The Criminal Justice (Northern Ireland) Order 1994

The Criminal Justice (Northern Ireland) Order 1994 This Order may be cited as the Criminal Justice (Northern Ireland) Order 1994. This Order shall come into operation on such day or days as the Secretary of State may by order appoint. The Interpretation Act (Northern Ireland) 1954 shall apply to Article 1 and the following provisions of this Order as it applies to a Measure of the Northern Ireland Assembly. In this Order— “fine” includes a pecuniary penalty but does not include a pecuniary forfeiture or pecuniary compensation; “relevant provision” means a provision contained in— an Act of the Parliament of the United Kingdom; an Act of the Parliament of Ireland; an Act of the Parliament of Northern Ireland; an Order in Council under section 1(3) of the Northern Ireland (Temporary Provisions) Act 1972; an Order in Council under Schedule 1 to the Northern Ireland Act 1974; “statutory provision” has the meaning assigned to it by section 1(f) of the Interpretation Act (Northern Ireland) 1954. Para. (3) rep. by 1999 c.23 In Article 4(8) of the Fines and Penalties (Northern Ireland) Order 1984 (maximum fine on summary conviction of an offence punishable on conviction on indictment or on summary conviction), in the definition of “prescribed sum” for “£2,000” there shall be substituted “£5,000”. For Article 5(2) of the Fines and Penalties (Northern Ireland) Order 1984 (standard scale of fines) there shall be substituted— The standard scale is shown below— Para. (3) rep. by 1998 NI 9 In the Magistrates' Courts (Northern Ireland) Order 1981 in Article 54(1)(b)(i) (fine in lieu of imprisonment), for “£400” there shall be substituted “level 3 on the standard scale”; in Article 119(1) (penalty for failure to appear or failure to comply), for “£50” there shall be substituted “level 4 on the standard scale”. In the statutory provisions specified in column 1 of Schedule I (the general description of which is given in column 2 of that Schedule), for the amount specified in column 3 of that Schedule there shall be substituted the amount specified in column 4 of that Schedule. In section 35 of the Criminal Justice Act (Northern Ireland) 1945 (powers of Crown Court or county courts in relation to fines and forfeited recognizances) for subsection (2) there shall be substituted— The periods set out in the second column of the following Table shall be the maximum periods of imprisonment or detention which may be fixed under subsection (1)(c) applicable respectively to the amounts set out opposite thereto— For the Table in paragraph 1 of Schedule 3 to the Magistrates' Courts (Northern Ireland) Order 1981 (maximum periods of imprisonment for default in paying sums adjudged to be paid by a conviction), there shall be substituted the following Table— After section 35(4) of the Criminal Justice Act (Northern Ireland) 1945 (powers of Crown Court or county courts in relation to fines and forfeited recognizances) there shall be inserted— Where— the Crown Court has imposed a fine on a company; and the court has issued a warrant of distress under section 3 of the Fines Act (Ireland) 1851 for the purpose of levying the amount of the fine; and it appears on the return to the warrant that the money and goods of the company are insufficient to satisfy the amount of the fine with the costs and charges of levying the same, the chief clerk may make an application in relation to the company under Article 22 or 104 of the Insolvency (Northern Ireland) Order 1989 (administration or winding up). After Article 92 of the Magistrates' Courts (Northern Ireland) Order 1981 there shall be inserted— a magistrates' court has, or is treated by any statutory provision as having, adjudged a company by a conviction to pay a sum; and the court has issued a warrant of distress under Article 92(1)(a) for the purpose of levying the sum; and it appears on the return to the warrant that the money and goods of the company are insufficient to satisfy the sum with the costs and charges of levying the same, the clerk of petty sessions may make an application in relation to the company under Article 22 or 104 of the Insolvency (Northern Ireland) Order 1989 (administration or winding up). For any offence punishable on conviction on indictment or on summary conviction being an offence created by an instrument made before the coming into operation of this Article under any relevant provision, the maximum fine which may be imposed on summary conviction shall by virtue of this paragraph be the statutory maximum unless the offence is one for which by virtue of the instrument a larger maximum fine may be imposed on summary conviction. Where apart from this Article the maximum fine would be one amount in the case of a first conviction and a different amount in the case of a second or