Jim Allister
North Antrim · Traditional Unionist Voice · Northern Ireland
“<BR /> <BR />Last week, a 'News Letter' editorial rightly drew attention to the fact that there is a chorus of demand that it is up to the British Government to pay for that, but no pressure whatsoever on the GAA — the primary beneficiary — which still persists that its contribution will be a miserly £15 million.”
“Public money, we are constantly told, is in short supply and scarce. I am sure that it is, and will continue to be so. Yet, while many in the House pay lip service to the need to prioritise health, there seems to be a majority here who would prioritise public spending on a sporting facility, namely Casement Park.”
“That editorial stated that the DUP "should make clear" its view on the Casement Park costs. Yet, yesterday, we had the launch of the DUP manifesto and not a mention of Casement Park. We have a Minister — Minister Lyons — who has ruled out clawback for non-GAA use of that stadium.”
“Therefore, the Minister comes to the House with a proposal that, effectively, has been written in Brussels, because it tells us how much we can give to our fishing industry in Northern Ireland.”
“The Minister told us that this is a scheme under the Fisheries Act, which it is, whereby all the devolved regions and England and Wales can make their own provision.”
“Rather than removing the green lane, the introduction of the new customs border arrangements will further advance the development of the green lane, thereby helping to make the Irish Sea border and our alienation from the rest of the UK more firmly established.”
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“If that lady suffered psychological harm, there is the essential component of the offence. There is no limitation on those matters. She suffered psychological harm. That meets with what I am saying in the amendment. It can be physical or psychological, but the Bill says that it need be nothing — nothing.”
“No, I am absolutely not saying that. My amendment says that I want to make the offence in clause 1(2)(a):”
“He might have failed in his mission. Still guilty"? That is like saying that a thief who went to steal but was not able to steal anything is still guilty of theft. Yes, he is guilty of attempted theft, and that is what the law already provides, but he is not guilty of theft. <BR /> <BR />By the same token, the miscreant husband who seeks to abuse his wife and who has that necessary intent but fails to cause physical or psychological harm can still be guilty of the attempt, but he cannot be guilty of the actuality that he never obtained. That is the distinction, and that is why I say that to pretend that he is the same position as though he had actually created the harm is a corruption of the very components of what is a criminal offence.”
“It also states that, for such an offence, a person guilty of attempt shall be liable on conviction to the same penalty that he would have had if he had committed the actual offence. <BR /> <BR />There you have the answer already provided in the law. If someone attempts to abuse their wife and has the intent to abuse their wife, either they can be charged, in the first place, with attempting, or they can be found guilty, having been charged with the actual abuse of merely the attempt. On either, they can get the same penalty. We are talking about an offence that can reap 14 years in jail. You can reap 14 years in jail for the same attempted offence, so why are we in the business of corrupting the law by taking out of this offence the very core of what is the offence and saying, "No harm required. Still an offence.”
“<BR /> <BR />Let me just develop the point, if I may, before I take a further intervention. I have a situation. Let us say that a man — it does not have to be a man — intends to inflict the most horrible abuse on his wife, partner or whomever, but his wife or partner suffers no harm. Some might ask whether he should then walk away. No: the law has covered that. The law provides the offence of attempt. Under the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983, it states:”
“I made those points in the Second Stage debate, so the Committee had the opportunity to hear them. Had I been invited to do so, I would gladly have expounded on them further. <BR /> <BR />With regard to drink-driving, quite clearly, the offence — the actus reus — is the act of driving. The act of driving is in itself inherently dangerous because of the drink involved and, therefore, the risk involved. That is intertwined in the act of driving. However, when we say that we will create an offence of domestic abuse, as surely as night follows day, we would look to see what abuse or harm was caused. When one looks, one sees that there is a blank page. In fact, there is not just a blank page: one is told that there does not need to be anything on the page. There does not need to be any harm.”
“I was to give one down there. If there is time, I will.”
“I will in one moment. How can that be right? The premise upon which they would be guilty is because some mythical reasonable person says that they would consider their behaviour to be likely to cause harm. Sorry: it is not about what your neighbour, someone else or some reasonable man thinks. The fundamental question is this: was there harm? If there was no harm, while it might be utterly reprehensible behaviour, the intent of which might be odious — it clearly is — there was no harm. Yet, the law here is trying to say, "Never mind that. Without harm, you can be guilty as though you had created harm".”
