Legalize / United Kingdom / Northern Ireland / Act of the Northern Ireland Assembly

Justice Act (Northern Ireland) 2011

Type Act of the Northern Ireland Assembly

Publication 2011-05-04

Last updated 2018-06-01

State In force

Jurisdiction Northern Ireland

Department Statute Law Database

Source legislation.gov.uk

articles 1

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(8) A banning order made on appeal under this section is to be treated for the purposes of this Chapter as if it were an order of the court from which the appeal was brought.

Banning orders: “violence” and “disorder”

44

(1) In this Chapter “violence” means violence against persons or property and includes threatening violence and doing anything which endangers the life of any person.

(2) In this Chapter “disorder” includes—

(a) stirring up sectarian hatred or hatred against a group of persons defined by reference to colour, race, nationality (including citizenship), ethnic or national origins, religious belief, sexual orientation or disability or against an individual as a member of such a group,

(b) using threatening, abusive or insulting words or behaviour or disorderly behaviour,

(3) In this Chapter “violence” and “disorder” are not limited to violence or disorder in connection with a regulated match.

Banning orders: duration

45

(1) Subject to the following provisions of this Chapter, a banning order has effect for a period specified in the order beginning with the day on which the order is made.

(2) The period must not be longer than the maximum or shorter than the minimum.

(3) Where the order is made in addition to a sentence of imprisonment taking immediate effect, the maximum is 10 years and the minimum is 6 years; and in this subsection “imprisonment” includes any form of detention.

(4) In any other case, the maximum is 5 years and the minimum is 3 years.

Banning orders: additional requirements

46

(1) A banning order may, if the court making the order thinks fit, impose additional requirements on the person subject to the order in relation to any regulated matches.

(2) The court by which a banning order was made may, on an application made by—

(a) the person subject to the order, or

(b) the person who was the prosecutor in relation to the order,

vary the order so as to impose, replace or omit any such requirements.

(3) In the case of a banning order made by a magistrates' court, the reference in subsection (2) to the court by which it was made includes a reference to any magistrates' court ....

Termination of banning orders

47

(1) If a banning order has had effect for at least two-thirds of the period determined under section 45, the person subject to the order may apply to the court by which it was made to terminate it.

(2) On the application, the court may by order terminate the banning order as from a specified date or refuse the application.

(3) In exercising its powers under subsection (2), the court must have regard to—

(a) the person's character,

(b) the conduct of that person since the banning order was made,

(d) any other circumstances which appear to it to be relevant.

(4) Where an application under subsection (1) in respect of a banning order is refused, no further application in respect of the order may be made within the period of 6 months beginning with the day of the refusal.

(5) The court may order the applicant to pay all or any part of the costs of an application under this section.

(6) In the case of a banning order made by a magistrates' court, the reference in subsection (1) to the court by which it was made includes a reference to any magistrates' court ....

Information about banning orders

48

(1) Where a court makes a banning order the appropriate officer of the court—

(a) shall give a copy of it to the person to whom it relates (“P”);

(b) shall (as soon as reasonably practicable) send a copy of it to the Chief Constable and to any prescribed person;

(c) shall (as soon as reasonably practicable) send a copy of it to the police station (addressed to the officer responsible for the police station) at which P is to report under section 42(3); and

(d) in a case where P is detained in legal custody, shall (as soon as reasonably practicable) send a copy of it to the person in whose custody P is detained.

(2) Where a court terminates a banning order under section 47, the appropriate officer of the court—

(a) shall give a copy of the terminating order to P;

(b) shall (as soon as reasonably practicable) send a copy of it to the Chief Constable and to any prescribed person; and

(c) in a case where P is detained in legal custody, shall (as soon as reasonably practicable) send a copy of the terminating order to the person in whose custody P is detained.

(3) Where P is released from custody and, in a case where P has not reported under section 42(3) to a police station, is released more than 5 days before the expiry of the banning order, the person in whose custody P is shall (as soon as reasonably practicable) give notice of P's release to the Chief Constable.

(4) In this section—

“the appropriate officer”—in relation to a magistrates' court, means the clerk of petty sessions;in relation to the Crown Court, means the chief clerk;

“prescribed” means prescribed by order made by the Department.

Failure to comply with banning order

49

(1) A person subject to a banning order who fails to comply with any requirement imposed by the order is guilty of an offence.

(2) A person guilty of an offence under subsection (1) is liable on summary conviction to imprisonment for a term not exceeding 6 months, or a fine not exceeding level 5 on the standard scale, or to both.

CHAPTER 5 — ENFORCEMENT

Powers of enforcement

50

(1) A constable may, at any time during the period of a regulated match at any ground, enter any part of the ground for the purpose of enforcing the provisions of this Part.

(2) If a constable has reasonable grounds to suspect a person is committing or has committed an offence under this Part, the constable may search that person.

PART 5 — TREATMENT OF OFFENDERS

Increase in maximum term of imprisonment for common assault or battery

51

(1) The Offences against the Person Act 1861 (c. 100) is amended as follows.

(2) In section 42 (common assault or battery) for “three months” substitute “ 6 months ”.

(3) Section 43 (aggravated assault) is repealed.

Penalty for certain knife offences

52

In section 139A of the Criminal Justice Act 1988 (c. 33) (having knife etc. on school premises) for subsections (5) and (6) substitute—

(5) A person guilty of an offence under subsection (1) or (2) shall be liable— (a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both; (b) on conviction on indictment, to imprisonment for a term not exceeding 4 years, or to a fine, or to both. (6) In this section and section 139B “school premises” means land used for the purposes of a school, excluding any land occupied solely as a dwelling by a person employed at the school; and “school” has the meaning given by Article 2(2) of the Education and Libraries (Northern Ireland) Order 1986.

Extension of maximum period of deferment of sentence

53

(1) Article 3 of the Criminal Justice (Northern Ireland) Order 1996 (NI 24) (deferment of sentence) is amended as follows.

