Cookies on Legislation.gov.uk

The cookies on legislation.gov.uk do two things: they remember any settings you've chosen so you don't have to choose them on every page, and they help us understand how people browse our website, so we can make improvements and fix problems. We need your consent to use some of these cookies.

Search Legislation

Advanced Search

Northern Ireland Troubles (Legacy and Reconciliation) Act 2023

Contents

Part 3: Investigations, legal proceedings etc. and release of prisoners

Criminal investigations and proceedings

Section 38: No criminal investigations except through ICRIR reviews

  1. This section makes provision which prohibits authorities other than the ICRIR from investigating Troubles-related criminal offences. Under subsection (1), no criminal investigations into any Troubles related offence may be initiated or continued, on and after the day on which the section enters into force (this is the 1 May 2024 – see section 63(3)). This prohibition does not prevent the ICRIR exercising its functions (subsection (2)).
  2. Under subsection (3) the chief officer of each police force in the UK is placed under a duty to notify the Secretary of State of any criminal investigations of Troubles-related offences their forces are carrying out on the day before the section comes into force.
  3. Subsection (4) provides that the prohibition has effect subject to section 42(3), which makes saving provision for investigations which relate to criminal prosecutions started before 1 May 2024.

Section 39: Grant of immunity: prohibition of criminal enforcement action

  1. This section applies where a person has been granted immunity from prosecution by the ICRIR for a serious or connected Troubles-related offence (these terms are defined in section 1(5)) Under subsection (2), no criminal enforcement action may be taken against such a person for the offence (for as long as that immunity is held). Criminal enforcement action has the meaning given by section 42(2) and includes, for example, prosecuting the person for the offence.

Section 40: No grant of immunity: restrictions on criminal enforcement action

  1. This section regulates the criminal enforcement action which may be taken against a person in respect of a serious or connected Troubles-related offence, where that person does not hold immunity from prosecution for that offence (granted by the ICRIR under section 19).
  2. Under subsection (2), criminal enforcement action may be taken against a person if in respect of a serious or connected Troubles-related offence if:
    1. the Commissioner for Investigations has referred conduct by that person to a prosecutor under section 25;
    2. the offence is the offence or one of the offences notified to the prosecutor at the time of the referral, or another offence constituted by the conduct which was referred; and
    3. the criminal enforcement action is taken in connection with the referral.
  3. Subsection (3) applies to ensure that an ICRIR officer, or other person acting in connection with the ICRIR’s functions, is not prohibited from using any powers they may have to arrest or otherwise detain the person in respect of the offence (in practice, such powers are likely to be used before a referral is made under section 25). Subsection (4) makes similar provision so as to allow an ICRIR officer (or other person acting in connection with the ICRIR’s functions) to exercise any power they may have to charge the person with the offence, and to allow a prosecutor to conduct criminal proceedings arising from that charge. Again, these are steps which, depending on the jurisdiction and the particular circumstances, might sometimes be taken in advance of a referral under section 25.
  4. Subsections (5) and (6) clarify the relationship between subsections (2) to (4) in cases where, relying on either subsection (3) or (4), criminal enforcement action is taken in respect of a person for an offence, and a related referral under section 25 is then made, engaging subsection (2).
  5. Subsection (7) clarifies that this section does not itself confer enforcement powers (e.g., powers of arrest), it merely authorises a person to use powers which they already hold. Subsection (8) provides that the restrictions created by the section have effect subject to the savings provision for pre-commencement cases under section 42(4).

Section 41: Other Troubles-related offences: prohibition of criminal enforcement action

  1. This section makes provision in relation to Troubles-related offences which are not serious or connected offences, within the meaning of section 1 of the Act Under subsection (2), no criminal enforcement action may be taken against a person in respect of such offences. This prohibition is also subject to the saving provision created by section 42(4).

Section 42: General provision and saving for ongoing pre-commencement action

  1. This section contains general and saving provisions relating to Troubles-related criminal investigations and prosecutions. Subsection (1) sets out that any legislation or other law has no effect insofar as it authorises or requires a person to do anything that is prohibited by sections 38 to 41
  2. Subsection (2) gives meaning to the term, "criminal enforcement action" for the purposes of sections 39 to 41. Criminal enforcement action is taken against a person for an offence if: they are prosecuted for it, other criminal proceedings are brought or continued against the person in relation to the offence, or the person is arrested or otherwise detained in connection with the offence.
  3. Subsection (3) is a saving provision, and provides that section 38 does not prevent a criminal investigation being carried out other than the ICRIR if a public prosecution of a person for the offence has already begun prior to commencement (1 May 2024) and the investigation is being carried out for the purposes of that prosecution.
  4. Subsection (4) is another saving provision: sections 40 and 41 do not prevent criminal enforcement action from being taken against a person in respect of an offence where a public prosecution was started before commencement (1 May 2024), and where the criminal enforcement action related to that prosecution (for example, the enforcement of a sentence).
  5. Subsection (5) clarifies that the saving provisions in subjections (3) and (4) do not prevent further transitory, transitional or saving provision from being included in in regulations under section 63(5) in connection with the coming into force of sections 38, 40 or 31.
  6. Subsection (6) defines the term "public prosecution" as a prosecution other than a private prosecution, and provides that a public prosecution is to be treated as begun when the decision to prosecute is made.

