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The Society's submission to the Criminal Justice ReviewThe following is the text of the submission made by the Society to the Criminal Justice Review group established under the Belfast Agreement: 1.
Introduction
1.1 The Law Society of Northern Ireland ("the Society") welcomes the process of review of the Criminal Justice System, initiated by the Government pursuant to the terms of the Belfast Agreement, and the opportunity it affords to all those with a vital interest-victims, defendants and professionals - to contribute to the future arrangements for the criminal justice process. The Society is aware of the extent of research being conducted by the Review Team and commends the broad approach adopted. Given the specialist and extensive resources available to the Review Team, the Society's submission is limited to matters within its members' direct knowledge and experience. Many aspects of the Review upon which no specific comment is made are, nevertheless, of interest and concern to the Society. The Society's submission is constrained not only by resources and time but also limited to those issues on which first hand comment from the profession is appropriate at this stage. Should further comment in response to proposals under consideration be of assistance to the Review Team, the Society would be available to provide additional submissions at a later date. 1.2 The criminal justice system does not operate in isolation from its social context, and many factors contribute to define the types of crimes, perpetrators, victims and the scale of these problems. For these reasons the opportunity provided by the Review to comment on policies and projects which could most effectively reduce crime, as well as being fundamentally desirable in human terms, is highly relevant to the criminal justice system. The Society's experience includes -daily examples of crimes and victims which could and should have been avoided, by earlier diversion from crime of the perpetrator. The public expenditure benefits of such a proactive approach are useful but secondary in importance to the societal benefit of preventing community and individual damage. However, while the Society would encourage and support the fullest possible consideration of such preventative work, the sociological and criminological expertise needed for detailed comment and recommendations are not available to us for the purposes of this submission. 1.3 In addition, the Society welcomes the opening up of debate on new forms of sentencing, including restorative justice. Recent examples, such as a magistrate requiring perpetrators to repair criminal damage appear sensible, and it is hoped that the Review will propose further research, pilot projects and development of other innovations along these lines. The Society shares concerns expressed in relation to systems operating in isolation and without proper integration with existing structures. There is a risk that purely 'community based' restorative justice will amount to vigilante groups being allowed to operate, with no accountability to an institution of the criminal justice system, and without vital safeguards such as independent adjudication and the right to legal representation. Although such measures are being proposed partly in order to deal with the lack of confidence in the criminal justice system which exists in some areas, the authorising of entirely autonomous justice systems does, in the view of the Society, carry serious dangers. 1.4 In the light of the extensive involvement of the police with the criminal justice system, the reforms appropriate will, as recognised by the Review Team, to some extent be contingent on the outcome of the Patten Commission. The Society's comments are, therefore, subject to developments following implementation of the Patten Report. 1.5 The Law Society has already indicated to the Review Team that the failure to include a practising solicitor among those appointed to assist the review was, in the opinion of the Society, a fundamental error in the establishment of the Review. Most offences are tried by Resident Magistrates with the defendant represented by a solicitor. In all criminal trials and pleas in which the Defendant is represented, the primary representative, involved directly with the client at an early stage, is a solicitor. The role of solicitors is central to the criminal justice system, along with the other key professions which are represented on the Assessors Group. The Society's submission is not an adequate substitute for the ongoing input which a Society representative on the Review Team would have allowed, bearing in mind in particular that thereby we have been precluded from access to research results and the benefit of study visits to assess comparative systems. The Society would, therefore, urge the Review Team to take particular note of the Society's views in the context of the centrality of solicitors to the system and the absence of a solicitor among the Group's assessors. We also urge that this fundamental defect be avoided in any subsequent evaluation or consultative process, which results from the Review. 1.