(2) In paragraph (2) (deferment not to exceed 6 months) for “6 months” substitute “ the relevant period ”.

(3) After paragraph (2) insert—

(2A) In paragraph (2) “the relevant period” means— (a) if the court makes an order under Article 28(1) of the Road Traffic Offenders (Northern Ireland) Order 1996 in respect of the offender, 6 months; (b) in any other case, 12 months.

Breach of licence conditions by sex offenders

54

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Sexual offences: closure orders

55

(1) Part 2A of the Sexual Offences Act 2003 (c. 42) (closure orders) is amended as follows.

(2) In section 136J(5) (discharge of closure order) for “judicial authority” substitute “ judicial officer ”.

(3) In section 136R (interpretation) at the end insert—

(15) In the application of this Part to Northern Ireland for any reference to a magistrates' court there shall be substituted a reference to a court of summary jurisdiction.

Financial reporting orders

56

(1) After section 78(3)(aa) of the Serious Organised Crime and Police Act 2005 (c. 15) (offences giving rise to the power to make a financial reporting order) add—

(ab) a common law offence of conspiracy to defraud, (ac) an offence under section 17 of the Theft Act (Northern Ireland) 1969 (false accounting),

(2) After section 78(3)(c) of the Serious Organised Crime and Police Act 2005 add—

(d) an offence under any of the following provisions of the Bribery Act 2010— - section 1 (offences of bribing another person), - section 2 (offences relating to being bribed), - section 6 (bribery of foreign public officials), (e) a common law offence of bribery, (f) an offence under section 1 of the Public Bodies Corrupt Practices Act 1889 (corruption in office), (g) the first two offences under section 1 of the Prevention of Corruption Act 1906 (bribes obtained by or given to agents), (h) an offence under any of the following provisions of the Proceeds of Crime (Northern Ireland) Order 1996— - Article 45 (acquisition, possession or use of proceeds of criminal conduct), - Article 46 (assisting another to retain the benefit of criminal conduct), - Article 47 (concealing or transferring proceeds of criminal conduct), (i) an offence under section 329 of the Proceeds of Crime Act 2002 (acquisition, use and possession of criminal property), (j) an offence of attempting, conspiring in or inciting the commission of an offence mentioned in paragraphs (aa), (ac) or (d) to (i), or an offence under Part 2 of the Serious Crime Act 2007 in relation to such an offence, (k) an offence of aiding, abetting, counselling or procuring the commission of an offence mentioned in paragraphs (aa), (ac) or (d) to (i).

Dangerous offenders: serious and specified offences

57

(1) The paragraph set out in subsection (2) is inserted—

(a) in Schedule 1 to the Criminal Justice (Northern Ireland) Order 2008 (NI 1) (serious offences) after paragraph 15; and

(b) in Schedule 2 to that Order (specified offences) after paragraph 15.

(2) The paragraph is—

(15A) An offence under section 2 (hi-jacking of vehicles or ships).

Supervised activity order in respect of certain financial penalties

58

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

PART 6 — ALTERNATIVES TO PROSECUTION

CHAPTER 1 — PENALTY NOTICES

Penalty offences and penalties

59

(1) For the purposes of this Chapter—

(a) “penalty offence” means an offence described in the first column of Schedule 4;

(b) the penalty payable in respect of a penalty offence is the amount specified in relation to that offence in the second column of that Schedule plus the amount of the offender levy determined under section 6.

(2) The Department may by order amend an entry in either column of Schedule 4 or add or remove an entry.

(3) But an order under subsection (2) may not provide for the penalty payable in respect of a penalty offence to be an amount which is more than a quarter of the amount of the maximum fine for which a person is liable on summary conviction of the offence.

(4) An order under subsection (2) may make such amendment of any provision of this Chapter as the Department considers appropriate in consequence of any change in Schedule 4 made by the order.

(5) No order shall be made under subsection (2) unless a draft of the order has been laid before, and approved by a resolution of, the Assembly.

Penalty notices

60

(1) A police officer who has reason to believe that a person over the age of 18 has committed a penalty offence may give that person a penalty notice in respect of the offence.

(2) Unless the notice is given in a police station, the police officer giving it must be in uniform.

(3) In this Chapter “penalty notice” means a notice offering the opportunity, by paying a penalty in accordance with this Chapter, to discharge any liability to be convicted of the offence to which the notice relates.

Form of penalty notice

61

A penalty notice must—

(a) state the alleged offence;

(b) give such particulars of the circumstances alleged to constitute the offence as are necessary to provide reasonable information about it;

(d) state the amount of the penalty;

(e) state the fixed penalty clerk to whom, and the address at which, the penalty may be paid; and

(f) inform the person to whom it is given of the right to ask to be tried for the alleged offence and explain how that right may be exercised.

Effect of penalty notice

62

(1) This section applies if a penalty notice is given to a person (“A”) under section 60.

(2) If A asks to be tried for the alleged offence, proceedings may be brought against A.

(3) Such a request must be made by a notice given by A—

(a) in the manner specified in the penalty notice; and

(b) before the end of the suspended enforcement period (as to which see section 63).

(4) A request which is made in accordance with subsection (3) is referred to in this Chapter as a “request to be tried”.

(5) If, by the end of the suspended enforcement period—

(a) the penalty has not been paid in accordance with this Chapter, and

(b) A has not made a request to be tried,

a sum equal to one and a half times the amount of the penalty may be registered under section 67 for enforcement against A as a fine.

General restriction on prosecution

63

(1) Proceedings for the offence to which a penalty notice relates may not be brought until the end of the period of 28 days beginning with the date on which the notice was given (“the suspended enforcement period”).

(2) If the penalty is paid before the end of the suspended enforcement period, no proceedings may be brought for the offence.

(3) Subsection (1) does not apply if the person to whom the penalty notice was given has made a request to be tried.