Civil proceedings, inquests and police complaints

Section 43: Tort, delict and fatal accident actions

  1. This section prohibits relevant Troubles-related civil actions from being brought after the section comes into force (Subsection (2)) and from being continued in respect of those claims which were brought on or after the Act’s first reading as a Bill in the House of Commons (Subsection (1)). The section comes into force 2 months after the Act was passed (see section 63(2)(a)); and the date of the Act’s first reading as a Bill in the House of Commons was 17 May 2022.
  2. Subsections (3) to (6) define "relevant Troubles-related civil action". They provide that such actions must (a) relate to an action to determine a claim arising out of Troubles-related conduct (defined in section 1); (b) be founded on a cause of action under tort, delict, fatal accident legislation or equivalent foreign law grounds; and (c) have the time limit for bringing the action given in the limitation legislation listed in subsection (6).
  3. Subsection (7) provides that the prohibition does not apply to an action where the court of first instance has given a final judgement on the matter in dispute before the section comes into force.
  4. Subsection (8) provides that where the prohibitions created by subsections (1) and (2) prevent an action from being brought or continued, no related proceedings (other than costs proceedings) may be continued or begun once the section has come into force.
  5. Subsection (9) provides that this section does not apply if, or to the extent that, the relevant Troubles-related civil action is an action to which section 47(1) applies (prohibition of civil claims alleging invalidity of interim custody orders).
  6. Subsection (10) defines what is meant in relation to "costs proceedings", "fatal accidents legislation", "other jurisdiction", "related proceedings", and "trial".
  7. Subsection (11) gives effect to Schedule 9 which makes provision about the process for determining whether the prohibition applies.
  8. Subsection (12) gives effect to Schedule 10 which disapplies the prohibition in relation to certain cross-border claims to which Directive 2008/52/EC (the Mediation Directive) to the extent its effect is preserved by the EU Withdrawal Agreement.

Section 44: Inquests, investigations and inquiries

  1. This section, together with Schedule 11, makes provision in relation to Troubles-related inquests and coronial investigations in England & Wales and Northern Ireland and equivalent processes in Scotland.
  2. Subsection (1) inserts three new sections after section 16 of the Coroners Act (Northern Ireland) 1959.
  3. New section 16A applies to all inquests in Northern Ireland into deaths resulting directly from the Troubles which began before 1 May 2024, with the exception of cases where, on that date, the only part of the inquest which remains to be carried out is the final determination, verdict or findings, or something subsequent to that (such as the making of a report). In respect of inquests to which the section applies, the coroner with conduct is prohibited from continuing the inquest after 1 May 2024 (subsection (2)) and must, as soon as is practicable, bring the inquest to a close (including by discharging the jury, where applicable) (subsection (3)). Subsection (4) makes clear that the provision in section 14(1) of the 1959 Act which requires a coroner to conduct an inquest is subject to these new provisions.
  4. New section 16B applies so as to prohibit the commencement of new Troubles-related inquests after 1 May 2024 (the date on which section 44 of the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 comes into force). This applies both to decisions by coroners as well as to the use of the power of the Attorney General or Advocate General for Northern Ireland under section 14 of the 1959 Act to direct that an inquest take place.
  5. New section 16C defines terms used in new sections 16A and B.

Section 45: Police complaints

  1. Subsection (1) inserts a new section 50A into Part 8 of the Police (Northern Ireland) Act 1998 ("the 1998 Act") (police complaints and disciplinary proceedings).
    • New section 50A applies to police complaints relating to conduct forming part of the Troubles, and provides that, on and after 1 May 2024 (the day the Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 comes into force), Part 8 no longer apply to such complaints, whether made before, after, or on that date. "Conduct forming part of the Troubles" has the meaning given in section 1 (see subsection (3) of that section).
    • Subsection (2) provides that on and after 1 May 2024, the Chief Constable, the Board, the Director or the Department of Justice is to cease to deal with any complaint referred before that day under section 52(7) of the 1998 Act insofar as the complaint relates to conduct forming part of the Troubles.
    • Subsection (3) provides that the Police Ombudsman is not to begin any formal investigation and must cease any existing investigations that relate to conduct forming part of the Troubles.
    • Subsection (4) clarifies that the section does not prevent the Ombudsman from carrying out a criminal investigation of a Troubles-related offence after 1 May 2024, if it is for the purposes of a public prosecution begun before that date.
  1. Subsections (2) and (3) make equivalent provision in respect of police misconduct regimes in England & Wales and in Scotland, by, respectively, amending section 28 of the Police Reform Act 2002 (application of complaints and misconduct provisions to matters occurring before 1 April 2004) and inserting a new section 47A (complaint or investigation relating to Northern Ireland Troubles) into the Police, Public Order and Criminal Justice (Scotland) Act 2006.

