Abolition of preliminary investigations and mixed committals in the magistrates’ court

New arrangements effective from 17 October 2022

Introduction

Committal proceedings for serious criminal cases in Northern Ireland is changing.

A committal hearing is a hearing in the magistrates’ court to decide whether the evidence is sufficient to put the accused on trial by jury for any indictable offence.

Currently, committal proceedings are conducted in 3 ways:

• In a preliminary inquiry (PE), written statements and evidence help the court decide if the case should proceed to the Crown Court.
• In a preliminary investigation (PI), all witnesses are called for oral evidence and cross-examination.
• A mixed committal (PE/PI) combines the methods of preliminary inquiry and preliminary investigation.

Under the current process, there is the potential for victims and witnesses having to give evidence at both the committal and again at trial.

In addition, preliminary investigations and mixed committals require additional resource, incur extra costs and cause delays.

But this is changing…

Benefits

• This reform is designed to help improve the experience for victims and witnesses.
• For those cases under the new arrangements, victims and witnesses will not be called to give evidence at the committal hearing.
• This change aims to reduce the stress faced by individuals by removing the requirement for giving evidence at the magistrates’ court.
• These changes simplify the committal process, reduce costs and delay which benefits victims and witnesses and the accused.

Legislation

The new legislative provisions mean that committal proceedings will only be by way of a preliminary inquiry and therefore victims and witnesses cannot be called to give oral evidence at the committal hearing.

The new arrangements are outlined in:

Sections 1 to 3 of, and the Schedule to, the Criminal Justice (Committal Reform) Act (Northern Ireland) 2022 (“the Act”)

• Section 1 abolishes preliminary investigations
• Section 2 abolishes mixed committals
• Section 3 and the Schedule contain amendments and repeals consequential on sections 1 and 2 above

Criminal Justice (Committal Reform) Act (Northern Ireland) 2022 (Commencement No. 1) Order (Northern Ireland) 2022

The Magistrates' Courts (Amendment) Rules (Northern Ireland) 2022

These provisions will commence on17 October 2022.

Victims and witnesses can still be called to give evidence at trial but not at a committal hearing.

Transition

The new arrangements apply to cases which have been instituted on/after 17 October 2022. In cases instituted before this date an accused will still have the right to call witnesses at committal until these cases are phased out.

By virtue of section 5 of the Act for the purpose of this change proceedings “instituted” is taken to be as described in paragraph 4 of Schedule 8 to the Justice Act (Northern Ireland) 2015.

In short, in cases where the accused is charged, or a complaint is made, or where an indictment is presented under the authority of section 2(2)(c), (d), (e) or (f) of the Grand Jury (Abolition) Act (Northern Ireland) 1969, on/ after 17 October 2022, the accused will be subject to the new provisions.

For an accused who has more than one of these dates in relation to their case, the earliest date will be used.

WATCH: A short video designed to provide information to individuals, who come into contact with the criminal justice system, about changes to traditional committal proceedings in Northern Ireland.

Frequently Asked Questions

Q1. When will the abolition of preliminary investigations and mixed committals provisions come into operation?

The abolition of preliminary investigations and mixed committals will come into operation on the 17 October 2022 for those cases where proceedings are instituted on/after go live.

Q2. What legislation governs the abolition of preliminary investigations and mixed committals?

Sections 1-3 of, and the Schedule to, the Criminal Justice (Committal Reform) Act (Northern Ireland) 2022[1] (“the 2022 Act”) govern the abolition of preliminary investigations and mixed committals:

• Section 1 - Abolition of preliminary investigations

Article 30 of the Magistrates’ Courts (Northern Ireland) Order 1981 (which enables a magistrates’ court to conduct a preliminary investigation of an indictable offence) is repealed; and accordingly all committal proceedings in a magistrates’ court shall be by way of preliminary inquiry under that Order.

• Section 2 - Abolition of mixed committals: evidence on oath not to be given at preliminary inquiry

Article 34(2) of the Magistrates’ Courts (Northern Ireland) Order 1981 (which enables witnesses to give evidence on oath at a preliminary inquiry) is repealed.