“I respectfully disagree. I believe that it is exactly as clear-cut as I am suggesting, because the course of behaviour has to have a product. Theft has to have a product. Take homicide. What is homicide? It is the unlawful killing with the intent to kill or to cause grievous bodily harm. That is the mens rea — the intent to kill or cause GBH — but the actus reus is the product: the killing. The actus reus is the product. Where is the product here? We are expressly told in clause 3 that there does not have to be any product. I find that astounding, that you can create an offence where the person, yes, must have the intent and the guilty mind and must want to do it, but, if they fail to cause harm, no matter how much they wanted to try to cause harm, they are still guilty as though they had caused that harm. How can that be right?”
“The actus reus is the taking of property that belongs to another. It has the two components. It does not state that you can commit theft without taking, but, apparently, you can commit abuse without causing harm. Take the offence of murder.”
“It is quite remarkable that you can create a criminal offence without there actually being any harm. You call it domestic abuse, but you do not have to prove any harm. Let us take any other offence. Let us take the offence of theft. "Theft" is defined as the dishonest — that is part of the mens rea — appropriation of:”
“You cannot read that without reading clause 3(1), which states:”
“Note that it does not state that the further conditions are that B suffers physical or psychological harm. It is that "a reasonable person would consider" B:”
“etc. That is the guilty mind. That is the intent. That is the mens rea. When we come to the actus reus of that offence, we are into much greater obscurity and difficulty. We are into that obscurity and difficulty even though the offence is titled "The domestic abuse offence", which, naturally, causes you to think that we are looking for actual domestic abuse. Clause 1(1) states:”
“They are from long ago; they originate from just over 400 years ago, when the famous jurist Sir Edward Coke, who went on to become chief justice of England, expounded the phrase that a criminal offence involved both the actus reus and the mens rea. <BR /> <BR />When we come to look at clause 1 and the creation of this criminal offence, I invite the House to look at and examine the mens rea and actus reus of the offence. The mens rea is quite straightforward. It is in clause 1(2)(b), which states:”
“I would like the House to remember that when debating these issues. <BR /> <BR />When we come to clause 1, we are, of course, in the business of creating a criminal offence. A criminal offence is normally expected to have certain clear component parts. In any law school, probably the first lecture or tutorial for a criminal law student is on the subject of what comprises a criminal offence. The law student will be told that there are two key components to any criminal offence: what, in law, is called the mens rea — the guilty mind — and the actus reus — the act that does the harm. Those two phrases are not just obscure Latin phrases that are plucked from long ago.”
“I am obliged. When the recently retired Attorney General, Mr John Larkin, gave evidence to the Committee, he said:”
“I am sure that the Minister is aware of the claims that forestry provides ammonia sequestration. The Centre for Hydrology and Ecology has made that case very strongly. Will that feature in his ammonia strategy? Is forestry, even in and about the bogs, which are the concern and the inhibitor to some growth in the poultry industry, a possibility?”
“There are many small farmers who will never be able to afford the equipment for that, so, in adjusting those policies, will he, please, bear in mind that no farmer should be left behind?”
“I generally welcome the Minister's statement. I am sure that it is a great disappointment to the many doomsayers, some in the House and some outside, who told us that, after Brexit, there would be no farming and no money because the cash cow of the EU would be no more. What a lot of nonsense that was. <BR /> <BR />I generally welcome many of the things in the statement, particularly the end to greening, but I notice the pledge that no farmer will be left behind, so I ask the Minister this: when it comes to the application of the environmental policies, can he ensure that that happens? For example, he has talked to the House about introducing a requirement for injection-only slurry spreading.”
“Will the Minister explain to the House to whom the Shared Environmental Service is accountable? In a number of cases that I have been involved with in my constituency, it has taken quite a belligerent attitude. When you push it, it says, "We are waiting on DAERA to give us some guidance". Is the Shared Environmental Service accountable to DAERA, to councils or to the Minister's Department?”
“Does the Member share any surprise that, when it comes to this issue, there is very little talk about ammonia sequestration? Planting trees is, according to the Centre for Ecology and Hydrology, a very efficient way to sequester ammonia. Why do we not have a strategy? The Agriculture Minister has promised an ammonia strategy, and he is supposed to have a tree planting policy. Should those not be gelled together to deal with the issue rather than talk about moratoriums, which put people out of business?”