Guidance

64

The Department may issue guidance—

(a) about the exercise of the discretion given to police officers by this Chapter;

(b) about the issuing of penalty notices;

Procedure

Payment of penalty

65

(1) Payment of a penalty under this Chapter must be made to, or at the office of, the fixed penalty clerk specified in the penalty notice relating to that penalty.

(2) Without prejudice to payment by any other method, payment of a penalty under this Chapter may be made by properly addressing, pre-paying and posting a letter containing the penalty notice and the amount of the penalty and, unless the contrary is proved, shall be regarded as having been made at the time at which that letter would be delivered in the ordinary course of post.

(3) A letter is properly addressed for the purposes of subsection (2) if it is addressed to the fixed penalty clerk specified in the penalty notice relating to the penalty as the address at which the penalty may be paid.

(4) Sums paid by way of a penalty for an offence shall be treated as if they were fines imposed on summary conviction of that offence.

(5) In this Chapter the “fixed penalty clerk” means—

(a) the clerk of petty sessions; or

(b) such other person as the Department may by order direct.

Registration certificates

66

(1) This section and section 67 apply where by virtue of section 62(5) a sum determined by reference to the penalty for any offence may be registered under section 67 for enforcement against any person as a fine.

(2) In this section and section 67—

(a) that sum is referred to as a “sum payable in default”, and

(b) the person against whom that sum may be so registered is referred to as the “defaulter”.

(3) The Chief Constable—

(a) may in respect of any sum payable in default issue a certificate (a “registration certificate”) stating that the sum is registrable under section 67 for enforcement against the defaulter as a fine; and

(b) must cause any certificate so issued to be sent to the fixed penalty clerk.

(4) The Chief Constable may authorise a person to carry out the functions of the Chief Constable under subsection (3).

(5) A registration certificate must—

(a) give particulars of the offence to which the penalty notice relates; and

(b) state the name and last known address of the defaulter and the amount of the sum payable in default.

Registration of penalty

67

(1) Where the fixed penalty clerk receives a registration certificate in respect of any sum payable in default, the clerk must register that sum for enforcement as a fine by entering it in the Order Book of a court of summary jurisdiction.

(2) On registering any sum under this section for enforcement as a fine, the fixed penalty clerk must give to the defaulter notice of registration—

(a) specifying the amount of that sum and requiring payment of it by such date, not less than 28 days from the date of registration, as may be specified in the notice; and

(b) giving the information with respect to the offence included in the registration certificate by virtue of section 66(5)(a).

(3) On the registration of any sum in the Order Book of a court of summary jurisdiction by virtue of this section, any statutory provision referring (in whatever terms) to a fine imposed or a sum adjudged to be paid by a conviction of such a court shall, subject to regulations made under subsection (4), have effect in the case in question as if the sum so registered were a fine imposed by that court on the conviction of the defaulter on the date of the registration.

(3A) Thefixed penalty clerk must refer the case to a district judge (magistrates' courts) for the judge to consider whether to make a collection order; and the order may be made without a court hearing.

(3B) Where a collection order is made in that case, the date specified in the order as the date by which the sum due must be paid must, unless the court directs otherwise, be the same as the date specified in the notice of registration under subsection (2)(a).

(4) The Department may make such regulations with respect to the enforcement of payment of sums registered under this section as it considers appropriate.

(5) Regulations under subsection (4) may in particular—

(a) modify the provisions of the Magistrates' Courts (Northern Ireland) Order 1981 (NI 26) relating to the satisfaction and enforcement of sums adjudged to be paid by a conviction, as they have effect by virtue of subsection (3) in relation to sums registered under this section; and

(b) make such incidental, supplemental or consequential provision (including provision to modify a statutory provision) as appears to the Department to be expedient.

(6) In subsection (5) “modify” includes the making of additions, omissions, exceptions and amendments.

Challenge to notice

68

(1) This section applies where—

(a) a person who has received notice of the registration of a sum under section 67 for enforcement against that person as a fine makes a statutory declaration to the effect mentioned in subsection (2), and

(b) that declaration is, within 21 days of the date on which the person making it received notice of the registration, served on the fixed penalty clerk.

(2) The statutory declaration must state—

(a) that the person making the declaration was not the person to whom the relevant penalty notice was given, or

(b) that the person gave notice requesting to be tried in respect of the alleged offence as permitted by the penalty notice before the end of the suspended enforcement period.

(3) In any case within subsection (2)(a), the relevant penalty notice, the registration and any proceedings taken before the declaration was served for enforcing payment of the sum registered shall be void.

(4) In any case within subsection (2)(b)—

(a) the registration and any proceedings taken before the declaration was served for enforcing payment of the sum registered shall be void, and

(b) the case shall be treated after the declaration is served as if the person making the declaration had given notice requesting to be tried in respect of the alleged offence as stated in the declaration.

(5) References in this section to the relevant penalty notice are to the penalty notice relating to the penalty concerned.

(6) In any case within subsection (2)(b), Article 19(1)(a) of the Magistrates' Courts (Northern Ireland) Order 1981 (NI 26) (limitation of time) shall have effect as if for the reference to the time when the offence was committed there were substituted a reference to the date of the statutory declaration made for the purposes of subsection (1).

(7) Subsection (8) applies where, on the application of a person who has received notice of the registration of a sum under section 67 for enforcement against that person as a fine, it appears to a court of summary jurisdiction that it was not reasonable to expect that person to serve, within 21 days of the date on which that person received the notice, a statutory declaration to the effect mentioned in subsection (2).

(8) The court may accept service of such a declaration by that person after that period has expired; and a statutory declaration so accepted shall be taken to have been served as required by subsection (1).

(9) In this section references to proceedings for enforcing payment of the sum registered are references to any process issued or other proceedings taken for or in connection with enforcing payment of that sum (including the making of a collection order) .

(10) For the purposes of this section, a person shall be taken to receive notice of the registration of a sum under section 67 for enforcement against that person as a fine when that person receives notice either of the registration as such or of any proceedings for enforcing payment of the sum registered.