Section 46: Interim custody orders: validity

  1. This section and section 47 make provision in relation to "interim custody orders". These were orders made under Article 4 of the Detention of Terrorists (Northern Ireland) Order 1972 or a similar power under paragraph 11 of Schedule 1 the Northern Ireland (Emergency Provisions) Act 1973 (referred to as the "order-making functions" in this section). In R v Adams [2020] UKSC 19, the Supreme Court found that an interim custody order made under Article 4 of the 1972 Order was invalid because the power to make the order had not been exercised by the Secretary of State personally.
  2. Subsection (2) reverses the decision of the Supreme Court in R v Adams by providing that the relevant order-making functions are to be treated as always having been exercisable by authorised Ministers of the Crown as well as by the Secretary of State. Subsections (3) and (4) clarify certain of the effects of subsection (2) by providing, respectively, that an interim custody order is not to be regarded as ever having been unlawful, and that the detention of a person under the authority of such an order regarded is not to be regarded as ever having been unlawful, just because an authorised Minister of the Crown exercised any of the order-making functions in relation to the order. Subsection (5) clarifies that the effect of subsection (2) is not limited by subsections (3) and (4).
  3. Subsection (6) provides that this section and section 47 only apply where the exercise of the order-making functions was conduct forming part of the Troubles, reflecting the scope of the Act. (Under section 1(2), conduct forming part of the Troubles includes any conduct during the period 1 January 1966 – 10 April 1998 which was conduct connected with preventing, investigating, or otherwise dealing with the consequences of, any other event or conduct relating to Northern Ireland affairs.). Subsection (6) also provides that any exercise of an of the order-making functions is to be assumed to have been conduct forming part of the Troubles unless the contrary is shown. Subsection (7) defines key terms used in this section and in section 47, including "order-making functions", "authorised Minister of the Crown" and "interim custody order".

Section 47: Interim custody orders: prohibition of proceeding and compensation

  1. This section makes provision in relation to legal proceedings and claims for compensation which are connected with the validity of an interim custody order.
  2. Subsection (1) applies to prohibit civil actions from being continued or brought if, or to the extent that, the claim to be determined in the action involves an allegation that a person was detained under the authority of an interim custody order and that order was unlawful because an authorised Minister of the Crown exercised any of the order-making functions in relation to it. The prohibition applies from the day on which the section comes into force (two months’ after the date on which the Act is passed – see section 63(2)(a)).
  3. Subsection (2) applies to criminal proceedings relating to the quashing of a conviction (for example, criminal appeals), providing that such proceeding may not be continued or brought if, or to the extent that, the grounds for seeking to have the conviction quashed involve an allegation that a person was detained under the authority of an interim custody order which was unlawful because an authorised Minister of the Crown had exercised any of the order-making functions relating to that order. Again, this prohibition applies from the day on which section 47 comes into force.
  4. Subsection (3) creates an exception to the prohibition under subsection (2) for "pre-commencement proceedings". These are proceedings relating to the quashing of a conviction for which leave was given, or which follow from a referral by the Criminal Cases Review Commission made, before the commencement of the prohibition. Paragraph (b) of subsection (3) clarifies that where the exception applies, section 46 does not prevent the court from quashing the conviction on the ground that the interim custody order was unlawful.
  5. Subsection (4) makes provision in relation to claims for compensation for miscarriage of justice under the statutory scheme established by section 133 of the Criminal Justice Act 1988, where these relate to an interim custody order. Under this subsection, the payment of compensation under that scheme is prohibited in respect of a conviction that has been reversed solely on the ground that an interim custody order was unlawful because an authorised Minister of the Crown exercised any of the order-making functions in relation to that order.
  6. Subsection (5) provides that the power under section 58(2) to make regulations containing provision consequential on sections 46 or 47 may include provision which amends this Act (including this section). It also provides for the use of the made affirmative procedure for such regulations (if they are not made in accordance with the draft affirmative procedure under section 58(5), or the made negative procedure under section 58(6)).
  7. Subsection (6) defines the terms "commencement day", "compensation for miscarriage of justice", and "pre-commencement proceedings". The definitions set out in section 46(7) also apply to this section.

Section 48: Prisoner release

  1. This section gives effect to Schedule 12, which makes provisions relating to prisoner release under the Northern Ireland (Sentences) Act 1998.

Back to top