Introduction 2.1 The Society's members have frequently found that the process of prosecution in complex, borderline and indictable cases has become inordinately delayed where a police file is prepared for consideration by the DPP, and then has to await a DPP decision. In cases where further instruction for investigation or 9 taking of statements is required of the police by the DPP, the delay can become extreme. 2.2 The Society urges that procedures be introduced to ensure that the time taken for preparation of a file by the police is normally a matter of days, rather than the present situation of months of delay. The Society can see no reason why this cannot be achieved in the near future, with a reasonable standard of professional efficiency and human resources within the RUC. If specified maximum times permitted by way of Regulation are required to enforce the meeting of set targets, these should be introduced immediately, and need not be contingent on other reforms. 2.3 Likewise, the procedures and personnel must be put in place within the DPP's office to reduce significantly the time which is taken to process files presented by the police for decisions. It is not unusual for a period of six months to elapse between arrest and committal. This is demonstrated by the most recent statistics available to the Society on the operation of the Northern Ireland (Emergency Provisions) Act 1996. During the first quarter of 1999 in scheduled offence cases the average waiting time between remand and committal was 35.3 weeks (compared to 7.0 weeks from committal to assignment; and 7.1 weeks from assignment to hearing). The current extent of delays at this stage of the criminal justice system are unacceptable by any standards, and must be remedied. 2.4 Consideration should be given to the possibility of earlier DPP involvement as a method of reducing duplication in the process, and avoiding the bureaucratic drawbacks and delays of a file being passed between offices. If DPP staff had a pro-active role in directing the prosecution from the outset, there could be greater clarity and speed with benefits for all concerned. However, careful development of suitable models for such changes would be necessary, to maintain separation between investigation and prosecution, such as avoidance of individuals from the DPP's office routinely working with the same RUC officers. 2.5 The Review Team is urged to enquire specifically as to the reasons for these delays, and to identify the appropriate solutions, be they increased administrative efficiency and/ or resources, training for staff, improved information recording and communication systems, more suitably skilled staff in the relevant departments, protocols to create better co-operation and communication between the RUC and DPP and/or imposed time limits for the processing of all but the most exceptional cases. 2.6 The delays both in the RUC and in the DPP's office in processing prosecutions cannot rationally be excused on grounds of limited resources, given the costs of custodial remands, which are common in cases referred to the DPP. If an immediate redistribution of staff or of budgets is required to resolve this bottleneck, the Society considers that such a move must be prioritised, without waiting for the longer term reforms which may be included in the review recommendations. 2.7 The Society acknowledges that the severe delays which were previously common between committal and trial have, to a large extent, been successfully addressed. It should be noted that this was achieved through Practice Directions and a concerted focusing of attention on the problem, when it had reached embarrassing proportions for too many years. This illustrates what can be achieved with administrative, judicial and political will. 2.8 Ironically the welcome reduction in delays between committal and trial has led to other problems for the defence. The limited disclosure required of the prosecution, and critically, the absence of full legal aid prior to committal places undue pressures on the defence to complete preparation for trial, now that this interval is shortened. This difficulty could be remedied by various simple reforms, including the systematic and routine early disclosure of all evidence to the defence and the availability of legal aid allowing the commissioning of defence expert evidence and briefing of Counsel prior to committal. These improvements would bring about a significant and highly desirable further reduction in the time between committal and trial, where a case is to proceed. Furthermore, in an important minority of cases, earlier legal aid and thorough disclosure by the prosecution will lead to findings of no case to answer at the PE, rather than charges later being dropped or a subsequent acquittal. 2.9 The Society regards the provisions of the Criminal Prosecution and Investigation Act 1996 as retrograde, because complex legal decisions as to what evidence should be disclosed to the defence, are often in the hands of the police officer in charge of an investigation. Under the legislation the prosecution must identify and disclose anything which undermines the prosecution case. It appears unfair and inappropriate to ask an officer trained in the investigative processes to adopt, interpret and satisfy such a specialised legal test. The Society would prefer to see such crucial decisions being taken by lawyers within the DPP's office. Whichever organisation carries out this test, it is essential that full disclosure take place, at the earliest opportunity between arrest and prosecution. 