(11) Nothing in this section is to be read as prejudicing any rights a person may otherwise have by virtue of the invalidity of any action purportedly taken under this Chapter which is not in fact authorised by this Chapter in the circumstances of the case.

(12) Accordingly, references in this section to the registration of any sum or to any other action taken under this Chapter are not to be read as implying that the registration or action was validly made or taken in accordance with that provision.

Setting aside of sum enforceable under section 67

69

(1) A court of summary jurisdiction may, in the interests of justice, set aside a sum enforceable as a fine as a result of section 67.

(2) Where a court sets aside such a sum, it must give a direction that either—

(a) no further action is to be taken in respect of the alleged offence that gave rise to the penalty notice concerned; or

(b) that the case is to be treated as if the person concerned had given notice requesting to be tried in respect of the offence.

(3) Where a court gives a direction under subsection (2)(a), the penalty notice concerned, the registration and any proceedings taken for enforcing payment of the sum registered shall be void.

(4) Where a court gives a direction under subsection (2)(b)—

(a) the registration and any proceedings taken for enforcing payment of the sum registered shall be void; and

(b) Article 19(1)(a) of the Magistrates' Courts (Northern Ireland) Order 1981 (NI 26) (limitation of time) shall have effect as if for the reference to the time when the offence was committed there were substituted a reference to the date of the setting aside.

(5) In this section references to proceedings for enforcing payment of the sum registered are references to any process issued or other proceedings taken for or in connection with enforcing payment of that sum (including the making of a collection order) .

Interpretation

Interpretation of this Chapter

70

In this Chapter—

“collection order” means an order under section 3 of the Justice Act (Northern Ireland) 2016;

“defaulter” has the meaning given in section 66(2);

“fixed penalty clerk” has the meaning given by section 65(5);

“penalty notice” has the meaning given in section 60(3);

“penalty offence” has the meaning given in section 59(1);

“registration certificate” has the meaning given in section 66(3);

“request to be tried” has the meaning given by section 62(4);

“sum payable in default” has the meaning given by section 66(2);

“suspended enforcement period” has the meaning given by section 63(1).

CHAPTER 2 — CONDITIONAL CAUTIONS

Conditional cautions

71

(1) An authorised person may give a conditional caution to a person aged 18 or over (“the offender”) if each of the five requirements in section 72 is satisfied.

(2) In this Chapter “conditional caution” means a caution which is given in respect of an offence committed by the offender and which has conditions attached to it with which the offender must comply.

(3) The conditions which may be attached to such a caution are those which have either or both of the following objects—

(a) facilitating the rehabilitation of the offender,

(b) ensuring that the offender makes reparation for the offence.

(4) In this Chapter “authorised person” means—

(a) a police officer, or

(b) a person authorised by the Director of Public Prosecutions for Northern Ireland for the purposes of this section.

The five requirements

72

(1) The first requirement is that the authorised person has evidence that the offender has committed an offence, other than an offence triable only on indictment.

(2) The second requirement is that a Public Prosecutor decides—

(a) that there is sufficient evidence to charge the offender with the offence, and

(b) that a conditional caution should be given to the offender in respect of the offence.

(3) The third requirement is that the offender admits to the authorised person that the offender committed the offence.

(4) The fourth requirement is that the authorised person explains the effect of the conditional caution to the offender and warns the offender that failure to comply with any of the conditions attached to the caution may result in the offender's being prosecuted for the offence.

(5) The fifth requirement is that the offender signs a document which contains—

(a) details of the offence,

(b) an admission by the offender that the offender committed the offence,

(d) the conditions attached to the caution.

Variation of conditions

73

A Public Prosecutor may, with the consent of the offender, vary the conditions attached to a conditional caution by—

(a) modifying or omitting any of the conditions;

(b) adding a condition.

Failure to comply with conditions

74

(1) If the offender fails, without reasonable excuse, to comply with any of the conditions attached to the conditional caution, criminal proceedings may be instituted against the offender for the offence in question.

(2) The document mentioned in section 72(5) is to be admissible in such proceedings.

(3) Where such proceedings are instituted, the conditional caution is to cease to have effect.

Arrest for failure to comply

75

(1) If a constable has reasonable grounds for believing that the offender has failed, without reasonable excuse, to comply with any of the conditions attached to the conditional caution, the constable may arrest the offender without warrant.

(2) A person arrested under this section must be—

(a) charged with the offence in question,

(b) released without charge and on bail to enable a decision to be made as to whether the person should be charged with the offence, or

(3) Subsection (2) also applies in the case of—

(a) a person who, having been released on bail under subsection (2)(b), returns to a police station to answer bail or is otherwise in police detention at a police station;

(b) a person who, having been released on bail under Article 32A of PACE (bail elsewhere than at police station) as applied by section 76, attends at a police station to answer bail or is otherwise in police detention at a police station;

(c) a person who is arrested under Article 32D or 47A of PACE (power of arrest for failure to answer to police bail) as applied by section 76.

(4) Where the offender is released under subsection (2)(b), the custody officer must inform the offender that the offender is being released to enable a decision to be made as to whether the offender should be charged with the offence in question.

(5) A person arrested under this section, or any other person in whose case subsection (2) applies, may be kept in police detention to enable that person to be dealt with in accordance with that subsection. If the person is not in a fit state to enable that person to be so dealt with, or to enable that power to be exercised, that person may be kept in police detention until that person is.

(6) The power under subsection (5) includes power to keep the person in police detention if it is necessary to do so for the purpose of investigating whether the person has failed, without reasonable excuse, to comply with any of the conditions attached to the conditional caution.

(7) Subsection (2) must be complied with as soon as practicable after the person arrested arrives at the police station or, in the case of a person arrested at the police station, as soon as practicable after the arrest.

(8) Subsection (2) does not require a person who—

(a) falls within subsection (3)(a) or (b), and

(b) is in police detention in relation to a matter other than the conditional caution,

to be released if the person is liable to be kept in detention in relation to that other matter.