subsequent conviction, paragraph (1) shall apply irrespective of whether the conviction is a first, second or subsequent one. Paragraph (1) shall not affect so much of any instrument as (in whatever words) makes a person liable on summary conviction to a fine of a specified amount or to a fine not exceeding a specified amount for each period of a specified length during which a continuing offence is continued. Where there is under any relevant provision (however framed or worded) passed or made before the coming into operation of this Article a power by instrument to impose penal provisions, being a power which allows the creation of offences punishable on conviction on indictment or on summary conviction, the maximum fine which may in the exercise of that power be authorised on summary conviction in respect of such an offence shall by virtue of this paragraph be the statutory maximum unless some larger maximum fine can be authorised on summary conviction of such an offence by virtue of a relevant provision passed or made before the coming into operation of this Article. Where there is under any relevant provision (however framed or worded) passed or made before the coming into operation of this Article a power by instrument to create offences punishable on conviction on indictment or on summary conviction, the maximum fine for such an offence so created may be expressed as a fine not exceeding the statutory maximum. Paragraph (5) has effect in relation to exercises of powers before as well as after the coming into operation of this Article. An Order in Council under— section 1(3) of the Northern Ireland (Temporary Provisions) Act 1972; or Schedule 1 to the Northern Ireland Act 1974 (including this Order); is not an instrument for the purposes of this Article. Where under an instrument to which this paragraph applies the maximum fine on conviction of an offence punishable on summary conviction only specified in the instrument is an amount shown in the second column of the standard scale the reference in the instrument to the amount of the maximum fine shall be construed as a reference to the level in the first column of the standard scale corresponding to that amount. Paragraph (1) applies to any instrument, not being an Order in Council under Schedule 1 to the Northern Ireland Act 1974, made after 31st August 1984 and before the coming into operation of this Article under any relevant provision. Paragraph (1) shall not affect so much of any instrument as (in whatever words) makes a person liable on summary conviction to a fine not exceeding a specified amount for each period of a specified length during which a continuing offence is continued. Where there is— subject to paragraph (6), under any relevant provision (however framed or worded) passed or made before the coming into operation of this Article, under any instrument (however framed or worded) made under such a relevant provision, a power by instrument to provide that a person, as regards any offence punishable on summary conviction only (whether or not created by the instrument), shall be liable on conviction to a fine, a person may be so made liable to a fine not exceeding a specified level on the standard scale. Paragraph (4) has effect in relation to exercises of powers before as well as after the coming into operation of this Article. Schedule 1 to the Northern Ireland Act 1974; shall not be an instrument for the purposes of paragraph (4)(a). Where in any instrument made— under any relevant provision; or under an instrument made under any relevant provision, a harbour authority may provide that a person, as regards any offence punishable on summary conviction only (whether or not created by the instrument), shall be liable on conviction to a fine not exceeding an amount less than level 4 on the standard scale, the power shall extend by virtue of this Article to making him liable to a fine not exceeding level 4. Where any relevant provision or instrument made under any relevant provision ( “the enabling legislation”) (however expressed) provides that a person who contravenes any provision of an instrument ( “a regulatory instrument”) made by a harbour authority— under the enabling legislation; or under an instrument made under the enabling legislation, shall be guilty of an offence and shall be liable on summary conviction to a fine not exceeding an amount less than level 4 on the standard scale, the power conferred by the enabling legislation shall by virtue of this Article enable the harbour authority to provide in a regulatory instrument that a person, as regards any such offence created by the regulatory instrument, shall be liable on summary conviction to a fine not exceeding level 4. In this Article “harbour authority” has the same meaning as in section 38(1) of the Harbours Act (Northern