2.10 In the experience of the Society's members the practice of weekly remand hearings is an expensive cause of frustration for all concerned. There appears to be a consensus that such frequent hearings achieve little and are of no benefit to either prosecution nor defendants. Remands for period of four weeks would be appropriate, with the option left open for either party to apply for a hearing in the interim, where necessary. The introduction of monthly rather than weekly remands, by consent, would be a significant saving in public expenditure in court staff, prison transport, legal aid defence claims and police or DPP costs, as well as freeing up magistrates time and allowing the reduction of delays. 2.11 The Society supports the retention of the present Committal process, and would not be in favour of a more limited procedure. The full rigors of the present PE/PI are necessary to ensure the proper exploration and testing of the prosecution case, prior to committal for trial. 2.12 While the Society would find the Scottish model of rigid time limits between charge and trial acceptable in principle, the difficulties explained above in relation to post-committal overload, perspective, as the system stands at present. However, in the event of the reforms sought by the Society being implemented, such a time bound procedure is seen as having considerable merit, not only for the prosecution, defence and the victim, but also for public perceptions of justice being seen to be effective. 2.13 The delays which occur between the arrest and/or interviewing of a suspect and his/her return for trial are currently such as to impede the effectiveness of justice. Where defendants are remanded in custody during a lengthy pre-committal period there is an unacceptable detriment in terms of human rights, as well as unjustifiable public expenditure. In cases where defendants are in custody but which do not proceed beyond PE, the injustice of current delays is particularly repugnant and damaging to public confidence in the judicial process. Even in circumstances where the defendant is bailed, the stress and weakening of witness evidence caused by several months delay is unfair to both victim and defendant alike. 2.14 In the event of ultimate conviction, the gross delays currently occurring result in sentences being imposed often a year or more after the offence. This must significantly reduce the efficacy of many sentences, especially where the defendant has not been remanded in custody, thereby undermining the ultimate objectives of the criminal justice system. 2.15 The Society's experience in practice is that the standard of decision making and prosecution by police prosecuting Inspectors is generally satisfactory, although there is some variation in individual competence. The high level of experience of many such officers, concentrating, as they do, apparently exclusively on this work, is seen as key to their ability to work effectively. To the extent that prosecuting Inspectors are able to function autonomously, they are in a good position to control a prosecution pragmatically and in constructive liaison with other professionals involved. The Review Team is asked to note the factors which have enabled this practice to be largely successful, namely the consistency of personnel in each court facilitating the development of effective, local, professional relationships between the parties, the continuity of individuals in the role allowing accrual of significant experience and the autonomy of the prosecutor allowing on-the-spot decisions. 2.16 Where there is a live issue of a lack of public confidence in the police, it is in the interests of all concerned not only to separate the investigation from the prosecution process, but for this publicly to be seen to be done. The direct handling of prosecutions by the police themselves has this drawback, but relates only to summary matters, and is to some extent ameliorated by the separation and autonomy of the prosecuting inspector as described. In relation to indictable offences, the independence of the DPP or prosecuting Counsel from the police as investigators is essential. 2.17 In England and Wales the DPP has an advisory role in relation to police prosecutions, providing 'backup' and a level of informal supervision. This does not, at present, apply in Northern Ireland and the Society would welcome the introduction of systems and regulations to set in place such a supervisory relationship by the DPP over police prosecutions. While the current system of police prosecutions is not basically flawed in practice, it does lack independent accountability and transparency. The provision of a monitoring and advisory role for the DPP over police prosecutions would establish a safeguard which is absent under existing procedures, in the spirit and practice of modern public service standards. Engendering confidence in the criminal justice system necessitates that if the police retain responsibility for summary prosecutions this power must be supervised and seen to be so. 2.18 Cases prosecuted at summary level by Counsel instructed by the DPP are, in the experience of defence solicitors, frequently hampered by the lack of authority held by such Counsel to deal with issues which arise at trial. It is extremely unsatisfactory for trials to be delayed due to the prosecuting Counsel having to telephone and await instructions from the DPP's office, in response to new developments. Either a representative of the DPP with authority should attend court or more prosecution should be carried out by 'in house' DPP counsel, holding the requisite authority. 2.19 The Society is aware of the drawbacks which were encountered with the introduction of the Crown Prosecution Service in England and Wales, and trusts that the Review Team will have full and up to date information and research results on this. Suffice for the Society to express the hope that lessons have been learned from the experience of the creation of the CPS, particularly in relation to the impossibility of any system which is inadequately funded being effective. 2.20 The role and appointment of the DPP and Attorney General are considered at section four, below. 1.