“On a point of order. Miss Dillon, in her last intervention, seemed to infer that I had some sort of vested interest in these matters. I make it plain that I am now a non-practising barrister. I have no vested interests, financial or otherwise, in any of these matters, and I would like Miss Dillon to consider withdrawing that suggestion.”
“Again, the 2015 Bill said that you could do that if it is in the interests of justice, whereas the 2020 Bill says "you cannot do it; forget about the interests of justice, you cannot do it". So, Members, that is the critical question in this Bill: are you prepared — each and every one of you — to take a step which removes something which is premised on the interests of justice from our legislation? If you are then vote this Bill through, but if you are not then think again. Thank you.”
“Then the Department wants to give itself the power by order to extend the list of offences. Maybe it is in here, but it was not clear to me whether that has to be done by affirmative resolution, negative resolution, any resolution or whether it is just an arbitrary power for the Department. I think that the Committee needs to look at that. <BR /> <BR />There is something else that it wants to take out; in the 2015 Act we made a provision that there was a right to call evidence at the application — in what was the old no Bill process. So, when you get to the Crown Court and the lawyers for the defence think that there is not the evidence to stack that particular charge up — it is more likely to be out of a number of charges — and, therefore, they want to call some evidence — it is going to be defence evidence — to help to knock that out.”
“<BR />Is that what you are saying? If a magistrates decides that it is in the interests of justice to hear some oral evidence then who are we, in this House, to go behind that to say "Oh no, we know better. We do not like this notion of the interests of justice so we are going to exterminate that from the Bill". Of course, it is clear, in paragraph 17 of this document, that the ultimate aim is to liquidate committals altogether. So, everyone is returned; there is no sworn evidence, tested evidence or sifted evidence, just return them. Whoever said it is right, that will create an inevitable logjam in our Crown Court. It will just push it down the pipe, as far as that is concerned. Of course, as the game plan is for no committals, you have to get rid of the opportunity for oral evidence in clauses 1 and through clauses 1, 2 and 3.”
“So much for the Assembly. There is something of the arrogant about that. The Assembly debates and decides, it has its Committee Stage, it takes amendments and takes a view, but the Department has produced a document that relies on a consultation from 2012 and says, "We are still convinced that that is the best, and we don't bother to ask those who might take a contrary view". I do not think that that is how we should make legislation in this House. Two thousand and fifteen was an honourable compromise. It removed the wholesale right to committal, but it preserved it in those circumstances where it was in the interests of justice. I do not think that that is something that is open to abuse. What you are saying is that if that is abused, there are magistrates in this country who have a wrong view of what is in the interests of justice.”
“Do you think that article 6 of the European Convention, which still applies, now allows shortcuts in the process of justice? That is what you are being asked to legislate for. <BR /> <BR />Paragraph 30 of this document goes on to say:”
“However, the obvious gap is that, not once, in this document is it indicated that the solicitors' organisation, the Law Society, was ever asked for its opinion or that the Bar Council was ever asked for its opinion. It is so selective that it seems to be interested only in views that might agree with it. What sort of a tawdry document is it to accompany a Bill that eschews consultation, other than that which suited in 2012; which eschews the democratic decision of this elected House in 2015? <BR /> <BR />Members are, of course, fully entitled to change their mind, but I have reminded you what some of you voted for in 2015. Have the fundamentals changed? Are the principles different? Are your principles different from what they were in 2015? Do you now think that it should be an easier process?”
“I find it quite surprising that we want to arrive at a situation where mere statements — no sifting, no rigour, no testing — are enough to send one to trial. Indeed, we want to do more than that. We do not even want to have a process; we just want to send them for trial. <BR /> <BR />I was astounded when I read the explanatory and financial memorandum. I hope that all Members have read it, because we discover in it that, for this proposal, the House is being asked to rely on a consultation from 2012 — eight years ago. Is that good enough for this House? A Minister is bringing a proposal with a backup document that relies on a consultation from eight years ago. It recites what the great and the good think and what some very knowledgeable politicians think and Fresh Starts and New Decades and all sorts of things.”