(9) In this Chapter—

“PACE” means the Police and Criminal Evidence (Northern Ireland) Order 1989 (NI 12);

“police detention” has the same meaning as in PACE (see Article 2(3) of PACE).

Application of PACE provisions

76

(1) In the case of a person arrested under section 75, the provisions of PACE specified in subsection (2) apply, with the modifications specified in subsection (3) and with such further modifications as are necessary, as they apply in the case of a person arrested for an offence.

(2) The provisions are—

(a) Article 32 (arrest elsewhere than at police station);

(b) Articles 32A to 32D (bail elsewhere than at police station);

(d) Article 35(1) to (6) (limitations on police detention);

(e) Article 37 (custody officers at police stations);

(f) Article 38(4) to (6) (record of grounds for detention);

(g) Article 39 (duties of custody officer after charge);

(h) Article 40 (responsibilities in relation to persons detained);

(i) Article 56A (x-rays and ultrasound scans).

(3) The modifications are—

(a) in Article 37(5) and (7), for the references to being involved in the investigation of an offence for which the person is in police detention substitute references to being involved—

(i) in the investigation of the offence in respect of which the person was given the conditional caution, or

(ii) in investigating whether the person has failed, without reasonable excuse, to comply with any of the conditions attached to the conditional caution;

(b) in Article 39(1)(a)(ia), for “arrested for” substitute “ charged with ”;

(c) in Article 40(2) and (3), for the references to an offence substitute references to a failure to comply with conditions attached to the conditional caution.

(4) Article 41 of PACE (review of police detention) applies to a person in police detention by virtue of section 75 as it applies to a person in police detention in connection with the investigation of an offence, but with the following modifications—

(a) omit paragraphs (8) and (8A);

(b) in paragraph (9), for the reference to Article 38(9) substitute a reference to the second sentence of section 75(5).

(5) The following provisions of PACE apply to a person released on bail under section 75(2)(b) as they apply to a person released on bail under Article 38 of PACE—

(a) Article 47A (power of arrest for failure to answer to police bail);

(b) Article 48 (bail after arrest).

(6) Article 55 of PACE (searches of detained persons) applies in the case of a person who falls within subsection (3) of section 75 and is detained in a police station under that section as it applies in the case of a person who falls within Article 35(8) of PACE and is detained at a police station under Article 38.

(7) Article 55A of PACE (searches and examination to ascertain identity) applies with the following modifications in the case of a person who is detained in a police station under section 75—

(a) in paragraphs (1)(a) and (12), after “as a person involved in the commission of an offence” insert “ or as having failed to comply with any of the conditions attached to his conditional caution ”;

(b) in paragraph (9)(a), after “the investigation of an offence” insert “ , the investigation of whether the person in question has failed to comply with any of the conditions attached to his conditional caution ”.

Code of practice

77

(1) The Department must prepare a code of practice in relation to conditional cautions.

(2) The code may, in particular, include provision as to—

(a) the circumstances in which conditional cautions may be given,

(b) the procedure to be followed in connection with the giving of such cautions,

(d) the category of authorised person by whom such cautions may be given,

(e) the persons who may be authorised by the Director of Public Prosecutions for Northern Ireland for the purposes of section 71,

(f) the form which such cautions are to take and the manner in which they are to be given and recorded,

(g) the places where such cautions may be given,

(h) the monitoring of compliance with conditions attached to such cautions,

(i) the exercise of the power of arrest conferred by section 75(1), and

(j) who is to decide how a person should be dealt with under section 75(2).

(3) After preparing a draft of the code the Department—

(a) must publish the draft,

(b) must consider any representations made to it about the draft, and

but the Department may not publish or amend the draft without the consent of the Attorney General for Northern Ireland.

(4) After the Department has proceeded under subsection (3), it must lay the code before the Assembly.

(5) When the Department has done so it may bring the code into operation by order.

(6) No order may be made under subsection (5) unless a draft of the order has been laid before, and approved by a resolution of, the Assembly.

(7) The Department may from time to time revise a code of practice brought into operation under this section.

(8) Subsections (3) to (7) are to apply (with appropriate modifications) to a revised code as they apply to an original code.

Powers of Probation Board

78

The powers of the Probation Board for Northern Ireland include power to make provision for—

(a) Public Prosecutors to be given assistance in determining whether conditional cautions should be given and which conditions to attach to conditional cautions;

(b) the supervision and rehabilitation of persons to whom conditional cautions are given.

Interpretation of this Chapter

79

In this Chapter—

“authorised person” has the meaning given by section 71(4),

“conditional caution” has the meaning given by section 71(2),

“the offender” has the meaning given by section 71(1),

“PACE” and “police detention” have the meanings given by section 75(9),

“Public Prosecutor” has the meaning given by section 29(5) of the Justice (Northern Ireland) Act 2002 (c. 26).

PART 7 — LEGAL AID, ETC.

Eligibility for criminal legal aid

80

(1) The Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 (NI 8) is amended as follows.

(2) For Article 31 substitute—

(31) (1) If on a question of granting a person free legal aid under Article 28, 28A, 29 or 30 there is a doubt whether it is desirable in the interests of justice that he should have free legal aid, the doubt shall be resolved in favour of granting him free legal aid. (2) For the purposes of Articles 28, 28A, 29 and 30 the question whether the means of a person are insufficient to enable him to obtain legal aid is to be determined in accordance with rules made for that purpose under Article 36. (3) Those rules may make provision for, and in connection with, the determination of that question and may in particular— (a) provide that the means of a person are to be taken to be insufficient to enable him to obtain legal aid if— (i) his income does not exceed a prescribed sum; or (ii) his disposable income does not exceed a prescribed sum; (b) provide for the calculation for the purposes of sub-paragraph (a) of the income and disposable income of a person; (c) provide for the manner in which, and person by whom, the means of a person are to be assessed for the purposes of making that determination; (d) provide for the review of that determination in prescribed circumstances; (e) make such other provision as appears to the Department of Justice necessary or expedient.