Introduction 3.1 The Society wishes to see a modernisation of the system of judicial appointments in the interests of justice, in the broadest sense: The procedure requires improvements to make it transparent and accountable in principle and in order to enhance public confidence in the criminal justice system; the development of a judiciary reflective of modern societal values as a whole should enable better judicial understanding of the perspective of court users of all types, without loss of legal quality. 3.2 The effect upon the civil justice system which would be inevitable from any significant reforms recommended by the Review Team in respect of judicial appointments, is a consequence of the work of the Review Team which is welcomed. 3.3 The Society believes the responsibility for judicial appointments should be that of a Commission, covering not only the criminal justice system. The Commissioners must include an adequate representation of solicitors, along with other relevant professions, including non-lawyers. 3.4 Open advertisement of all judicial appointments, job descriptions and personnel specifications in line with good employment practice should be axiomatic. 3.5 As to the content of such criteria for candidates in judicial appointments, make the introduction of such a requirement impractical from the defence the Society urges the Review to make full use of the opportunity for reform. Criteria should be defined and publicly stated, covering both the personal attributes and qualities appropriate to modern judges and the qualification requirements for judicial appointments. 3.6 The personal attributes were described by the Law Society of the Republic of Ireland in their submission to the "Working Group on qualifications and appointment as judges of the High and Supreme Court' in the Republic of Ireland, as 'merit criteria', identifying some twenty qualities, as 'indicators of likely judicial-competence. 3.7 In addition administrative, management, mediation/arbitration and Tribunal membership experience are specified as relevant criteria in judicial appointments. The Society would agree with its southern counterpart that such experience should be sought in judicial candidates to enhance the administration of justice. 3.8 Solicitors have in depth client contact and case management experience, providing them with the skills required for the judiciary of a competent, modern and professional justice system. While there is, clearly, a necessity for judges to have considerable experience of the relevant form of litigation, this does not have to be in the role of Counsel in order for the relevant knowledge and skills to develop. A solicitor conducting High Court litigation gains experience of the full range of process and outcomes. 3.9 The imbalance on the bench at present of lawyers with predominantly prosecution background requires redress, through selection criteria which seek defence and prosecution experience as of equal value. 3.10 In the senior courts, where judges do not sit alone, the Society would see a beneficial contribution being made to some benches by senior academic lawyers appointed to the judiciary. This might be appropriate in cases where judges with the speculums of academic legal knowledge hear appeals alongside judges with litigation experience. 3.11 In lower courts, the scope for appointment of solicitors to the bench is established, and increasingly recognised. The Society applauds the practice of creating part time judicial appointments as having merit in attracting lawyers wishing to work part time. This category may include lawyers, particularly women, wishing to combine professional and family commitments, thereby facilitating the needed redress of the gender imbalance on the bench. However, the Society has concerns about the combination of part-time judicial work alongside part-time practice as a solicitor or at the bar. Too little geographical separation may occur and there is presently a risk, at least, of the appearance of conflict of interest. Furthermore, this jurisdiction and the legal profession are very small, creating difficulties in ensuring adequate safeguards for judges also continuing to practice representing clients. If this practice is to be continued, stronger safeguards need to be enforced to ensure that even perceived potential conflict does not arise. 3.12 The Society would welcome the development of opportunities for career progression within the judiciary, and believes that this would be achieved through the introduction of an appointments system as described above, with criteria allowing credit for experience on the bench in the lower courts. The increase of this potential would attract a higher calibre of relatively junior lawyers to posts on the benches of the lower courts. 3.13 The Society does not see advantage in the addition of lay persons to benches at any level of the criminal justice system. Resident magistrates sitting in the Petty Sessions provide an appropriate mechanism for dealing with summary offences, which works well. 3.14 Recent proposals for creating the role of judicial assistants sitting with judges are welcomed by the Society as being highly suitable for both barristers and solicitors early on in their careers. 3.15 Judicial independence is a paramount principle, which cannot be compromised. However, the substance of judicial decisions can be distinguished from the procedures and practice, which can and should be subject to standards, defined in a publicly available code of practice. The difficulty of Code of Practice enforcement powers being held by an independent Commission may present unacceptable perceptions of infringement of judicial independence. The Society would, therefore recommend that responsibility for implementing administrative and service standards should be with the Lord Chief Justice assisted by a senior representative from each branch of the legal profession. While this may appear to differ little from the present position, the Society considers that the introduction of openly stated judicial standards would allow court users to know what they should expect and when they can challenge any action where they believe standards are not met. 1.
