The Criminal Justice (Northern Ireland) Order 2008

Document Number:2008 No. 1216 (N.I. 1)
 
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Statutory Instruments

NORTHERN IRELAND

Made

7 th May 2008

Coming into operation in accordance with Article 1(2) to (4)

At the Court at Buckingham Palace, the 7 th day of May 2008

Present,

The Queen’s Most Excellent Majesty in Council

Whereas—

(a) the Secretary of State, in accordance with subsection (4)(a) of section 85 of the Northern Ireland Act 1998 (c. 47) , laid before Parliament a document which contained a draft of this proposed Order;

(b) the Secretary of State referred the document to the Northern Ireland Assembly for its consideration;

(c) the period referred to in subsection (4)(c) of that section has ended; and

(d) a draft of this Order has been approved by resolution of each House of Parliament:

Now, therefore, Her Majesty, in exercise of the powers conferred by section 85 of the Northern Ireland Act 1998 (c. 47) and of all other powers enabling Her in that behalf, is pleased, by and with the advice of Her Privy Council, to order, and it is hereby ordered, as follows:–

PART 1 INTRODUCTORY

Title and commencement

  1. —(1) This Order may be cited as the Criminal Justice (Northern Ireland) Order 2008.

    (2) The following provisions come into operation one week after the day on which this Order is made—

    (a) this Part; and

    (b) Articles 100 and 101.

    (3) The following provisions come into operation one month after the day on which this Order is made—

    (a) Articles 84 to 86 , 88 , 89 and 93 to 99; and

    (b) Part 2 of Schedule 6 , and Article 102(2) so far as relating thereto.

    (4) The other provisions of this Order come into operation on such day or days as the Secretary of State may by order appoint.

    (5) Any provision of Part 4 or 5 which alters any penalty for an offence has effect only in relation to offences committed after the coming into operation of that provision.

    General interpretation

  2. The Interpretation Act (Northern Ireland) 1954 (c. 33) applies to this Order as it applies to an Act of the Assembly.

    PART 2 SENTENCING

    CHAPTER 1 INTERPRETATION

    Interpretation of this Part

  3. —(1) In this Part—

    “community sentence” has the meaning given by Article 2(2) of the Criminal Justice (Northern Ireland) Order 1996 (NI 24);

    “curfew requirement” has the meaning given by Article 37(1);

    “electronic monitoring requirement” has the meaning given by Article 40(1);

    “extended custodial sentence” has the meaning given by Article 14;

    HSS Board” means a Health and Social Services Board established under Article 16 of the Health and Personal Social Services (Northern Ireland) Order 1972 (NI 14);

    “HSS trust” means a Health and Social Services trust established under Article 10(1) of the Health and Personal Social Services (Northern Ireland) Order 1991 (NI 1);

    “indeterminate custodial sentence” has the meaning given by Article 13(4);

    “the Parole Commissioners” means the Parole Commissioners for Northern Ireland;

    “prison rules” means rules made under section 13 of the Prison Act (Northern Ireland) 1953 (c. 18);

    “probation order” means an order under Article 10 of the Criminal Justice (Northern Ireland) Order 1996 (NI 24);

    “sentence” does not include a committal for default, or the fixing of a term to be served in the event of default, or attachment for contempt of court; and for the purposes of this definition “default” means a failure to pay, or want of sufficient distress to satisfy, any fine or other sum of money or failure to do or abstain from doing anything required to be done or left undone;

    “serious harm” means death or serious personal injury, whether physical or psychological;

    “youth conference order” means an order under Article 36 J of the Criminal Justice (Children) (Northern Ireland) Order 1998 (NI 9);

    “young offenders centre” has the meaning given by section 2(a) of the Treatment of Offenders Act (Northern Ireland) 1968 (c. 29).

    (2) For the purposes of this Part, an offence is associated with another if—

    (a) the offender is convicted of both offences in the same proceedings, or is sentenced for both offences at the same time; or

    (b) the offender admits the commission of it in the sentencing proceedings for the other offence and requests the court to take it into consideration in the sentence for that offence.

    (3) For the purposes of this Part, where an offence is found to have been committed over a period of 2 or more days, or at some time during a period of 2 or more days, it shall be taken to have been committed on the last of those days

    (4) Where the age of any person at any time is material for the purposes of any provision of this Part, his age at the material time shall be deemed to be or to have been that which appears to the court after considering any available evidence to be or to have been his age at that time.