(3) In Article 33(1) (enquiries as to means of applicant for free legal aid) for the words from “the Department for Social Development to arrange” to the end substitute “ enquiries to be made into the means of that person, and a report made to the court, in accordance with rules under Article 36. ”.

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Order to recover costs of legal aid

81

(1) The Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 (NI 8) is amended as follows.

(2) After Article 33 insert—

(33A) (1) Where a person has been granted a criminal aid certificate the court may, subject to rules made under Article 36, make an order requiring him to pay some or all of the cost of legal aid incurred to the date of the order unless he is already subject to an action under Article 33(3) to recover that cost. (2) Rules made under Article 36 may make provision about— (a) the descriptions of courts by which, and individuals against whom, an order under paragraph (1) may be made, (b) the circumstances in which such an order may be made and the principles to be applied in deciding whether to make such an order and the amount to be paid, (c) the persons who may apply to the court for such an order to be made and the circumstances and manner in which that application may be made, (d) the determination of the cost of legal aid incurred for the purposes of the making of such an order, (e) the manner in which, and persons by whom, an investigation into the means of any person may be carried out for the purposes of making such an order, (f) the furnishing of information and evidence to the court or the Northern Ireland Legal Services Commission for the purpose of enabling the court to decide whether to make such an order and (if so) the amount to be paid, (g) prohibiting persons who are required to furnish information or evidence from dealing with property until they have furnished the information or evidence or until a decision whether to make an order, or as to the amount to be paid, has been made, (h) rights of appeal against such an order, (i) the person or body to which, and manner in which, payments required by such an order must be made and what that person or body is to do with them, (j) the enforcement of such an order (including provision for the imposition of charges in respect of unpaid amounts), and (k) such other matters as the Department of Justice considers necessary or appropriate.

(3) In Article 33 (report on means of applicant) at the end insert—

(4) Paragraph (3) does not apply in relation to a person who is already subject to an order under Article 33A(1) in respect of the cost of legal aid incurred.

Eligibility of persons in receipt of guarantee credit

82

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Legal aid for certain bail applications

83

(1) Part 3 of the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 (NI 8) (criminal proceedings) is amended as follows.

(2) In Article 28(7) (legal aid in the magistrates' court)—

(a) after sub-paragraph (b) insert—

(c) applying to the Crown Court for bail under section 92 of the Justice Act (Northern Ireland) 2011;

;

(b) after “being work done” insert “ , in a case falling within sub-paragraph (a) or (b), ”.

(3) In Article 29(4) (legal aid in the Crown Court) at the end add

and (c) applying to a magistrates' court for bail under section 91 of the Justice Act (Northern Ireland) 2011.

Financial eligibility for grant of right to representation

84

(1) The Access to Justice (Northern Ireland) Order 2003 (NI 10) is amended as follows.

(2) After Article 27 insert—

(27A) (1) Power under Article 26 or 27 to grant a right to representation may only be exercised in relation to an individual whose financial resources appear to the court or (as the case may be) the Commission to be such that, under regulations, he is eligible to be granted such a right. (2) Power under Article 26(9) or 27(1) to withdraw a right to representation shall be exercised in relation to an individual if it appears to the court or Commission— (a) that his financial resources are not such that, under regulations, he is eligible to be granted such a right, or (b) that he has failed, in relation to the right, to comply with regulations under this Article about the furnishing of information. (3) Regulations may make provision for exceptions from paragraph (1) or (2). (4) Regulations under this Article may include— (a) provision requiring the furnishing of information; (b) provision for the notification of decisions about the application of— (i) paragraph (1) or (2), or (ii) regulations under paragraph (3); (c) provision for the review of such decisions. (5) The provision which may be made under paragraph (4)(c) includes provision prescribing circumstances in which the person or body reviewing a decision may refer a question to the High Court for its decision. (6) Section 35 of the Judicature (Northern Ireland) Act 1978 (c. 23) (appeals to the Court of Appeal from the High Court) shall not apply to decisions of the High Court on a reference under regulations under this Article.

(3) In Article 29 (criteria for grant of right to representation)—

(a) in paragraph (1) for the words from “a right to representation” to “varied or removed” substitute “ power to grant a right to representation should be exercised ”,

(b) for paragraph (4) substitute—

(4) Regulations may prescribe circumstances in which the grant of a right to representation shall be taken to be in the interests of justice.

(4) In Article 46(5) after “20A,” insert “27A,

Litigation funding agreements

85

Article 41 of the Access to Justice (Northern Ireland) Order 2003 (NI 10) (prohibition on ... funding services under litigation funding agreements) is repealed.

Civil legal services: scope

86

(1) In Schedule 2 to the Access to Justice (Northern Ireland) Order 2003 (NI 10) (civil legal services) paragraph 2 is amended as follows.

(2) After sub-paragraph (b) insert—

(ba) proceedings in the Crown Court for the variation or discharge of an order under Article 7 or 7A of the Protection from Harassment (Northern Ireland) Order 1997; (bb) proceedings in the Crown Court for the variation or discharge of a witness anonymity order under section 91 or 92 of the Coroners and Justice Act 2009;

(3) In sub-paragraph (d)(xii) after the words “under section” insert “ 215A, ”.

(4) After sub-paragraph (d)(xv) insert—

(xvi) for the variation or discharge of an order under Article 7 or 7A of the Protection from Harassment (Northern Ireland) Order 1997, (xvii) for an order or the variation, renewal or discharge of an order under paragraph 5 or 10 of Schedule 5 to the Counter-Terrorism Act 2008, (xviii) for the discharge of an investigation anonymity order under section 80 of the Coroners and Justice Act 2009, (xix) for the variation or discharge of a witness anonymity order under section 91 or 92 of the Coroners and Justice Act 2009;

(5) In sub-paragraph (i) omit “the Asylum and Immigration Tribunal or”.