Introduction 4.1 Reform of the role of the Attorney General is a major constitutional issue, requiring extensive debate, and expert consideration as to the wide-ranging effects of any proposed new structures. The present combination of roles within the position of Attorney General is, primarily, threefold, and the Society sees dangers of conflict between these functions, particularly in a devolved administration. It is not, in the view of the Society, appropriate to place responsibility in one person for heading of the prosecution service, being guardian of the constitution, while also being the chief legal adviser to the government sitting in cabinet. The risk of conflict, as has arisen in Britain in the recent past, is too great, and the need for there to be no possibility of actual conflict should be the standard set. There are three distinct functions which should be separated and carried out by persons holding posts specific to the different roles of legal adviser to the government, protector of the constitution and chief prosecutor. Which of these functions retains the title of Attorney General is of lesser significance, as the other positions will have to be identified in suitable forms, specific to their role. 4.2 The practice under direct rule whereby the Attorney General for Northern Ireland has been the same person as the Attorney General for England and Wales, should be corrected as soon as is politically possible. The independence of the Northern Ireland judicial system at all levels below the House of Lords, does not need reinforcement to the Review Team. While there have been circumstances in the past which led to the merger of the posts, this cannot be appropriate in the future, and it is to be hoped that devolution will soon bring about a Department of Justice for Northern Ireland. 4.3 The legal adviser to the Government, with whatever title, should have a role similar to that currently played by the Crown Solicitors. 4.4 Appointment to the three posts currently encompassed within the Attorney General's office should be by public advertisement, without restricting either post to a particular legal profession, in the manner and to the standards recommended in respect of the judiciary, (see above at section three). Some aspects of the reform required to the role of the Attorney General depend on the structure and extent of devolution which will be given to the Government in Northern Ireland, which is currently uncertain. However, the Attorney General with this narrowed remit needs to be removed entirely from political control. Accountability should be considered carefully, to ensure a balance between independence of the Executive and complete lack of public accountability. A process such as impeachment at the hands of the Assembly (or before it is established, Westminster), and or a civil service type model should be explored. The drafters of the Bill of Rights will have to consider the appropriate and most effective mechanisms for enforcement, to be established and the remit and control systems for the post to which responsibility is given for protecting the constitution. 1.
Introduction 5. LAW REFORM AND DEPARTMENT OF JUSTICE 5.1 There should be no distinction between the process for law reform for civil and criminal matters. The Commission planned for civil law reform should have its remit extended to cover all law reform. The Commission will be required to take a pro-active role in identifying areas in need of reform, and in consulting widely to obtain all relevant views and expert opinions. 5.2 The Society welcomes the proposed establishment of a Department of Justice, as an appropriate administrative institution responsible for both the criminal and civil justice systems, but urges the implementation of suitable safeguards and protections, not only for judicial independence, but to secure rights to representation, access to justice and independent legal advice. 6.1 The presence of an independent forensic service in Northern Ireland is not frequently useful to defence solicitors, as it is commonly used by the prosecution first. The absence of alternative forensic services in the jurisdiction makes it often necessary for the defence to employ experts in Britain. The Society considers this matter to be one of market demand In the event that there is sufficient call for such specialist services in Northern Ireland, business opportunities are likely to be taken up, providing local expert witnesses, as occurs in respect of medical experts, who are, generally speaking, available within Northern Ireland. 6.2 In the meantime, significant legal aid expenditure will be incurred in bringing experts to the jurisdiction. However, no severe difficulties are caused to defendants and their representatives by having to use British based experts, subject to the availability of all of the legal aid costs involved. While the Society does require members receiving legal aid funds to account thoroughly for their claims, undue bureaucracy in some urgent situations can hamper representatives in getting the necessary evidence. 1.
Introduction The following is the press statement issued at the time of the publication of the Criminal Justice Review Report Law Society of Northern Ireland welcomes the publication of the Criminal Justice Review Report 30 March 2000 The Law Society of Northern Ireland welcomed the publication of the Criminal Justice Review Report and the opportunity afforded by the consultation process to consider further the detailed implications of these important recommendations. The Report is a far reaching and formidable contribution to the modernisation and improvement of the Northern Ireland criminal justice system. The issues it raises are of critical importance to the future administration of justice. It is right that the public and legal practitioners are to be given the chance to contribute to the debate. Mr John Bailie, Chief Executive of the Society, said, 'There is obviously much to digest in the Report. The Society will be examining and reflecting upon the proposals and commenting constructively from a professional perspective during the consultation period.' Commenting on some specific proposals, the President of the Society, Mr John Meehan, said, 'The Society has long advocated a greater degree of transparency and consistency in the process for appointing judges at all court levels. 'We are supportive in principle of the concept of a judicial appointments commission and have made proposals as to how this should be formed and how it should operate. 'There are obvious advantages in ensuring that criminal prosecutions are subject to independent evaluation and oversight. In our submission to the Review Group we were supportive of this in principle. We also warned of the necessity to ensure that any new prosecution service was adequately funded and that lessons were learnt from problems in other jurisdictions, notably the Crown Prosecution Service in England and Wales. 'We are looking forward to supplementing the submission we have already made as part of the consultation process.' [End] |