• Section 3 and the Schedule - Consequential amendments and repeals

The Schedule (which contains amendments and repeals consequential on sections 1 and 2) has effect.

• Criminal Justice (Committal Reform) Act (Northern Ireland) 2022 (Commencement No.1) Order (Northern Ireland) 2022
• The Magistrates’ Courts (Amendment) Rules (Northern Ireland) 2022

Q3. What is a Committal?

A committal is a preliminary hearing in the magistrates’ court to decide whether the evidence is sufficient to put the accused on trial by jury for any indictable offence.

Committal was originally used to collect and record evidence, rather than weigh up the strength of a case. However, as committal proceedings have developed, they have become a means for the defence to test the prosecution case.

Under the present system, the vast majority of committal hearings proceed as preliminary inquiries. Preliminary inquiries usually proceed on the basis of written statements of evidence and documents served by the prosecution. If witnesses attend to give oral evidence at the hearing, then it will sometimes be described as a “mixed committal”. Preliminary inquiries can also be contested on the papers by defence submissions. A preliminary investigation is another kind of committal hearing but is very rare. It is often referred to as a “PI”. In a preliminary investigation, all witnesses attend to give oral evidence and be cross-examined.

After considering the evidence, the court decides whether there is a prima facie case (a case to answer) against the accused. For there to be a prima facie case there must be sufficient evidence to put the accused on trial by jury for any indictable offence. The number of cases in which the accused is discharged (i.e. not committed for trial) is very small. This may come about, for example, if an essential witness refuses to give evidence.

Where the court is of the opinion that the evidence is sufficient to put the accused on trial by jury for any indictable offence, the court commits the accused for trial.

Q4. Why are these changes being introduced?

The experience of giving sometimes traumatic oral evidence, particularly under cross-examination, at both the committal hearing and then again at the Crown Court trial can have a significant impact on victims and witnesses.

Cross-examining victims and witnesses at committal may discourage individuals from participating in the subsequent trial where they face the prospect of being cross-examined once again.

Sir John Gillen in his report into the law and procedures in serious sexual offences in Northern Ireland noted, ‘Current committal proceedings (which I recommend in this Review should be discontinued) are often listed as a mixed committal, which then turns into a conventional preliminary enquiry hearing on the morning of the matter, after the complainant has suffered the stress and worry of a court appearance, only to be told that they are not required. This is quite unnecessary and that practice should be strongly deprecated, given the additional stress and delay this process is causing.’[2]

Preliminary investigations and mixed committals can also be lengthy, if these are multi-defendant cases and/or the number of witnesses required to give evidence is extensive. These can last 1-2 days and in exceptional circumstances may require significantly longer.

The preparation and process around arranging these committal hearings can add both delay and burden to an already stretched system.

Following a number of commitments made by the Executive and the Department of Justice and recommendations from a number of inspection and scrutiny reports the Criminal Justice (Committal Reform) Act (Northern Ireland) 2022 was developed. The 2022 Act, which received Royal Assent on 7 March 2022, seeks to remove the need for oral evidence at the committal hearing, in line with Executive commitments.

The committal hearing will proceed as a paper based exercise via a preliminary inquiry. Victims and witnesses will not be called to give oral evidence at committal. The defence are able to make submissions in relation to the committal.

The removal of oral evidence at committal has a number of benefits including a simplified process, victims and witnesses will not be required to give evidence at the committal, only at the trial itself, which will reduce anxiety and stress and committal hearings will be less likely to be adjourned, or re-listed to a later date.

Q5. What cases do the new provisions apply to?

The legislation states that the new provisions do not apply in relation to proceedings instituted before the coming into operation of the relevant provisions in the 2022 Act so they apply to cases where proceedings are instituted on/after the coming into operation of the relevant provisions in the 2022 Act.

Q6. What is meant by “instituted”?

By virtue of section 5(3) of the 2022 Act[3] for the purpose of this change proceedings “instituted” is taken to be as described in paragraph 4 of Schedule 8 to the Justice Act (Northern Ireland) 2015[4].

In short, in cases where the accused is charged, or a complaint is made, or where an indictment is presented under the authority of section 2(2)(c), (d), (e) or (f) of the Grand Jury (Abolition) Act (Northern Ireland) 1969, on/ after 17 October 2022, the accused will be subject to the new provisions.