“Really, we are saying — there is no dodging of this for this House, and there will be no dodging of this for the Committee — that the question that you are being asked in this Bill is, "Do you want to remove the protection that says that committal happens, and only happens, if it is in the interests of justice?" If your answer is, "I don't care about the interests of justice; I just want to remove it", you will vote this Bill through, lock, stock and barrel. However, if you do care about the interests of justice, you will ask yourself what is wrong with a magistrate having to be persuaded that oral evidence can be called if it is in the interests of justice. What do the courts exist for, if not the interests of justice?”
“What this House arrived at as a compromise in 2015 was that if the magistrate presiding is persuaded that in the interests of justice he should hear some oral evidence, then he hears it. What this House in 2020 is being asked to do is to liquidate the interests of justice, to take away from this process the opportunity for the interests of justice to be served. <BR /> <BR />I could understand this House's stance if this was a choice between everyone can have a PI or a mixed committal and it is an absolute right, or nobody has it. I can understand that, but when the choice is between this House having reached a settled view in 2015 that those who can persuade a magistrate that is in the interests of justice that evidence is heard, then they can have a committal.”
“Very often, the defence strategically decides not to, because they want to keep their powder dry, so to speak. Every time you call your witness and show your hand in your cross-examination they are more ready for you the next time, if there is a next time, so very often the defence will keep their powder dry and agree to a committal on the papers and not ask for it. However, in cases where it is crying out for challenge I do not see why this House would want to remove that. <BR /> <BR />We had this debate in 2015 and this House, with the votes of Sinn Féin, the SDLP and the Ulster Unionists, if I remember correctly, preserved the right for oral hearings at committal, not on a blanket basis — we removed that — but in the interests of justice.”
“If the Member continues to listen I hope that I will be able to assist. <BR /> <BR />Why have we got a committal process? Think of it. I have tried to deal with that. We have a committal process as a sift. Let me remind the House that in the Continental system, for example, committal is done by the magistrate presiding, interrogating the witness and deciding whether or not they are believable and then they go to trial. We have a much more modest system here. It simply requires the statements to be sifted in 95% of the cases and for the magistrate to be satisfied that there is something here, that it is prima facie and needs to be tested by a jury, and so they are committed. <BR /> <BR />You have the very few cases where the defence say, "We would like to challenge the evidence at this stage".”
“And if they succeed, what happens? They save the public purse the cost of a trial. In 2014, when we last debated this, in that year 18 preliminary investigations/committals resulted in no committals. That meant that there did not have to be tens of thousands of pounds spent on 18 trials. That is only a drop in a very big ocean but it needs to be taken account of.”
“In a moment. You can discover that it is fabrication. You can discover that there were motives that produced the fabrication. That is why a defence counsel or solicitor would say, "We know that to be fabricated. We know the motive of that person. We know the frailties of that evidence. To save the need the need for a trial, we are therefore going to try to expose that at this point by asking for a mixed committal or a PI".”
“They come either through what is called a preliminary investigation (PI) or, more likely, through a mixed committal. That is to say, at its initiative, the defence can ask for all the evidence to be called. It would be very unlikely that you would do that. You do not really want to hear from the mapper or whomever. Or it can ask for key evidence to be called. Why would it do that? I can tell you. In my experience, I do not think that I have ever read a set of committal papers that would not leave you believing, "This probably is the truth", and yet, when you get a witness in the box, you can discover that it is anything but the truth.”
“This Bill wants ultimately to create the circumstances in which the state can do the greatest possible injury to citizens, namely to deprive them of their liberty. This House wants to create a situation in which someone can be put on trial for whatever it is, without those papers ever passing through any judicial sift or ever being sworn to be the truth. It is just enough that it says it there in black and white. I do not think that that is wise. I do not think that it is sound. I do not think that it is in the interests generally of society. <BR /> <BR />I have to say that the process does not cause delay in the criminal justice system. The regular committal, which is over 95% of all committals, is a paper exercise that does not cause the delay that is pretended in this House today. What of the other 4·5%?”
“What this House is therefore being invited to do is to say that it is OK with us to put people on trial, for perhaps the most serious of crimes or the least of crimes, in the Crown Court, without the evidence against them ever being sifted or tested or sworn. That is the effect of abolishing committal proceedings, because most committal proceedings involve the production of what is called a bundle of preliminary enquiry (PE) papers, which the magistrate reads. Based on those papers, he decides whether there is a prima facie case. He is applying a judicial process before someone is sent for trial. <BR /> <BR />This Bill wants to remove that. This Bill wants ultimately to remove that from every single crime that ever goes to the Crown Court.”