(6) After sub-paragraph (i) insert—

(ia) proceedings before the First-tier Tribunal under— (i) Schedule 2 to the Immigration Act 1971; (ii) section 40A of the British Nationality Act 1981; (iii) Part 5 of the Nationality, Immigration and Asylum Act 2002; or (iv) regulation 26 of the Immigration (European Economic Area) Regulations 2006, (ib) proceedings before the Upper Tribunal arising out of proceedings within sub-paragraph (ia),

Enhanced legal aid fees for certain solicitors

87

Schedule 5 (which makes provision for enhanced legal aid fees for certain solicitors) has effect.

PART 8 — SOLICITORS' RIGHTS OF AUDIENCE

Authorisation of Society conferring additional rights of audience

88

(1) The Solicitors (Northern Ireland) Order 1976 (NI 12) is amended as follows.

(2) In Article 6 (regulations as to the education, training, etc. of persons seeking admission or having been admitted as solicitors) after paragraph (1) insert—

(1A) The Society shall make regulations with respect to the education, training or experience to be undergone by solicitors seeking authorisation under Article 9A.

(3) After Article 9 insert—

(9A) (1) A person who is qualified to act as a solicitor may apply to the Society for an authorisation under this Article. (2) An application under paragraph (1)— (a) shall be made in such manner as may be prescribed; (b) shall be accompanied by such information as the Society may reasonably require for the purpose of determining the application; and (c) shall be accompanied by such fee (if any) as may be prescribed. (3) At any time after receiving the application and before determining it the Society may require the applicant to provide it with further information. (4) The Society shall grant an authorisation under this Article if it appears to the Society, from the information furnished by the applicant and any other information it may have, that the applicant has complied with the requirements applicable to him by virtue of regulations under Article 6(1A). (5) An authorisation granted to a person under this Article ceases to have effect if, and for so long as, that person is not qualified to act as a solicitor. (6) The Society may by regulations provide that any person who has completed such education, training or experience as may be prescribed, before such date as may be prescribed shall be taken to hold an authorisation granted under this Article.

(4) In Article 10 (practising certificates and register of practising solicitors) after paragraph (2C) insert—

(2D) Every entry in the register shall include details of any authorisation granted under Article 9A to the solicitor to whom the entry relates.

Rights of audience of solicitors

89

(1) In section 106 of the Judicature (Northern Ireland) Act 1978 (c. 23) (rights of audience in the High Court and Court of Appeal) after subsection (3) insert—

(3A) A solicitor who holds an authorisation under Article 9A of the Solicitors (Northern Ireland) Order 1976 shall have the same right of audience in any proceedings in the High Court or Court of Appeal as counsel in those courts and any such right is in addition to any right of audience which a solicitor would have apart from this subsection.

(2) After Article 40 of the Solicitors (Northern Ireland) Order 1976 (NI 12) insert—

(40A) (1) Paragraph (2) applies where— (a) it appears to a solicitor that a client requires, or is likely to require, legal representation in any proceedings in the High Court or the Court of Appeal; (b) either— (i) that solicitor is minded to arrange for another solicitor who is an authorised solicitor to provide that representation; or (ii) that solicitor is an authorised solicitor and is minded to provide that representation; and (c) in representing that client in the High Court or Court of Appeal, a solicitor would need to exercise the right of audience conferred by section 106(3A) of the Judicature (Northern Ireland) Act 1978. (2) The solicitor must advise the client in writing— (a) of the advantages and disadvantages of representation by an authorised solicitor and by counsel, respectively; and (b) that the decision as to whether an authorised solicitor or counsel is to represent the client is entirely that of the client. (3) The Society shall make regulations with respect to the giving of advice under paragraph (2). (4) A solicitor shall— (a) in advising a client under paragraph (2), act in the best interest of the client; and (b) give effect to any decision of the client referred to in paragraph (2)(b). (5) For the purposes of this Article compliance with paragraph (2) in relation to any proceedings in a court in any cause or matter is to be taken to be compliance with that paragraph in relation to any other proceedings in that court in the same cause or matter. (6) If a solicitor contravenes this Article, any person may make a complaint in respect of the contravention to the Tribunal. (7) In this Article and Article 40B “authorised solicitor” means a solicitor who holds an authorisation under Article 9A. (40B) (1) Where— (a) a solicitor has complied with Article 40A(2) in relation to the representation of a client in any proceedings in the High Court or Court of Appeal; (b) that client is to be represented in those proceedings by an authorised solicitor; and (c) in representing that client in those proceedings the authorised solicitor would need to exercise the right of audience conferred by section 106(3A) of the Judicature (Northern Ireland) Act 1978, the solicitor shall inform the High Court or (as the case may be) the Court of Appeal of the fact mentioned in sub-paragraph (a) in such manner and before such time as rules of court may require. (2) For the purposes of this Article compliance with paragraph (1) in relation to any proceedings in a court in any cause or matter is to be taken to be compliance with that paragraph in relation to any other proceedings in that court in the same cause or matter. (3) If a solicitor contravenes paragraph (1), any person may make a complaint in respect of the contravention to the Tribunal.

(3) In Article 50 of the County Courts (Northern Ireland) Order 1980 (NI 3) (rights of audience) in paragraph (1)(c) omit the words “, but not a solicitor retained as an advocate by a solicitor so acting”.

Consequential and supplementary provisions

90

(1) In Article 75 (regulations) of the Solicitors (Northern Ireland) Order 1976 (NI 12) after paragraph (2) insert—

(2A) Regulations under Article 6(1A), 9A(6) or 40A(3) also require the concurrence of the Department of Justice, given after consultation with the Attorney General. (2B) The Department of Justice shall not grant its concurrence to any regulations under Article 6(1A) or 9A(6) unless regulations have been made under Article 40A(3) and are in operation.

