsection defines a related offence as one which the court determines could be included on the same indictment as the offence which is to be directly committed.
It amends Chapter 2 of Part 2 of the Justice Act (Northern Ireland) 2015 to allow for certain functions of the magistrates’ courts, other than those related to committal proceedings, to continue after a case has been directly committed for trial. This provision seeks to maintain consistency with existing arrangements for cases, which proceed to the Crown Court through the traditional committal process for example, where an accused who is alleged to have breached the conditions of his or her bail in respect of an offence(s), which has been directly committed to the Crown Court, can be brought before a magistrates’ court to answer those allegations. Magistrates’ courts sit more frequently than Crown Court, and at a greater number of venues across Northern Ireland and this change facilitates prompt access to a court so that such allegations can be heard. This in turn is important in order to protect the administration of justice, particularly where there is a risk an accused might attempt to interfere with the criminal justice process.
Subsection (5) makes some minor amendments to section 13 of the Justice Act (Northern Ireland) 2015 to add flexibility to the nature of court rules required to support the direct committal process, by adding that further arrangements in respect of the documentation associated with direct committal can be provided for in either magistrates’ court rules, or Crown Court Rules. This change is primarily designed to allow Crown Court Rules to provide further detail on arrangements for serving documents containing the evidence on which the directly committed charge is based, should those documents not be available to the magistrates’ court at the point when the accused is to be directly committed to the Crown Court.
Subsection (6) provides the magistrates’ court with powers to order the making of inquiries and reports relevant to the sentencing of the accused, should an accused indicate an intention to plead guilty to the offence(s) to be directly committed to the Crown Court. The purpose of this change is to provide the Crown Court with documentation required to support the early disposal, if appropriate, of the case should the accused enter a guilty plea at an early stage in the Crown Court. The subsection requires that the prosecution and the accused must be provided with the opportunity to make representations to the magistrates’ court prior to that court making a decision regarding the ordering of relevant inquiries or reports.
Subsection (7) inserts a new section (13A) into the Justice Act (Northern Ireland) 2015 to provide new powers for the Director of Public Prosecutions for Northern Ireland to discontinue proceedings, in cases directly transferred to the Crown Court under Chapter 2 of Part 2 of the Justice Act (Northern Ireland) 2015, between the time that a case is directly committed and the time that an indictment is presented in the Crown Court. The subsection also sets out the arrangements for discontinuing proceedings in such circumstances. The powers allow for the Director to discontinue proceedings which have been directly committed under Chapter 2 of Part 2 of the Justice Act (Northern Ireland) 2015 by giving a notice to the Crown Court sitting at the specified place of trial. Proceedings against an accused will be discontinued on the giving of that notice to the Crown Court.
Subsection (7) also provides that the Director must provide reasons in the notice to the Crown Court as to the decision to discontinue proceedings. On discontinuing proceedings, the Director must also inform the accused of the decision, however he is not obliged to provide to the accused reasons as to why proceedings have been discontinued.
Where an accused against whom proceedings have been discontinued is in detention as a result of those proceedings, he must be released, unless there are other reasons for his detention.
Similarly, where an accused against whom proceedings have been discontinued is subject to a requirement to attend court or a police station in connection with those proceedings, that requirement ceases to have effect.
The new section provides that exercise of the power to discontinue proceedings by the Director, does not prevent fresh proceedings against the accused being initiated either in connection with the offence(s) linked to the proceedings that were discontinued, or for any other offences. The Act is not prescriptive as to how fresh proceedings may be initiated.
Subsection (8) amends the process whereby the accused or their representatives can apply to dismiss charges under section 14 of the Justice Act (Northern Ireland) 2015 where an accused has been directly committed for trial under Chapter 2 of Part 2 of the Justice Act (Northern Ireland) 2015. This change is designed to maintain consistency with the Department’s commitments to remove the option for victims and witnesses to be called to provide oral evidence on oath in advance of trial.
Subsection (9) makes a number of amendments to Schedule 2 to the Justice Act (Northern Ireland) 2015, which are mostly minor in nature, or consequential to the changes made to Chapter 2 of Part 2 of the Justice Act (Northern Ireland) 2015 by this Act. The most substantive change made by the subsection relates to an amendment to paragraph 8 of Schedule 2 to the Justice Act (Northern Ireland) 2015, which in turn amends the Criminal Procedure and Investigations Act 1996, to define a timeframe in which a prosecutor must disclose to the defence copies of, or provide access to, material which could reasonably be considered to undermine the prosecution case or assist the case of the accused in cases directly transferred under Chapter 2 of Part 2 of the Justice Act (Northern Ireland) 2015. The duty on the prosecution is to provide this material as soon as is reasonably practicable after the service of the evidence on which the charge(s) is based as referred to in section 13(2A) of the Justice Act (Northern Ireland) 2015, and the accused has been committed for trial under Chapter 2 of Part 2 of that Act.
Subsection (9)(c) provides that, where required, a legal aid certificate can be applied for following the issue of a notice of committal, thus providing the Crown Court with sufficient flexibility to deal with legal aid applications promptly with a view to progressing cases with minimal delay.
Subsection (10) updates a reference in section 102(7)(a) of the Justice Act (Northern Ireland) 2015 relating to the arrangements by which the Department can bring forward an order to extend the list of offences to which the direct committal provisions of the Justice Act (Northern Ireland) 2015 will apply.
Subsection (11) repeals section 57 of the Justice Act (Northern Ireland) 2016 following the amendment made to section 9 of the Justice Act (Northern Ireland) 2015 by this Act.
Final provisions
Section 5: Commencement and transitional provisions, etc.
Section 5 provides that the provisions relating to the abolition of oral evidence from the traditional committal process, and direct committal will not apply to proceedings instituted before the Department has commenced the relevant provisions of the Act. Paragraph 4 of Schedule 8 to the Justice Act (Northern Ireland) 2015 provides further definition as to when proceedings are instituted for that purpose.
Section 6: Short title
This section provides the short title for the Act which is the Criminal Justice (Committal Reform) Act (Northern Ireland) 2022.
Schedule
The Schedule details consequential amendments and repeals to give effect to sections 1 and 2 which abolish preliminary investigations and mixed committals.