Ireland) 1970. For paragraphs (4) and (5) of Article 17 of the Fines and Penalties (Northern Ireland) Order 1984 there shall be substituted— The Secretary of State may by order amend a statutory provision specifying a sum to which this paragraph applies so as to substitute for that sum such other sum as appears to him— to be justified by a change in the value of money appearing to him to have taken place since the last occasion on which the sum in question was fixed; or to be appropriate to take account of an order which has been made or is proposed to be made altering the statutory maximum or, as the case may be, the standard scale. Paragraph (4) applies to— any sum which is specified as— the maximum fine which may be imposed on summary conviction in respect of an offence punishable on indictment or on summary conviction; and is higher than the statutory maximum; the maximum fine which may be imposed on conviction of an offence punishable on summary conviction only; and is higher than level 5 on the standard scale. In section 41 of the Foyle Fisheries Act (Northern Ireland) 1952 (penalty for pollution)— in subsection (1) for the words from “on summary conviction” onwards there shall be substituted— on summary conviction, to a fine not exceeding the statutory maximum; on conviction on indictment, to a fine or to imprisonment for a term not exceeding 2 years or to both. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . In section 47 of the Fisheries Act (Northern Ireland) 1966 (penalty for pollution)— after subsection (1) there shall be inserted— If in the case of a continuing offence under subsection (1), the offender continues to contravene that subsection, he shall be guilty of a further offence and shall be liable on summary conviction to an additional fine not exceeding one-twentieth of level 5 on the standard scale for each day on which the offence is continued. In Article 3(4) of the Criminal Law (Amendment) (Northern Ireland) Order 1977 (penalties for bomb hoaxes)— in sub-paragraph (a) for the words from “three months” onwards there shall be substituted “6 months or to a fine not exceeding the statutory maximum or to both”; in sub-paragraph (b) for “five years” there shall be substituted “7 years or to a fine or to both”. Subject to the following provisions of this Article, where a person is convicted of an offence and— the court by or before which he is convicted is satisfied that any property which has been lawfully seized from him or which was in his possession or under his control at the time when he was apprehended for the offence or when a summons in respect of it was issued— has been used for the purpose of committing, or facilitating the commission of, any offence; or was intended by him to be used for that purpose; or the offence, or an offence which the court has taken into consideration in determining his sentence, consists of unlawful possession of property which— has been lawfully seized from him; or was in his possession or under his control at the time when he was apprehended for the offence of which he has been convicted or when a summons in respect of that offence was issued, the court may make an order under this Article in respect of that property, and may do so whether or not it also deals with the offender in respect of the offence in any other way and without regard to any restrictions on forfeiture in a relevant provision. In considering whether to make such an order in respect of any property a court shall have regard— to the value of the property; and to the likely financial and other effects on the offender of the making of the order (taken together with any other order that the court contemplates making). Where a person commits an offence to which this paragraph applies by— driving, attempting to drive or being in charge of a vehicle, or failing to comply with a requirement made under Article 18 of the Road Traffic (Northern Ireland) Order 1995 (failure to provide specimen for analysis or laboratory test) in the course of an investigation into whether the offender had committed an offence while driving, attempting to drive or being in charge of a vehicle, or failing, as the driver of a vehicle, to comply with Article 175(1) of that Order (duty to stop and give information or report accident), the vehicle shall be regarded for the purposes of paragraph (1)(a) (and paragraph (7)(b)) as used for the purpose of committing the offence (and for the purpose of committing any offence of aiding, abetting, counselling or procuring the commission of the offence). Paragraph (3) applies to— an offence under the Road Traffic (Northern Ireland) Orders 1981 and 1995 which is punishable with imprisonment, an offence of manslaughter, and an offence under section 35 of the Offences against the Person Act 1861 (wanton and furious driving). Facilitating