    CHAPTER 2 CUSTODIAL SENTENCES

    Interpretation of this Chapter

  4. —(1) In this Chapter—

    “custodial sentence” means—

    a sentence of imprisonment;

    a sentence of detention in a young offenders centre;

    a sentence of detention under Article 13(4)(b) or 14(5);

    a sentence of detention under Article 45(1) or (2) of the Criminal Justice (Children) (Northern Ireland) Order 1998 (NI 9);

    an order under Article 39 of that Order sending the offender to a juvenile justice centre;

    an order under Article 44 A of that Order sending the offender to secure accommodation;

    “pre-sentence report” means a report in writing which—

    with a view to assisting the court in determining the most suitable method of dealing with an offender, is made or submitted by a probation officer or a social worker of an HSS Board or authorised HSS trust; and

    contains information as to such matters, presented in such manner, as may be prescribed by rules made by the Secretary of State;

    and for the purposes of this definition an “authorised HSS trust” is an HSS trust by which functions relating to such reports are exercisable by virtue of an authorisation for the time being in operation under Article 3(1) of the Health and Personal Social Services (Northern Ireland) Order 1994 (NI 2).

    (2) For the purposes of this Chapter—

    (a) a sentence falls to be imposed under Article 13 if, because the court is of the opinion mentioned in paragraph (1)(b) of that Article and considers that the case falls within paragraph (2) or (3) of that Article, the court is obliged to pass a sentence complying with that Article;

    (b) a sentence falls to be imposed under Article 14 if, because the court is of the opinion mentioned in paragraph (1)(b)(i) and (ii) of that Article, the court is obliged to pass a sentence complying with that Article;

    (c) a sentence falls to be imposed under paragraph (2) of Article 70 of the Firearms (Northern Ireland) Order 2004 (NI 3) if it is required by that paragraph and the court is not of the opinion there mentioned; an

    (d) a sentence falls to be imposed under paragraph 2(4) or (5) of Schedule 2 to the Violent Crime Reduction Act 2006 (c. 38) if it is required by that provision and the court is not of the opinion there mentioned.

    Restrictions on imposing certain custodial sentences

  5. —(1) This Article applies where a person is convicted of an offence punishable with a custodial sentence other than one—

    (a) fixed by law; or

    (b) falling to be imposed under—

    (i) Article 13 or 14;

    (ii) Article 70(2) of the Firearms (Northern Ireland) Order 2004 (NI 3); or

    (iii) paragraph 2(4) or (5) of Schedule 2 to the Violent Crime Reduction Act 2006 (c. 38).

    (2) The court shall not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that only a custodial sentence can be justified for the offence.

    (3) Nothing in paragraph (2) shall prevent the court from passing a custodial sentence if the offender fails to express a willingness to comply with—

    (a) a requirement which is proposed by the court to be included in a community sentence and which requires an expression of such willingness; or

    (b) a requirement which is proposed by the court to be included in—

    (i) an order under Article 8(5) of the Criminal Justice (Northern Ireland) Order 1998 (NI 20); or

    (ii) a youth conference order.

    (4) Where a court passes a custodial sentence, it shall—

    (a) in a case not falling within paragraph (3) , state in open court that it is of the opinion referred to in paragraph (2) and why it is of that opinion; and

    (b) in any case, explain to the offender in open court and in ordinary language why it is passing a custodial sentence.

    (5) A magistrates' court shall cause a reason stated by it under paragraph (4) to be specified in the warrant of commitment and to be entered in the Order Book required to be kept under rule 19 of the Magistrates' Courts Rules (Northern Ireland) 1984 (No. 225).

    Restrictions on imposing custodial sentences on persons not legally represented

  6. —(1) A magistrates' court on summary conviction or the Crown Court on conviction on indictment shall not pass a custodial sentence on a person if that person is not legally represented in that court.

    (2) Paragraph (1) does not apply to a person if

    (a) a custodial sentence has previously been passed on that person or a corresponding sentence has previously been passed on that person by a court in any other part of the United Kingdom;

    (b) that person applied for legal aid and the application was refused on the ground that it did not appear the person’s means were such that the person required assistance; or

    (c) having been informed of the right to apply for legal aid and had the opportunity to do so, that person refused or failed to apply.

    (3) In paragraph (2) “legal aid” means legal aid for the purposes of proceedings in the court, whether the whole proceedings or the proceedings on or in relation to sentence.

    (4) In the case of a person committed to the Crown Court for trial, it is immaterial whether that person applied for legal aid in the Crown Court to, or was informed of the right to apply by, that Court, or the court which committed that person.

    (5) For the purposes of this...

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