(2) The Department may by order make such amendments to—

(a) the Criminal Appeal (Northern Ireland) Act 1980 (c. 47),

(b) the Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 (NI 8),

(d) section 184 of the Extradition Act 2003 (c. 41),

as appear to the Department to be necessary or expedient in consequence of, or for giving full effect to, the provisions of this Part.

PART 9 — MISCELLANEOUS

Bail: compassionate grounds

91

(1) A person who—

(a) has been remanded in custody by a magistrates' court, and

(b) is for the time being held in custody,

may apply to any magistrates' court for bail on compassionate grounds specified in the application.

(2) On an application under this section the magistrates' court may grant bail.

(3) For the purposes of this section and section 92 a person is held in custody if that person is held in custody in a prison, young offenders' centre, juvenile justice centre or other institution.

(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Bail: repeat application

92

(1) This section applies where—

(a) a person has been remanded in custody by a magistrates' court and is held in custody;

(b) that person made an unsuccessful application for bail to that court; and

(c) there has been no such change of circumstances as would enable that court to hear another application for bail by that person.

(2) The person may apply to the Crown Court for bail.

(3) On an application under this section the Crown Court may grant bail.

Possession of offensive weapon with intent to commit an offence

93

(1) A person who is in possession of an offensive weapon with intent to commit an indictable offence is guilty of an offence.

(2) In subsection (1) “offensive weapon” means any article made or adapted for use for causing injury to the person, or intended by the person in possession of it for such use.

(3) A person guilty of an offence under subsection (1) shall be liable—

(a) on summary conviction, to imprisonment for a term not exceeding 12 months or to a fine not exceeding the statutory maximum, or to both;

(b) on conviction on indictment, to imprisonment for a term not exceeding 4 years, or to a fine, or to both.

Power of Department to make payments in relation to prevention of crime, etc.

94

(1) The Department may, with the consent of the Department of Finance and Personnel, make such payments to such persons as the Department considers appropriate in connection with measures intended to—

(a) prevent crime or reduce the fear of crime; or

(b) support the recovery of criminal assets and proceeds of crime.

(2) A payment under subsection (1) may be made on such conditions as the Department may, with the consent of the Department of Finance and Personnel, determine.

Publication of material relating to legal proceedings

95

(1) In section 12(4) of the Administration of Justice Act 1960 (c. 65) (publication of information relating to proceedings in private) at the end insert “ (and in particular where the publication is not so punishable by reason of being authorised by rules of court) ”.

(2) In Article 12(3) of the Family Law (Northern Ireland) Order 1993 (NI 6) (family proceedings rules) after sub-paragraph (h) insert—

(i) authorise, for the purposes of the law relating to contempt of court, the publication in such circumstances as may be specified of information relating to family proceedings held in private.

(3) In Article 165(2) of the Children (Northern Ireland) Order 1995 (NI 2) (rules of court) after sub-paragraph (j) insert—

(k) authorising, for the purposes of the law relating to contempt of court, the publication in such circumstances as may be specified of information relating to family proceedings held in private.

(4) In Article 170(2) of the Children (Northern Ireland) Order 1995 (privacy for children involved in certain proceedings) after “publish” insert “ to the public at large or any section of the public ”.

Membership of Crown Court Rules Committee

96

In section 53(1) of the Judicature (Northern Ireland) Act 1978 (c. 23) (Crown Court Rules Committee) in paragraph (g) for “one other” substitute “ a ” and after paragraph (i) insert—

(j) a Public Prosecutor nominated by the Director of Public Prosecutions for Northern Ireland; (k) a practising member of the Bar of Northern Ireland or a practising solicitor nominated by the Attorney General for Northern Ireland,

Membership of Court of Judicature Rules Committee

97

(1) In section 54(1) of the Judicature (Northern Ireland) Act 1978 (Court of Judicature Rules Committee) in paragraph (d) for “one other” substitute “ a ”, omit the “and” at the end of paragraph (e) and after paragraph (f) insert—

(g) the Attorney General for Northern Ireland or a practising member of the Bar of Northern Ireland or a practising solicitor nominated by the Attorney General for Northern Ireland,

(2) In section 73(1) of the Justice (Northern Ireland) Act 2002 (c. 26) omit the “and” at the end of the substituted paragraph (e) and after the substituted paragraph (f) insert—

(g) the Attorney General for Northern Ireland or a barrister or solicitor nominated by the Attorney General for Northern Ireland.

Funds in court: investment fees or expenses

98

(1) Section 81 of the Judicature (Northern Ireland) Act 1978 (investment of funds in court) is amended as follows.

(2) The existing provision becomes subsection (1) of that section.

(3) After that subsection insert—

(2) If the High Court or (as the case may be) the county court so orders, the power of the Accountant General under subsection (1)(a)(iii) or (iv) to invest a sum of money in the Court of Judicature or the county court in securities includes the power to pay out of that sum any fees or expenses which are— (a) incurred in connection with, or for the purposes of, investing that sum; and (b) of an amount or at a rate approved by the High Court or (as the case may be) the county court. (3) A court shall not make an order under subsection (2) unless the court considers it necessary and proportionate in all the circumstances to do so. (4) The High Court or (as the case may be) the county court may, on an application made to it, order that all or part of any sum paid by way of fees or expenses under subsection (2) be refunded where it appears to the court to be in the interests of justice to do so.

Appeals from Crown Court: Proceeds of Crime Act 2002

99

In section 9 of the Criminal Appeal (Northern Ireland) Act 1980 (c. 47) (appeal in cases dealt with by Crown Court) after subsection (3B) insert—

(3C) A person who— (a) is convicted of any offence by a magistrates' court, and (b) is committed by that court to the Crown Court under section 218 of the Proceeds of Crime Act 2002 in respect of that offence, may appeal to the Court of Appeal against any sentence passed on him for that offence by the Crown Court.

Witness summons in magistrates’ court

100

(1) For Article 118 of the Magistrates' Courts (Northern Ireland) Order 1981 (NI 26) and the italicised cross heading before it substitute—

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