the commission of an offence shall be taken for the purposes of this Article to include the taking of any steps after it has been committed for the purpose of disposing of any property to which it relates or of avoiding apprehension or detection, and references in this Article to an offence punishable with imprisonment shall be construed without regard to any prohibition or restriction imposed by or under any statutory provision on the imprisonment of young offenders. An order under this Article shall operate to deprive the offender of his rights, if any, in the property to which it relates, and the property shall (if not already in their possession) be taken into the possession of the police. Paras. (7)‐(8B) rep. by 1998 c. 32 In this Article “relevant provision” means a provision contained in an Act or Order mentioned in the definition of “relevant provision” in Article 2(2) being such an Act or Order passed or made before this Order is made. Where a court makes an order under Article 11 in a case where— the offender has been convicted of an offence which has resulted in a person suffering personal injury, loss or damage; or any such offence is taken into consideration by the court in determining sentence, the court may also make an order that any proceeds which arise from the disposal of the property and which do not exceed a sum specified by the court shall be paid to that person. The court may only make an order under this Article if it is satisfied that but for the inadequacy of the means of the offender it would have made a compensation order under which the offender would have been required to pay compensation of an amount not less than the specified amount. An order under this Article has no effect— before the end of the period of 6 months beginning on the date on which the order under Article 11 was made;or if a successful application under section 31(1) of the Police (Northern Ireland) Act 1998 has been made. In section 27(1) of the Misuse of Drugs Act 1971 (forfeiture on conviction of an offence under that Act) after the words “1987 relates” there shall be inserted the words “or a drug trafficking offence, as defined in Article 2(2) of the Criminal Justice (Confiscation) (Northern Ireland) Order 1990”. Subject to the provisions of this Article, a court by or before which a person is convicted of an offence, instead of or in addition to dealing with him in any other way, may, on application or otherwise, make an order (in this Article and Articles 15 to 17 referred to as “a compensation order”) requiring him to pay compensation for any personal injury, loss or damage resulting from that offence or any other offence which is taken into consideration by the court in determining sentence or to make payments for funeral expenses or bereavement in respect of a death resulting from any such offence, other than a death due to an accident arising out of the presence of a motor vehicle on a road; and a court shall give reasons, on passing sentence, if it does not make such an order in a case where this Article empowers it to do so. Compensation under paragraph (1) shall be of such amount as the court considers appropriate, having regard to any evidence and to any representations that are made by or on behalf of the offender or the prosecution. In the case of an offence under the Theft Act (Northern Ireland) 1969 [or Article 172, 172A or 172B of the Road Traffic (Northern Ireland) Order 1981], where the property in question is recovered, any damage to the property occurring while it was out of the owner's possession shall be treated for the purposes of paragraph (1) as having resulted from the offence, however and by whomsoever the damage was caused. A compensation order may only be made in respect of injury, loss or damage (other than loss suffered by a person's dependants in consequence of his death) which was due to an accident arising out of the presence of a motor vehicle on a road, if— it is in respect of damage which is treated by paragraph (3) as resulting from an offence under the Theft Act (Northern Ireland) 1969 [or Article 172, 172A or 172B of the Road Traffic (Northern Ireland) Order 1981]; or it is in respect of injury, loss or damage as respects which— the offender is uninsured in relation to the use of the vehicle; and compensation is not payable under any arrangements to which the Department of the Environment is a party; and, where a compensation order is made in respect of injury, loss or damage due to such an accident, the amount to be paid may include an amount representing the whole or part of any loss of or reduction in preferential rates of insurance attributable to the accident. A vehicle the use of which is exempted from insurance by Article 90(2) or (3) of the Road Traffic (Northern Ireland) Order 1981 is not uninsured for the