For an accused who has more than one of these dates in relation to their case, the earliest date will be used.

The new provisions do not apply to proceedings “instituted” before the relevant provisions of the 2022 Act come into operation.

Q7. Are any cases excluded from the new provisions?

No, if the provisions apply, preliminary investigations and mixed committals are abolished for those cases proceeding to the Crown Court for trial.

Q8. What do these changes mean for victims?

If the new provisions apply, victims will not be required to give evidence on oath at the committal, only at the trial itself, which will reduce anxiety and stress, and committal hearings will be less likely to be adjourned, or re-listed to a later date.

Q9. What do these changes mean for witnesses?

If the new provisions apply, witnesses will not be called to give evidence on oath at a committal, only at the trial itself, which will reduce anxiety and stress, and committal hearings will be less likely to be adjourned, or re-listed to a later date.

Q10. What do these changes mean for the accused?

If the new provisions apply, an accused cannot call victims and witnesses to give evidence on oath at a committal. The defence can make submissions. There are no other significant changes to the committal process for the accused.

Q11. What is the difference between the old and new committal process?

The new committal process will proceed as a paper based exercise via a preliminary inquiry. Victims and witnesses will not be called at a committal however, the defence can make submissions.

To support the new provisions Magistrates' Courts (Amendment) Rules (Northern Ireland) 2022 have been made. These rules make a number of amendments to the Magistrates’ Courts Rules (Northern Ireland) 1984, which outline the procedures, which are to be followed during a preliminary inquiry.

Q12. How will the new committal process work?

The committal hearing will proceed as a paper based exercise via a preliminary inquiry. Victims and witnesses will not be called to give oral evidence on oath at a committal however, the defence can make submissions. The processes in relation to the service of committal papers, disclosure, and exhibits will not change.

Q13. Will there be any changes to the committal papers?

There is a new form – Form 20A which informs the accused of when and where a preliminary inquiry will be conducted. This form details the date and venue of the preliminary inquiry and what documents have been served and where exhibits can be inspected. There are no other significant changes to the committal papers.

Q14. What training material is being developed to support implementation?

Each criminal justice organisation is responsible for training their own staff but the Department has developed a number of resources including an animation, Frequently Asked Questions (FAQs) and a leaflet to support implementation. The Department will engage with criminal justice organisations should any further requirements be identified.

Q15. What are the transitional arrangements?

The legislation states that the new provisions do not apply in relation to proceedings instituted before the coming into operation of the relevant provisions in the 2022 Act so they apply to cases where proceedings are instituted on/after the relevant provisions of the 2022 Act come into operation. For a period of time old and new provisions will run side by side.

Q16. How will you monitor success of the new provisions?

To coordinate the implementation of the committal reform provisions the Department has established a multiagency Committal Reform Programme led by the Committal Reform Programme Board. This includes representatives from relevant criminal justice organisations and has four projects including Business Change.

The Business Change Project is responsible for the identification, definition, tracking, realisation and optimisation of benefits within the programme.

Performance measures will be used to evaluate the success and effectiveness of the new provisions. Key measures include the number of suspects going through the new committal process under the new provisions, timeliness etc.

Q17. Are there any changes to legal aid?

The Legal Aid, Advice and Assistance (Northern Ireland) Order 1981 was amended to take account of the abolition of preliminary investigations and mixed committals. At present, the provisions for committal fees found in the Magistrates’ Courts and County Court Appeals (Criminal Legal Aid) (Costs) Rules (Northern Ireland) 2009 remain unchanged. A Legal Aid Impact Assessment has been undertaken and approved.

Q18. Will these provisions impact bail / remand in custody?

It is not intended that these provisions will have any effect on the current processes for bail or remand in custody.

Q19. Do the new provisions have any impact on the current direct transfer procedures under Article 4 of the Children's Evidence (Northern Ireland) Order 1995 and Article 3 of the Criminal Justice (Serious Fraud) (Northern Ireland) Order 1988?

No, the new provisions have no impact on the current direct transfer procedures.