“<BR /> <BR />What are we looking at therefore at committal stage? What we are looking at in 95% of committal cases is the papers in the case. How do the papers evolve? Are they sworn statements? No. Are they statements that have been sifted and tested by any interrogation? No. Papers at committal are witness statements taken, almost invariably, by a police officer. They may reflect the actual words of the witness; they may not. They are the words framed by the police officer to convey what the witness is saying. <BR /> <BR />The statement is then signed by the witness. It is not sworn; it is signed.”
“That is a bulwark, but, as part of the hedging about of protections for citizens over the centuries and decades, we have established a committal process to ensure that, before a case goes for trial, there is at least a prima facie case against the accused. That is the difference. <BR /> <BR />In committal, the test is not whether there is proof beyond all reasonable doubt. The test is whether there is prima facie evidence that the person who is charged committed the offences with which he is charged. Only if there is prima facie evidence is that person committed for trial. <BR /> <BR />Anyone can see the vast difference in the scale of what is required. What is required at committal stage is very modest. It is to show only a prima facie case. It is quite different from what is required for conviction.”
“The removal of a citizen's liberty through incarceration is the most severe step that the state can take against any citizen. Therefore, over centuries, we have built up a hedge of protections against injustice resulting from that situation so that we are sure that before the state dares to remove the liberty of any citizen, be he the most odious terrorist charged with the most odious terrorist crimes, be he charged with the most sickening of sex abuse crimes or be he charged with theft or robbery or anything else, that it is sure that it has a process that is foolproof, as far as it can be. <BR /> <BR />We built up a number of matters to hedge that about. The ultimate one is that no one can be convicted of any crime without proof beyond all reasonable doubt. I trust that none of us would want to tinker with that or change that.”
“Unaccustomed as I am to pouring oil on troubled waters, may I divert the subject somewhat? Back in 2016, there was a nationwide simulation done to prepare for a pandemic. What lessons did the Minister's Department learn and action from that, or was nothing done about it?”
“Deputy First Minister, I think that invites the question: with people still outraged by your behaviour in attending the Storey funeral, how carefully did you think about that? Do you not think that you could claw back some credibility for yourself, in making these exhortations to others, if you were to belatedly apologise not for the undermining of the public message but for your actions in causing the undermining of the public message?”
“Mr Speaker, the six pages of this statement would not go far to paper over the gaping chasms in the Executive's approach. The statement contains some great words, if only they were not so empty falling from the lips of the deputy First Minister. There are words like:”
“Was last week's omnishambles not confirmation that, if a mandatory coalition cannot work even on what should be a unifying issue of public health, it will never work and it is a cruel deception on the people of Northern Ireland, who deserve better, to pretend that it will?”
“First Minister, today the Health Minister publicly said that he could unilaterally bring in restrictions. Do you agree that he could? What would be the consequences?”
“I understand entirely the sentiment that the Member expresses. The debate has not lasted for long, but, already, every Member who has spoken has fallen in to the trap of talking not about "alleged victims" but about "victims", before you get anywhere near conviction. At the stage of committal and until a jury says, "Guilty", there is nothing but an alleged victim. We should not allow that to cloud our judgement in the manner in which it seems to be doing.”
“I am sure that the Minister is aware that the figures that she supplied in answer to an Assembly question indicate that, in the last three years for which figures are available, 95·5% of all cases went on committal without the calling of evidence, without a preliminary investigation (PI) and without any delay in that respect. Why does she tell us that this causes excessive delays and that the defence are testing the prosecution case? Perish the thought. Why does she tell us that it costs money, when, if, at preliminary investigation, a matter does not proceed to trial, it saves the cost of what would have been the resulting trial?”
“Minister, correct if I am wrong, but is it the case that the Loughs Agency has been without a chair for over two and a half years and without a chief executive for over three and a half years? I see no reference to any of that in the statement. More than that, is there a problem in the agency with absentee board members? I refer to the fact that the minutes of the Loughs Agency suggest that Mr Ian McCrea, formerly of this parish, who receives something like £6,000 a year to be a member of the Loughs Agency board, has not bothered to attend a board meeting since October 2018. What action is being taken to deal with absentee board members?”