purposes of paragraph (4). A compensation order in respect of funeral expenses may be made for the benefit of anyone who incurred the expenses. A compensation order in respect of bereavement may only be made for the benefit of a person for whose benefit a claim for damages for bereavement could be made under Article 3A of the Fatal Accidents (Northern Ireland) Order 1977. The amount of compensation in respect of bereavement shall not exceed the amount for the time being specified in Article 3A(3) of the Fatal Accidents (Northern Ireland) Order 1977. In determining whether to make a compensation order against any person, and in determining the amount to be paid by any person under such an order, the court shall— have regard to his means so far as they appear or are known to the court; and in a case where it is proposed to make against him both a compensation order and a confiscation order under the Proceeds of Crime (Northern Ireland) Order 1996, also have regard to its duty under Article 12(8) of that Order (duty where the court considers that the offender's means are insufficient to satisfy both orders in full to order the payment out of sums recovered under the confiscation order of sums due under the compensation order). For the purposes of any order under Article 35 of the Criminal Justice (Children) (Northern Ireland) Order 1998 against the parent or guardian of a child— paragraphs (9)(a) and (10)(b) shall have effect (so far as applicable) as if any reference to the means of the person against whom the compensation order is made were a reference to the means of the parent or guardian; but for the purposes of any such order made against an authority (within the meaning of that Order) paragraphs (9) and (10) shall not apply. Where the court considers— that it would be appropriate both to impose a fine and to make a compensation order; but that the offender has insufficient means to pay both an appropriate fine and appropriate compensation, the court shall give preference to compensation (though it may impose a fine as well). The compensation to be paid under a compensation order made by a magistrates' court in respect of any offence of which the court has convicted the offender shall not exceed £5,000 or, if the offender is under the age of 18, £1,000; and the compensation or total compensation to be paid under a compensation order or compensation orders made by a magistrates' court in respect of any offence or offences taken into consideration in determining sentence shall not exceed the difference (if any) between the amount or total amount which under this paragraph is the maximum for the offence or offences of which the offender has been convicted and the amount or total amounts (if any) which are in fact ordered to be paid in respect of that offence or those offences. A compensation order shall be enforceable— if made by a magistrates' court, in the same manner as any other sum adjudged to be paid by a conviction of that court; if made by any other court, in the same manner as any fine which has been or might have been imposed, in respect of the offence for which the person has been convicted, by the court making the order. A person in whose favour a compensation order is made shall not be entitled to receive the amount due to him until (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of an appeal on which the order could be varied or set aside. Rules of court, Crown Court rules, county court rules and magistrates' court rules may make provision regarding the way in which a court is to deal with money paid in satisfaction of a compensation order where the entitlement of the person in whose favour it was made is suspended. Where a compensation order has been made against any person in respect of an offence taken into consideration in determining his sentence— the order shall cease to have effect if he successfully appeals against his conviction of the offence or, if more than one, all the offences, of which he was convicted in the proceedings in which the order was made; he may appeal against the order as if it were part of the sentence imposed in respect of the offence or, if more than one, any of the offences, of which he was so convicted. Without prejudice to section 49(2) of the Judicature (Northern Ireland) Act 1978 and Article 91 of the Magistrates' Courts (Northern Ireland) Order 1981, at any time before the person against whom a compensation order has been made has paid into court the whole of the compensation which the order requires him to pay, but at a time when (disregarding any power of a court to grant leave to appeal out of time) there is no further possibility of an appeal on which the order could be varied or set aside, the court for the time being having functions in relation to the enforcement of the order may, on the application of the person against whom it was made, discharge the order, or reduce the amount which remains to be paid, if it appears to the court— that the means of the person against whom the order was made are insufficient to satisfy in full both the order and either or both of the following made against him in the same proceedings— a confiscation order under Part 4 of the Proceeds of Crime Act 2002; a slavery and trafficking reparation order under Schedule 2 to the Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015; or that the person against whom the order was made has suffered a substantial reduction in his means which was unexpected at the time when the compensation order was made, and that his means seem unlikely to increase for a considerable period. This Article shall have effect where a compensation order or a service compensation order or award has been made in favour of any person in respect of any injury, loss or damage and a claim by him in civil proceedings for damages in respect of the injury, loss or damage subsequently falls to be determined. The damages in the civil proceedings shall be assessed without regard to the order or award; but the plaintiff may only recover an amount equal to the aggregate of the following— any amount by which they exceed the compensation; and a sum equal to any portion of the compensation which he fails to recover, and may not enforce the judgment, so far as it relates to a sum such as is mentioned in sub-paragraph (b), without the leave of the court. In this Article a “service compensation order or award” means— an order requiring the payment of compensation under paragraph 11 of Schedule 5A to the Army Act 1955, of Schedule 5A to the Air Force Act 1955 or of Schedule 4A to the Naval Discipline Act 1957; or an award of stoppages payable by way of compensation under any of those Acts. The Sexual Offences (Northern Ireland) Order 1978 shall be amended as follows. Para. (2) rep. by 2003 NI 13 Article 8 (anonymity of defendants in rape, etc., cases) shall cease to have effect. Arts. 19 - 24 rep. by 1999 c.23 Nothing in any provision of Articles 3 and 6 to 17 shall affect the punishment for an offence committed before that provision comes into operation. Article 26—Amendments and repeals Schedule 2—Amendments Schedule 3—Repeals fully exercised SR 1994/446 1954 c. 33 (NI) 1972 c. 22 1984 NI 3 1981 NI 26 1945 c. 15 (NI) 1974 c. 28 1970 c. 1 (NI) 1952 c. 5 (NI) Art. 10(1)(b) repealed (1.6.2008) by Foyle and Carlingford Fisheries (Northern Ireland) Order 2007 (S.I. 2007/915 (N.I. 9)), arts. 1(3), 34(2), Sch. 3 (with art. 32); S.R. 2008/232, art. 2, Sch. 1966 c. 17 (NI) Art. 11 excluded (8.2.2007) by Wireless Telegraphy Act 2006 (c. 36), ss. 103, 126(2), Sch. 5 para. 7(c) Art. 11 excluded by Waste and Contaminated Land (Northern Ireland) Order 1997 (S.I. 1997/2778 (N.I. 19)), art. 5D(9) (as inserted (25.6.2007) by Waste (Amendment) (Northern Ireland) Order 2007 (S.I. 2007/611 (N.I. 3)), arts. 1(3), 8(1) (with art. 8(2)); S.R. 2007/294, art. 2, Sch.) 1995 NI 18 1861 c. 100 1998 c. 32 1971 c. 38 Art. 14(1) modified by Waste and Contaminated Land (Northern Ireland) Order 1997 (S.I. 1997/2778 (N.I. 19)), art. 5C(2) (as inserted (25.6.2007) by Waste (Amendment) (Northern Ireland) Order 2007 (S.I. 2007/611 (N.I. 3)), arts. 1(3), 7(1) (with art. 7(2)); S.R. 2007/294, art. 2, Sch.) 1969 c. 16 (NI) By Fraud Act 2006 (c. 35), ss. 14(1), 15(1), Sch. 1 para. 26, it is provided that in art. 14(3) for "or Article 172 of the Road Traffic (Northern Ireland) Order 1981" there shall be substituted ", Article 172 of the Road Traffic (Northern Ireland) Order 1981 or the Fraud Act 2006" (the said substitution being in force 15.1.2007 by S.I. 2006/3200, art. 2) 2004 NI 15 1981 NI 1 By Fraud Act 2006 (c. 35), ss. 14(1), 15(1), Sch. 1 para. 26, it is provided that in art. 14(4)(a) for "or Article 172 of the Road Traffic (Northern Ireland) Order 1981" there shall be substituted ", Article 172 of the Road Traffic (Northern Ireland) Order 1981 or the Fraud Act 2006" (the said substitution being in force 15.1.2007 by S.I. 2006/3200, art. 2) 1977 NI 18 1996 NI 9 1998 NI 9 Art. 14(11) modified by Waste and Contaminated Land (Northern Ireland) Order 1997 (S.I. 1997/2778 (N.I. 19)), art. 5C(3) (with art. 5C(4)) (as inserted (25.6.2007) by Waste (Amendment) (Northern Ireland) Order 2007 (S.I. 2007/611 (N.I. 3)), arts. 1(3), 7(1) (with art. 7(2)); S.R. 2007/294, art. 2, Sch.) 2002 c. 26 1978 c. 23 1955 c. 18 1955 c. 19 1957 c. 53 1978 NI 5 Arts. 15-17 applied (with modifications) (14.1.2015) by Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (c. 2), s. 28(2), Sch. 2 para. 3(3) Words in art. 16(a) substituted (14.1.2015) by Human Trafficking and Exploitation (Criminal Justice and Support for Victims) Act (Northern Ireland) 2015 (c. 2), s. 28(2), Sch. 4 para. 9